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Full text of "The war in Afghanistan : a legal analysis"

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 

PRESIDENT, NAVAL WAR COLLEGE 
Rear Admiral James P. Wisecup, USN 

PROVOST, NAVAL WAR COLLEGE 
Ambassador Mary Ann Peters (Ret.) 

DEAN, CENTER FOR NAVAL WARFARE 

STUDIES 
Professor Robert Rubel 

CHAIRMAN, INTERNATIONAL LAW 

DEPARTMENT 
Professor Dennis L. Mandsager 

CHARLES H. STOCKTON CHAIR OF 

INTERNATIONAL LAW 
Professor Richard J. Grunawalt 

INTERNATIONAL LAW DEPARTMENT 
Colonel Leo E. Boucher, JA, USA 
Commander Sandra K. Selman, USCG 
Commander James C. Kraska, JAGC, USN 
Lieutenant Colonel Peter R. Hayden, JA, USA 
Major Michael D. Carsten, USMC 

COMMANDING OFFICER, NAVAL WAR 

COLLEGE, RESERVE UNIT (LAW) 
Captain Charles T. Passaglia, JAGC, USN 

EDITORIAL OFFICE 
International Law Studies 
International Law Department 
Naval War College (36) 
686 Cushing Road 
Newport, RI 02841-1207 
Telephone: +1-401-841-4949 
Fax:+1-401-841-3989 
DSN: 948-4949 
E-mail: ILD@usnwc.edu 



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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 Bello 7 . 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 



Blue Books 



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). 



xv 



Blue Books 



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 

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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 

14 



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 

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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 

16 



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 



17 



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: 



18 



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. 



19 



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 



20 



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 press 52 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 

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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 

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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 



Adam Roberts 



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 

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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 2006 2 — 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 
Terrorism 6 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 Kooijmans 21 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 j n t he 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 case 45 and going through the Oil Platforms case of 2003, 46 the Wall 
advisory opinion of 2004 47 and the 2005 Armed Activities case. 48 Self-defense was 
also mentioned on a fifth occasion (the Nuclear Weapons advisory opinion of 
1996 49 ). 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 1 56 — 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 stated 64 — 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 restatements 67 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. 

61 



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 



63 



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- 
defense 24 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 c to 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. Murphy 1 



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. 

81 



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 1368 12 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 right 15 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 

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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 



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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 entirely 33 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 



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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 

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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. 



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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 

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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: 



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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 



97 



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 



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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 

99 



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 



103 



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 



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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. 



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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 terrorism 3 — 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 Statute 5 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 graphic 11 
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 Force 39 ) 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 

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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 temporally 65 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 



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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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Sean D. Murphy 



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 

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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 

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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 

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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 

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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 

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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 triggered 2 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 1373 3 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 resolutions 6 following the 

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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 Conventions 7 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 



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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 



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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. 



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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 lives 15 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 

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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 

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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 Sea 19 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 

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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 10 20 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 resolutions 24 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). 



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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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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 



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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. Bush 2 

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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 



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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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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 year 9 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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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 
2 13 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. 



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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 



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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 

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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 Treaties 39 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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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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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 

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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: 



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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. 

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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 memorandum 79 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 
memorandum 80 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. 

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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. 



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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. 



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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 3 8 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 



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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 



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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 



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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 

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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 



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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 

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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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Geoffrey S. Corn 



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. Rumsfeld 46 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 



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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 necessity 50 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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Making the Case for Conflict Bifurcation in Afghanistan 

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 



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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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Geoffrey S. Corn 



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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Making the Case for Conflict Bifurcation in Afghanistan 

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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Geoffrey S. Corn 



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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Making the Case for Conflict Bifurcation in Afghanistan 

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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Geoffrey S. Corn 



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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Making the Case for Conflict Bifurcation in Afghanistan 

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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Making the Case for Conflict Bifurcation in Afghanistan 

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 

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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 



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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 



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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 2 9 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 3 10 conflicts were being fought at the 



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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 



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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 State 30 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 3 34 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 



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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 

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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 Court 78 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 



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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 mistreatment 102 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." 



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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. 



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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. 



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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. 



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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 centuries 13 ] 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 

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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 



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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 

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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 



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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, 1998 58 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 
forces 64 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 

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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. 



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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 



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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 



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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 



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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. Mosby 94 is regarded as meeting Lieber's category of partisans, and therefore 
lawful combatants, while William C. Quantrill's private group of raiders in 
Missouri 95 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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Combatants 



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 



268 



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. 



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Combatants 



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 I 129 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. 



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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 



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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 

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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 



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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 

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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. 



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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 

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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: 



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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. 



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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 



284 



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 

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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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Combatants 



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. 



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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 



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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. 



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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. 



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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: 

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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: 



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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. 



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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. 



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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 



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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, 



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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). 



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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 



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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." 



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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. 



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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. 



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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. 



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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 

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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 



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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 time 7 . 

• 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? 

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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 weapons 25 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 folder 37 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 
measures 41 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 

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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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Targeting and International Humanitarian Law in Afghanistan 

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 



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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 



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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 

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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. 



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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. 



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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 



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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 

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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- 



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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. 



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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. 



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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 

346 



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 



347 



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 som