INTERNATIONAL LAW STUDIES

Volume 85

The War in Afghanistan: A Legal Analysis

Michael N. Schmitt

Editor

Naval War College

Newport, Rhode Island

2009

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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

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ISBN 978-1-884733-64-2

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INTERNATIONAL LAW STUDIES

Volume 85

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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)—C

3. Intervention (International law)—Congresses. 4. Humanitarian l

gresses. I. Schmitt, Michael N.

KZ6355.W37 2009

341.6—dc22

2009024594

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IN MEMORIAM

This book is dedicated to the memory of Professor Howard S. Levie

scholar, patriot and dear friend.

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Table of Contents

The War in Afghanistan: A Legal Analysis

BLUE BOOKS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

PART I: THE WAR IN AFGHANISTAN IN CONTEXT

I Afghanistan and International Security

Adam Roberts. . . . . . . . . . . . . . . . . . . . . . . . . 

II Terrorism and Afghanistan

Yoram Dinstein . . . . . . . . . . . . . . . . . . . . . . . . 

III International Legal Dynamics and the Design of Feasible Mis

The Case of Afghanistan

W. Michael Reisman . . . . . . . . . . . . . . . . . . . . . 

PART II: THE LEGAL BASIS FOR MILITARY OPERATIONS

IV Afghanistan: Hard Choices and the Future of International L

John F. Murphy . . . . . . . . . . . . . . . . . . . . . . . . 

V The International Legality of US Military Cross-Border Oper

from Afghanistan into Pakistan

Sean D. Murphy . . . . . . . . . . . . . . . . . . . . . . . 

VI Legal Issues in Forming the Coalition

Alan Cole. . . . . . . . . . . . . . . . . . . . . . . . . . . 

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PART III: THE CONDUCT OF HOSTILITIES

VII Afghanistan and the Nature of Conflict

Charles Garraway . . . . . . . . . . . . . . . . . . . . . . 

VIII Making the Case for Conflict Bifurcation in Afghanistan:

Transnational Armed Conflict, al Qaida and the Limits of t

Associated Militia Concept

Geoffrey S. Corn . . . . . . . . . . . . . . . . . . . . . . . 

IX Law of War Issues in Ground Hostilities in Afghanistan

Gary D. Solis . . . . . . . . . . . . . . . . . . . . . . . . . 

X Combatants

W. Hays Parks . . . . . . . . . . . . . . . . . . . . . . . . 

XI Targeting and International Humanitarian Law in Afghanista

Michael N. Schmitt. . . . . . . . . . . . . . . . . . . . . . 

PART IV: DETENTION OPERATIONS

XII The Law of Armed Conflict and Detention Operations

in Afghanistan

Matthew C. Waxman . . . . . . . . . . . . . . . . . . . . 

XIII US Detention of Taliban Fighters: Some Legal Consideration

Stephane Ojeda . . . . . . . . . . . . . . . . . . . . . . . 

XIV Rationales for Detention: Security Threats and Intelligence V

Ryan Goodman . . . . . . . . . . . . . . . . . . . . . . . 

PART V: STABILITY OPERATIONS

XV Jus ad Pacem in Bello? Afghanistan, Stability Operations and t

International Laws Relating to Armed Conflict

David Turns . . . . . . . . . . . . . . . . . . . . . . . . . 

XVI Stability Operations: A Guiding Framework for “Small Wars” 

Other Conflicts of the Twenty-First Century?

Kenneth Watkin . . . . . . . . . . . . . . . . . . . . . . . 

viii

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XVII The International Legal Framework for Stability Operations:

When May International Forces Attack or Detain Someone 

Afghanistan?

Marco Sassòli. . . . . . . . . . . . . . . . . . . . . . . . . 

XVIII Afghanistan Legal Lessons Learned: Army Rule of Law Opera

Eric Talbot Jensen and Amy M. Pomeroy . . . . . . . . . . 

PART VI: HUMAN RIGHTS ISSUES

XIX Is Human Rights Law of Any Relevance to Military Operation

Afghanistan?

Françoise J. Hampson . . . . . . . . . . . . . . . . . . . . 

XX Human Rights Obligations, Armed Conflict and Afghanistan

Looking Back Before Looking Ahead

Stephen Pomper . . . . . . . . . . . . . . . . . . . . . . . 

Appendix—Contributors . . . . . . . . . . . . . . . . . . . . . . . . . 

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

ix

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BLUE BOOKS

International Law

Studies/Documents/Situations/Decisions/Topics/Discussion

VOL 84

INTERNATIONAL LAW AND MILITARY OPERATIONS (Michael D. Carsten ed., 2008) 

Naval War College International Law Studies).

VOL 83

GLOBAL LEGAL CHALLENGES: COMMAND OF THE COMMONS, STRATEGIC COMMU

AND NATURAL DISASTERS (Michael D. Carsten ed., 2007) (Vol. 83, US Naval War C

national Law Studies).

VOL 82

THE LAW OF WAR IN THE 21STCENTURY: WEAPONS AND THE USE OF FORCE (Antho

ed., 2006) (Vol. 82, US Naval War College International Law Studies).

VOL 81

INTERNATIONAL LAW CHALLENGES: HOMELAND SECURITY AND COMBATING 

(Thomas McK. Sparks & Glenn M. Sulmasy eds., 2006) (Vol. 81, US Naval War Coll

tional Law Studies).

VOL 80

ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS (Richard B. Jaques ed., 

80, US Naval War College International Law Studies).

VOL 79

INTERNATIONAL LAW AND THE WAR ON TERROR (Fred L. Borch & Paul S. Wilson 

(Vol. 79, US Naval War College International Law Studies).

VOL 78

LEGAL AND ETHICAL LESSONS OF NATO’S KOSOVO CAMPAIGN (Andru E. Wall ed., 

78, US Naval War College International Law Studies).

VOL 77

LILLICH ON THE FORCIBLE PROTECTION OF NATIONALS ABROAD (Thomas C. W

James E. Meyen eds., 2002) (Vol. 77, US Naval War College International Law Stud

VOL 76

COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW (Michael N. Schmitt 

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 

L.C. GREEN ON THE OCCASION OF HIS EIGHTIETH BIRTHDAY (Michael N. Schmi

(Vol. 75, US Naval War College International Law Studies).

VOL 74

GEORGE K. WALKER, THE TANKER WAR, 1980–88: LAW AND POLICY (2000) (Vol. 7

War College International Law Studies).

VOL 73

ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW OF NA

TIONS (A.R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval War Coll

tional Law Studies).

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THE LAW OF MILITARY OPERATIONS: LIBER AMICORUM PROFESSOR JACK GRUNA

chael N. Schmitt ed., 1998) (Vol. 72, US Naval War College International Law Stud

VOL 71

THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENNIUM (Michael N. Schmit

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. 7

War College International Law Studies).

VOL 69

PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT (Richard J. Grunaw

King & Ronald S. McClain eds., 1996) (Vol. 69, US Naval War College Intern

Studies).

VOL 68

READINGS ON INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 1978

Norton Moore & Robert F. Turner eds., 1995) (Vol. 68, US Naval War College Intern

Studies).

VOL 67

LEGAL AND MORAL CONSTRAINTS ON LOW-INTENSITY CONFLICT (Alberto R. Coll, J

& Stephen A. Rose eds., 1995) (Vol. 67, US Naval War College International Law St

VOL 66

J. ASHLEY ROACH & ROBERT W. SMITH, EXCESSIVE MARITIMECLAIMS (1994) (Vol. 6

War College International Law Studies).

VOL 65

TARGETING ENEMY MERCHANT SHIPPING (Richard J. Grunawalt ed., 1993) (Vol. 6

War College International Law Studies).

VOL 64

THE LAW OF NAVAL OPERATIONS (Horace B. Robertson ed., 1991) (Vol. 64, US Nav

lege International Law Studies).

VOL 63

ALFRED P. RUBIN, THE LAW OF PIRACY (1988) (Vol. 63, US Naval War College Intern

Studies).

VOL 62

READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 1947–

Use of Force, Human Rights and General International Legal Issues (Richard B. Lil

Norton Moore eds., 1980) (Vol. 62, US Naval War College International Law Studi

VOL 61

READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR COLLEGE REVIEW 1947–

of International Law and an Evolving Ocean Law (Richard B. Lillich & John Norton 

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 Nav

lege International Law Studies).

xii

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HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT (197

US Naval War College International Law Studies).

VOL 58

WILLIAM T. MALLISON JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES 

AND LIMITED WARS (1966) (Vol. 58, US Naval War College International Law Stud

VOL 57

(Not Published)

VOL 56

NEILL H. ALFORD JR., MODERN ECONOMIC WARFARE: LAW AND THE NAVAL P

(1963) (Vol. 56, US Naval War College International Law Studies).

VOL 55

CARL Q. CHRISTOL, THE INTERNATIONAL LAW OF OUTER SPACE (1962) (Vol. 55, U

College International Law Studies).

VOL 54

NATO AGREEMENTS ON STATUS: TRAVAUX PRÉPARATOIRES (Joseph M. Snee ed., 

54, US Naval War College International Law Studies).

VOL 53

CARL M. FRANKLIN, THE LAW OF THE SEA: SOME RECENT DEVELOPMENTS (WITH P

REFERENCE TO THE UNITED NATIONS CONFERENCE OF 1958) (1959–60) (Vol. 53, U

College International Law Studies).

VOL 52

ROLAND J. STANGER, CRIMINAL JURISDICTION OVER VISITING ARMED FORCES (195

52, US Naval War College International Law Studies).

VOL 51

BRUNSON MACCHESNEY, SITUATION, DOCUMENTS AND COMMENTARY O

DEVELOPMENTS IN THE INTERNATIONAL LAW OF THE SEA (1956) (Vol. 51, US Nav

lege International Law Situation and Documents).

VOL 50

ROBERT W. TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA (1955) (Vol. 50, U

College International Law Studies).

VOL 49

HANS KELSEN, COLLECTIVE SECURITY UNDER INTERNATIONAL LAW (1954) (Vol. 4

War College International Law Studies).

VOL 48

INTERNATIONAL LAW DOCUMENTS 1952–53: Peace Treaties; Defense Agreement

Unions (Manley O. Hudson ed., 1954) (Vol. 48, US Naval War College Intern

Documents).

VOL 47

INTERNATIONAL LAW DOCUMENTS 1950–51: The Protection of Victims of War (Par

tions before 1949; Part II: Geneva Conventions of 1949) (Manley O. Hudson ed., 1952) 

Naval War College International Law Documents).

xiii

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INTERNATIONAL LAW DOCUMENTS 1948–49: International Organization; Trials of 

nals; Rights Claimed by Littoral States in Adjacent Seas; et al. (Manley O. Hudson ed., 

46, US Naval War College International Law Documents).

VOL 45

INTERNATIONAL LAW DOCUMENTS 1946–47: The Treaties of Peace of 1947; Instrum

nese Surrender; et al.(Manley O. Hudson ed., 1948) (Vol. 45, US Naval War College In

Law Documents).

VOL 44

INTERNATIONAL LAW DOCUMENTS 1944–45: Contraband of War; The Crimea Confe

Chapultepec; et al. (Payson S. Wild Jr. ed., 1946) (Vol. 44, US Naval War College In

Law Documents).

VOL 43

INTERNATIONAL LAW DOCUMENTS 1943: Visit and Search; Destruction of Prizes; Wa

fense Zones; et al.(Payson S. Wild Jr. ed., 1945) (Vol. 43, US Naval War College Intern

Documents).

VOL 42

INTERNATIONAL LAW DOCUMENTS 1942: Orders to American Military Forces in In

against Civilian Populations in Occupied Countries; et al. (Payson S. Wild Jr. ed., 194

US Naval War College International Law Documents).

VOL 41

INTERNATIONAL LAW DOCUMENTS 1941: Freezing of Japanese and Chinese Assets i

States; The Atlantic Charter; et al. (Payson S. Wild Jr. ed., 1943) (Vol. 41, US Naval W

International Law Documents).

VOL 40

INTERNATIONAL LAW DOCUMENTS 1940: Proclamations and Regulations Concernin

of the United States in the War between Germany and Norway; et al. (Payson S. Wild J

(Vol. 40, US Naval War College International Law Documents).

VOL 39

INTERNATIONAL LAW SITUATIONS 1939: Neutral Duties and State Control of Enterpr

ity Problems; Contiguous Zones; et al. (Payson S. Wild Jr. ed., 1940) (Vol. 39, US Nav

lege International Law Situations).

VOL 38

INTERNATIONAL LAW SITUATIONS 1938: Belligerent and Neutral Rights in Regard 

Force Short of War; et al. (Payson S. Wild Jr. ed., 1940) (Vol. 38, US Naval War Coll

tional Law Situations).

VOL 37

INTERNATIONAL LAW SITUATIONS 1937: Protection by Vessels of War; Naval Prote

Strained Relations; et al. (George G. Wilson ed., 1939) (Vol. 37, US Naval War Coll

tional Law Situations).

VOL 36

INTERNATIONAL LAW SITUATIONS 1936: Insurrection, Belligerency, Statehood; Visi

ternment of Aircraft; et al. (George G. Wilson ed., 1937) (Vol. 36, US Naval War Coll

tional Law Situations).

xiv

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INTERNATIONAL LAW SITUATIONS 1935:Vessels and Neutral Ports; Action during Civi

(George G. Wilson ed., 1936) (Vol. 35, US Naval War College International Law Sit

VOL 34

INTERNATIONAL LAW SITUATIONS 1934: Transfer and Capture; Interference with 

(George G. Wilson ed., 1936) (Vol. 34, US Naval War College International Law Sit

VOL 33

INTERNATIONAL LAW SITUATIONS 1933: Contraband and Blockade; Independent P

lands; et al. (George G. Wilson ed., 1934) (Vol. 33, US Naval War College Intern

Situations).

VOL 32

INTERNATIONAL LAW SITUATIONS 1932: Belligerents in Neutral Waters; Artificial St

Maritime Jurisdiction; et al. (George G. Wilson ed., 1934) (Vol. 32, US Naval War C

national Law Situations).

VOL 31

INTERNATIONAL LAW SITUATIONS 1931: Neutrality and Aircraft; Neutrality and Ter

ters; Belligerency and Maritime Jurisdiction (George G. Wilson ed., 1932) (Vol. 31, U

College International Law Situations).

VOL 30

INTERNATIONAL LAW SITUATIONS 1930: London Naval Treaty; Absence of Local Auth

erent Aircraft; et al. (George G. Wilson ed., 1931) (Vol. 30, US Naval War College In

Law Situations).

VOL 29

INTERNATIONAL LAW SITUATIONS 1929: Neutrality and Vessels; Status of Islands in P

Neutral Obligations (George G. Wilson ed., 1931) (Vol. 29, US Naval War College In

Law Situations).

VOL 28

INTERNATIONAL LAW SITUATIONS 1928: Maritime Jurisdiction; Carriage of Mail in T

Enemy Persons on Neutral Vessels (George G. Wilson ed., 1929) (Vol. 28, US Naval W

International Law Situations).

VOL 27

INTERNATIONAL LAW SITUATIONS 1927: Goods on Neutral Merchant Vessels; Visit 

Armed Merchant Vessels (George G. Wilson ed., 1929) (Vol. 27, US Naval War Coll

tional Law Situations).

VOL 26

INTERNATIONAL LAW SITUATIONS 1926: Continuous Voyage; Submarines; Angary

Neutral Ports (George G. Wilson ed., 1928) (Vol. 26, US Naval War College Intern

Situations).

VOL 25

INTERNATIONAL LAW DOCUMENTS 1925: REGULATION OF MARITIME WARFARE 

Wilson ed., 1926) (Vol. 25, US Naval War College International Law Documents).

VOL 24

INTERNATIONAL LAW DOCUMENTS 1924: INTERNATIONAL AGREEMENTS (Five Powe

of Naval Armament; Nicaraguan Canal Route; Danish West Indies; et al.) (George G. 

1926) (Vol. 24, US Naval War College International Law Documents).

xv

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INTERNATIONAL LAW DECISIONS 1923: Vessels (The Haelen, etc.); Armed Vessels (Sub

etc.); Search in Port (The Bernisse, etc.); et al.(George G. Wilson ed., 1925) (Vol. 23, U

College International Law Decisions).

VOL 22

INTERNATIONAL LAW DECISIONS 1922: The Berlin; The Miramichi; The Maria; et al

Wilson ed., 1924) (Vol. 22, US Naval War College International Law Decisions).

VOL 21

INTERNATIONAL LAW DOCUMENTS 1921: CONFERENCE ON THE LIMITATION OF 

(George G. Wilson ed., 1923) (Vol. 21, US Naval War College International Law Do

VOL 20

INTERNATIONAL LAW DOCUMENTS 1920: THE TREATIES OF PEACE WITH AUSTRIA 

HUNGARY AND PROTOCOLS AND DECLARATIONS ANNEXED THERETO (George G. 

1922) (Vol. 20, US Naval War College International Law Documents).

VOL 19

INTERNATIONAL LAW DOCUMENTS 1919: THE TREATY OF PEACE WITH GERMANY 

Wilson ed., 1920) (Vol. 19, US Naval War College International Law Documents).

VOL 18

INTERNATIONAL LAW DOCUMENTS 1918: NEUTRALITY, CONDUCT AND CONC

HOSTILITIES (George G. Wilson ed., 1919) (Vol. 18, US Naval War College Intern

Documents).

VOL 17

INTERNATIONAL LAW DOCUMENTS 1917: NEUTRALITY; BREAKING OF DIPLOMATIC 

WAR (George G. Wilson ed., 1918) (Vol. 17, US Naval War College Intern

Documents).

VOL 16

INTERNATIONAL LAW TOPICS 1916: NEUTRALITY PROCLAMATIONS AND REGULATIO

G. Wilson ed., 1917) (Vol. 16, US Naval War College International Law Topics).

VOL 15

INTERNATIONAL LAW TOPICS 1915: DOCUMENTS ON NEUTRALITY AND WAR (Georg

ed., 1916) (Vol. 15, US Naval War College International Law Topics).

VOL 14

INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1914:Classification of Public Vessels; 

Relating to Foreign Ships of War in Waters under the Jurisdiction of the United States; e

G. Wilson ed., 1915) (Vol. 14, US Naval War College International Law Topics and D

VOL 13

INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1913: Marginal Sea and Other W

mencement of Hostilities; Limitation of Armaments; et al. (George G. Wilson ed., 191

US Naval War College International Law Topics and Discussions).

VOL 12

INTERNATIONAL LAW SITUATIONS 1912: Merchant Vessels and Insurgents; Air Craft in 

Neutral; et al. (George G. Wilson ed., 1912) (Vol. 12, US Naval War College Intern

Situations).

xvi

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INTERNATIONAL LAW SITUATIONS 1911: Asylum in Neutral Port; Protection to Neu

Destruction of Neutral Vessels; et al.(George G. Wilson ed., 1911) (Vol. 11, US Naval W

International Law Situations).

VOL 10

INTERNATIONAL LAW SITUATIONS 1910: Coaling within Neutral Jurisdiction; Declara

Days of Grace; et al. (George G. Wilson ed., 1911) (Vol. 10, US Naval War College In

Law Situations).

VOL 9

INTERNATIONAL LAW TOPICS 1909: THE DECLARATION OF LONDON OF FEBRUA

(George G. Wilson ed., 1910) (Vol. 9, US Naval War College International Law Top

VOL 8

INTERNATIONAL LAW SITUATIONS 1908: Termination of Liability for Breach of Bl

Twenty-Four Hour Rule; Sequestration of Prize; et al.(George G. Wilson ed., 1909) (Vo

val War College International Law Situations).

VOL 7

INTERNATIONAL LAW SITUATIONS 1907: Fugitive from Cuban Justice at Guantanam

United States Auxiliary Collier in Foreign Harbor; et al. (George G. Wilson ed., 1908) 

Naval War College International Law Situations).

VOL 6

INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1906: Use of False Colors; Transf

Merchant Vessels during or in Anticipation of War; et al. (George G. Wilson ed., 1907

Naval War College International Law Topics and Discussions).

VOL 5

INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1905: Inviolability of Private Prop

Contraband of War; Restriction of Visit and Search; et al.(George G. Wilson ed., 1906

Naval War College International Law Topics and Discussions).

VOL 4

INTERNATIONAL LAW SITUATIONS 1904: Merchant Vessels Adapted for Conversion in

Cruisers; Rights of Foreigner under Martial Law; Asylum for Insurgent Troops on War 

(George G. Wilson ed., 1905) (Vol. 4, US Naval War College International Law Situ

VOL 3

INTERNATIONAL LAW DISCUSSIONS 1903: THE UNITED STATES NAVAL WAR CO

(George G. Wilson ed., 1904) (Vol. 3, US Naval War College International Law Dis

VOL 2

INTERNATIONAL LAW SITUATIONS 1902: Submarine Telegraphic Cables in Time of W

on Ships of War; Waters of Leased Territory; et al. (George G. Wilson ed., 1903) (Vol. 

War College International Law Situations).

VOL 1

INTERNATIONAL LAW SITUATIONS 1901: Coast Warfare; Contraband; Transportatio

Persons; et al. (John B. Moore ed., 1901) (Vol. 1, US Naval War College Intern

Situations).

xvii

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Foreword

From June 25 to 27, 2008, the Naval War College had the honor to c

International Law Expert’s Workshop, “The War in Afghanistan 

Analysis.” This volume captures the legal lessons of the war in Afghani

ported, studied and debated by a rare gathering of eminent scholars and 

ners of international law.

The workshop’s mission was to provide a comprehensive legal exam

the Afghan conflict—from the decision to use force, to the manner w

force was employed, to the legal construct for the evolution of military o

transitioning away from the use of force. Renowned international acad

legal advisers, both military and civilian, representing military, diplom

governmental and academic institutions from throughout the world co

to the workshop and this volume.

The historic International Law Studies “Blue Book” series was initiated 

val War College in 1901 to publish essays, treatises and articles that contri

broader understanding of international law. Dedicated to the memory of 

US Army colonel and esteemed friend of the College Howard S. Levie, t

fifth entry in the series stands as a proud exemplar of that tradition. Read

searchers will find herein a meticulous study of the Afghanistan conflict, a

profound implications for the future of international law and military op

The workshop and this “Blue Book” were made possible with generou

from the Naval War College Foundation and the Israel Yearbook on Hum

The International Law Department of the Center for Naval Warfare Stud

War College, hosted the workshop.

On behalf of the Secretary of the Navy, the Chief of Naval Operatio

Commandant of the Marine Corps, I extend our thanks and gratitude to 

ticipants, contributing authors and supporters. Your invaluable contribut

project and to the better understanding of the complex legal issues inv

prepared us to better meet and respond to future global operational chal

JAMES P. WISECUP

Rear Admiral, U.S. Navy

President, Naval War College

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Introduction

On October 7, 2001 the United States commenced Operation 

Freedom, striking terrorist training camps and infrastructure in 

stan to dismantle the threat posed by Al Qaeda and its supporters. Over th

seven years, the United States, NATO allies and coalition partners saw 

tion of the Afghan conflict reveal not only an entirely new paradigm of w

a test of the very structure and ability of international law to regulate a

flicts in the new millennium.

Since its founding in 1884, the US Naval War College has pioneered 

and teaching of the law impacting military operations. For three days in 

the College convened a unique colloquium of experts to take another lea

in the development and understanding of international law. The works

War in Afghanistan—A Legal Analysis,” drew together fifty of the wo

distinguished academics and elite practitioners of international law to 

comprehensive debate and explication of the conflict. Panelists and pa

engaged in thorough discussions germane to both the Afghan war and fu

tary operations involving the legal basis for the conflict, the law governin

duct of hostilities and the emerging legal framework to transition from 

to a stable peace.

This edition of the Naval War College’s internationally acclaimed Int

Law Studies (“Blue Book”) series captures the insights and lessons sha

workshop participants. Employing the Naval War College’s Decision 

Center resources, panelists were able to access participant notes from the

tations, augmenting and strengthening their own written work. The fru

discussions are contained in the eminent scholarship found in this volu

The workshop was organized by Major Michael D. Carsten, US Mar

of the International Law Department, assisted by Ms. Heidi Eldridge 

Jayne Van Petten. The workshop was made possible through the support 

val War College Foundation and the Israel Yearbook on Human Rights. W

dedicated efforts and support of these individuals and organizations, the 

would not have taken place.

I give thanks to Marshall Center Dean Michael N. Schmitt, the 

Stockton Professor of International Law, for serving as the editor of th

and to Jack Grunawalt and Captain Ralph Thomas, JAGC, US Navy (

undertook the lion’s share of the editing process with the assistance o

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Robert Huard, JAGC, US Navy Reserve (Ret.), and the staff of the Colle

top Publishing Department. I also extend thanks to Captain Charles T. 

JAGC, US Navy Reserve, Commanding Officer, NR Naval War Colleg

the reserve unit assigned to the International Law Department. His will

assist, often at a moment’s notice, made this publication possible. Alth

grateful to all the officers of the reserve unit, a special note of thanks goe

mander Eric M. Hurt, JAGC, US Navy Reserve, for his work in prepari

dex. This publication is a testament to their tireless efforts and devot

Naval War College and to the International Law Studies series.

Special thanks go to Rear Admirals Jacob Shuford and Philip Wisecup

current Presidents of the Naval War College, and Professor Barney Rube

the Center for Naval Warfare Studies, for their leadership and support in 

ning and conduct of the workshop, and the publication of this volume.

The International Law Studies series is published by the Naval War C

distributed worldwide to US and international military organizations, 

institutions and libraries. This year we have added a catalog of all prev

Books” right after the table of contents to facilitate research. Volumes 59

International Law Studies series are available electronically at http://w

.edu/cnws/ild/ild.aspx. This “Blue Book,” like its predecessors, exhibits 

War College’s long-standing dedication to the scholarly discourse and un

ing of legal issues at the strategic, operational and tactical levels.

Finally, and most importantly, we once again thank our friend and m

fessor Howard Levie, to whom this volume is dedicated, for his many 

contributions to the Naval War College.

DENNIS L. MANDSAGER

Professor of Law & Chairman

International Law Department

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Preface

It has become fashionable in law of armed conflict (LOAC) circles to 

whatever “war” one is considering, it is a new form of conflict, one 

lenges existing LOAC norms, uncovers lacunae in the law or reveals wh

norms have fallen into desuetude. Hybrid warfare, three-block war, po

war, asymmetrical war, the global war on terrorism—all have their propo

detractors, the latter claiming, often accurately, that the packaging of the 

this or that form of warfare is nothing more than old wine in new bottle

covery of new forms of warfare has become a cottage industry, one that 

fascinating . . . and distracting.

Such is the case with the war in Afghanistan and its attendant relatio

transnational terrorism, thrust into the global spotlight by the al Qaeda 

September 11, 2001 against the United States. Indeed, the conflict do

seemingly new features. Among these, the nexus with transnationa

terrorism is perhaps most prominent. The nexus has perplexed interna

practitioners and scholars considering such matters as the juridical chara

conflict, the status of its participants and the existence (or the lack t

belligerent occupation. Other unique normative issues are raised by th

matrix of forces found in Afghanistan—the Taliban, armed oppositi

such as the Northern Alliance, transnational terrorists, the US-led coali

prising Operation Enduring Freedom, Pakistani security forces operat

tribal areas and NATO, participating as the UN-sanctioned Internation

Assistance Force (ISAF). Further, the conflict has generated vibrant do

bates over, inter alia, counterinsurgency, counterterrorism and stabil

tions, which have thus far been somewhat starved for serious analy

broader international legal community.

This book attempts to begin painting the normative backdrop to the c

do so, the Naval War College’s International Law Department brought 

select group of international scholars and practitioners who have either 

expertise in the issues it raises or experience in providing legal advice to 

sponsible for conducting operations. This combination created a partic

tile environment in which to deconstruct and analyze the events of the 

years from both a practical and scholarly perspective. The chapters that 

the product of that sophisticated dialogue.

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Part I sketches the conflict and its legal issues in the broad sense. Pr

Adam Roberts explores Afghanistan in the context of international se

particular, he addresses challenges posed by fitting Western military 

practices and institutions to Afghan realities. Professor Roberts conclu

discussion of actual and possible future effects of the war on internation

including that on the United Nations and NATO, and offers a su

potential responsive policy choices.

Professor Yoram Dinstein addresses terrorism in the context of the c

distinguishes terrorism that is purely internal from that launched from 

country and perhaps warranting action in or against that foreign countr

ticular note, he deals with the issue of attacks by non-State actors and the 

seemingly settled in the aftermath of the attacks of 9/11 but thrust into co

by the International Court of Justice’s Wall Advisory Opinion, of wh

constitute “armed attacks” under Article 51 of the UN Charter. Professo

focuses on action against terrorists within a foreign country. He deals w

taken with the consent of that State, with action taken against the State 

with the timely issue of “extraterritorial law enforcement.” Also of parti

is his conclusion that the inter-State war that began on October 7, 2001 

unabated.

Part I concludes with a contribution by Professor Michael Reisman w

siders the relationship between the missions assigned by the political b

government and international law. He suggests that the feasibility of suc

and the costs to the nation in terms of life and treasure will be affected by 

of their compliance with the requirements of international law. Thus, 

Reisman argues, international law is directly relevant to the design of 

sions, suggesting that a “less-is-more” approach may be merited whe

tional expectations of lawfulness appear unlikely to support broader mi

Part II addresses the legal basis for the military operations that have 

ducted. Professor John Murphy argues that many of the issues raised with 

Afghanistan constitute major challenges to international law and intern

stitutions. They will require the United States and other members of 

community to make hard choices that will alter the future of internatio

support of his thesis, he examines the jus ad bellum, jus in bello, gover

roles of the United Nations and NATO, problems created by the use of th

eas in Pakistan as a safe haven by the Taliban and al Qaeda, and the imp

ghanistan on the current unstable political situation in Pakistan.

An examination of the international legality of US cross-border o

from Afghanistan into Pakistan by Professor Sean Murphy follows. H

their consistency with the jus ad bellum norms enshrined in Articles 2(4

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the UN Charter, an issue of relevance not only to events in that region, b

ogous operations elsewhere, for instance the Turkish operations in nor

and Colombia’s forays into Ecuador. According to Professor Murphy, se

provides a basis for those operations that respond to raids by militants f

stan into Afghanistan, so long as the US operations remain necessary an

tionate and the Afghan government consents to the presence of U

However, a broader right of self-defense against al Qaeda targets in Paki

on the attacks of 9/11 is, for Professor Murphy, far more problematic.

Part II concludes with a discussion by Commander Alan Cole of the R

as to the legal issues surrounding the formation of the ad hoc coalition e

to conduct operations in Afghanistan. He distinguishes the coalition c

Operation Enduring Freedom from the NATO-led ISAF. Commander 

cludes that operating two separate missions at two different tempos in 

country in an attempt to suppress the same enemy is a recipe for a confl

Nevertheless, he also concludes that the countries that contribute to th

have accommodated their legal differences in pursuit of mission succes

In Part III, attention turns to jus in bello conduct of hostilities issues

Charles Garraway begins by analyzing the character of the conflict, askin

the situation in Afghanistan, considered in the wider context of the war 

constituted a new paradigm which removed it from the extant law 

whether it was a mutation of an existing normative structure capable of a

dation within the current legal framework. He discusses the positions o

ous US agencies in their attempts to fashion a coherent policy for the Uni

pointing out that adoption of the State Department approach might 

rowed discussion to combatancy, thereby avoiding much of the contro

ensued on the characterization issue.

Professor Geoffrey Corn also tackles the characterization of conflict 

ing that characterization is an essential first step in determining the n

govern a conflict. He notes the difficulty of applying the traditional categ

ther international or non-international armed conflict. Professor Corn 

and develops a possible third category to address the situation of extra

military operations conducted by States against non-State actors, one 

“transnational armed conflicts.”

Three pieces addressing traditional law of war issues follow. Professor 

surveys various LOAC issues encountered during US ground combat in 

stan. He focuses on those that recurrently surfaced during the conferen

of the conflict, status of actors, detention, targeted killings, Guantanam

crimes prosecution.

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Mr. W. Hays Parks of the Office of the General Counsel at the US Dep

Defense takes on the issue of combatants, surely one of the most controv

anating from the conflict. He analyzes the Taliban’s status as a governme

combatant status of Taliban and al Qaeda fighters, explores the US ad

tion’s legal rationale for denial of prisoner of war status to captured al Q

Taliban personnel, and considers the law of war issue of special operatio

wear of indigenous attire. Mr. Parks concludes with an evaluatio

administration’s findings on these issues.

Professor Michael Schmitt’s contribution identifies and analyzes ta

sues during the conflict. He examines practices, with particular emphasi

terinsurgency doctrine, concluding that the policy restrictions ne

conduct such operations effectively greatly exceed those required by 

armed conflict.

Part IV looks at detention operations during the conflict. Professor 

Waxman dissects three issues—the minimum baseline treatment stan

quired as a matter of international law, the adjudicative processes interna

requires for determining who may be detained and how foreign military 

erating in a counterinsurgency transition detention operations to effecti

institutions. He also thoughtfully presents reflective observations reg

convergence of law and strategy.

Mr. Stephane Ojeda of the International Committee of the Red Cro

the law applicable to detention during armed conflict before turning to t

issue of the detention of Taliban fighters. He distinguishes detention d

period before the establishment of the Afghan transitional governme

2002 from that occurring thereafter. His analysis is premised on the exist

international armed conflict before June 2002 and a non-international a

flict thereafter. Mr. Ojeda concludes by suggesting that international hum

law, properly implemented, adequately addresses the various situatio

during the conflict vis-à-vis detention.

Professor Ryan Goodman next delves into the rationales suggested 

tion during the conflict, focusing on security threats and intelligence val

gins by affirming the applicability of the law of armed conflict to non-int

armed conflicts. Professor Goodman then turns to two central question

lawful to detain civilians who have not directly participated in hostilities 

it lawful to detain individuals for a long or indefinite period for the p

gathering intelligence? As to the first, he notes that the law of armed con

such detentions in appropriate circumstances, but cautions that US law 

pose additional requirements. Regarding the second, he rejects the pr

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individuals may be detained for long or indefinite periods solely for the p

gathering intelligence.

The final operational practice examined during the conference, stabi

tions, is addressed in Part V. Mr. David Turns of the UK Defence Acade

by surveying the place of stability operations within international law, s

the jus ad bellum and the jus in bello, and, within the latter, the law applic

ternational and non-international armed conflicts. He discusses applica

law of armed conflict to stability operations, including such issues as 

treatment and targeting of insurgents. Mr. Turns pays particular attent

practices and policies.

Brigadier General Kenneth Watkin of the Canadian Forces offers a sec

tion perspective, although his contribution is widely applicable to any 

gaged in such operations. He starts by outlining the definition, scope an

of stability operations, asking whether such operations are “new” or 

catch-all category for a variety of missions that have already challenge

writers and lawyers. General Watkin next tackles operations at the lower 

spectrum of conflict in an effort to ascertain the degree to which interna

has adapted to them. He continues by considering stability operations i

text of a coalition environment. General Watkin concludes by reflecti

American doctrinal approach to “war amongst the people.”

Professor Marco Sassòli offers a comprehensive analysis of the int

legal framework for stability operations, specifically addressing the issu

international forces can conduct attacks or detain individuals in these o

He usefully addresses these matters in the context of both the LOAC an

tional human rights law, examining which prevails in the event they le

ferent results. For Professor Sassòli, the answer to the question is t

specific circumstances attendant to a particular situation in which 

apply.

Finally, the focus on stability operations narrows as Lieutenant Co

Jensen of the US Army and Ms. Amy Pomeroy describe and discuss US 

of law operations. They highlight three lessons learned: (1) the need to 

rule of law operations into all phases and aspects of military operation

need to coordinate and synchronize the rule of law efforts of various 

cluding the host nation; and (3) the need for rule of law operations to 

based.

The book concludes in Part VI by focusing on a topic of particular im

in operations such as those conducted in Afghanistan—human rights la

sor Hampson begins consideration of the topic by asking whether hum

law is of any relevance to operations in Afghanistan. She analyzes five 

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(1) whether human rights law remains applicable when the law of arm

applies, (2) whether human rights law obligations apply extraterritoria

impact of the territorial State’s human rights obligations for other State

it, (4) the effect of a Security Council mandate on legal obligations that w

erwise be applicable, and (5) whether human rights notions offer usefu

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 Sta

ment, examines the US government’s approach to human rights obliga

ing the conflict in Afghanistan, pointing to issues with which 

administration will have to grapple. The Bush administration took the 

the law of war did not provide an adequate framework for addressing tho

sues that arise during a conflict with a non-State group, but argued tha

policy considerations weighed against filling the lacunae by resort to hum

law. He explores the topic by looking to, inter alia, the argumentation o

administration, including that bearing on International Court of Justic

and other case law, as well as Canadian litigation. Mr. Pomper sugges

Obama administration would be well served by considering this 

fashioning its own approach to the subject.

As the book was being finalized, the international law community was sa

learn that one of its giants, Professor Howard Levie, had passed away at 

101. Professor Levie had a long and distinguished service as a judge advo

US Army, including acting as a key drafter of the Korean War Armist

ment, before becoming a renowned academic at Saint Louis University. 

as the Charles H. Stockton Professor at the Naval War College in 1971–

mained active as a frequent lecturer at the College following his retireme

fessor Emeritus from Saint Louis and his move to Newport, Rhode Island

decades, Professor Levie mentored many young judge advocates and s

was my honor to be among them.

In 1998, the Naval War College published Levie on the Law of War to h

fessor Levie and to recognize the enormous impact of his writings on the 

cable during armed conflict. In the book’s Foreword, Professor Emeritus 

Grunawalt, the current Stockton Professor and former head of the Ocean

Policy Department at the Naval War College, observed:

Once in a great while, someone comes along who makes a significant and 

contribution to his or her chosen profession, a contribution that comes to d

paradigm of that calling. With respect to the development and articulation of th

war, Professor Howard Levie is just such an individual.

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This book is dedicated to the memory of Professor Howard S. Levie

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 Colle

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PART I

THE WAR IN AFGHANISTAN IN CONTE

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I

Afghanistan and International Secur

Adam Roberts*

Today there are remarkably few international wars. This does not 

end of war, which still continues, but it does mean that the type o

blematic of the contemporary era is not classic international war, but rat

of civil war familiar to students of colonial history: a conflict that may be

within a society, but becomes internationalized, involving foreign forces 

both sides. Very often such wars begin, and continue, because the struc

State is weak: this fact enables insurgents to operate, and it also results 

governments getting involved in various ways, not least in the attempt 

the State’s credibility and performance.Where there is more than one we

a region and a porous border area between, the opportunities for insu

magnified. In all these respects the ongoing conflict in Afghanistan is 

wars of the twenty-first century. Yet it is also unique, not only because 

tinctive attributes, but also because, as will be indicated below, it has had 

nary effects on international relations.

The central question that is explored here is: what are the implications 

Afghanistan for international security, not only in the region, but also m

ally? In exploring this question there is much to draw upon, not just from 

involvement in Afghanistan since 2001, but also from the past two ce

* Senior Research Fellow of the Centre for International Studies, Department of 

International Relations, University of Oxford, and President-elect of the British A

shortened version of this paper is Doctrine and Reality in Afghanistan, 51 SURVIVAL 

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Afghan history. However, we cannot foresee exactly how the present wa

clude. Events that may determine how it ends are by nature unknowable: 

ple, the accuracy or otherwise of an assassin’s bullet, another major scan

treatment of prisoners, bombings from the air resulting in massive civili

an al-Qaeda attack that alienates more than it mobilizes or the emerg

where of a new conflict which distracts attention from Afghanistan.

Despite these uncertainties, the central question can be approached b

first into four related questions about wars in Afghanistan and their in

international security.

• What have been the effects of previous wars in Afghanistan, part

the nineteenth century and in the Soviet period 1979–89, on reg

international security?

• How should the almost continuous wars in Afghanistan sinc

characterized, and what have been the effects of their Pakistani dimens

• What have been the roles of the United Nations in the long-runni

crisis, including its post-2001 post-conflict peace-building role and in 

the return of refugees?

• In the war since 2001, what problems have there been in fittin

military doctrines, practices and institutions to Afghan realities? Wha

the role of airpower? How has NATO performed in this una

commitment? Are counterinsurgency (COIN) doctrines fit for the pu

which they are being used in Afghanistan? And how can progress be ju

The exploration of the fourth question, which forms the main part o

vey, leads to the concluding discussion of the actual and possible futur

the war on international security, including on two major institutions, t

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 tra

Perhaps because several of us have had training in history, in Oxford U

research program “The Changing Character of War” we attempt to dra

distinction between what is new and what merely appears to be new. Th

is certainly necessary when considering the war in Afghanistan. It is ofte

modern wars constitute a “new paradigm.” This proposition depends, t

or lesser degree, on the implicit assumption that past international w

straightforward matter of so-called “conventional” forces fighting e

They were not. In considering what is unique about the ongoin

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Afghanistan, it may be useful to bear in mind two parts of the country

s 

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 g

scription of colonial conflicts offered by Major C.E. Callwell of the Roy

in 1899 in his justly famous manual Small Wars.Callwell himself had serv

the closing stages of the Second Anglo-Afghan War, when he marched th

Khyber Pass to join the Kabul field force.1 It was on the basis of experien

wrote two decades later:

Small wars are a heritage of extended empire, a certain epilogue to encroachm

lands beyond the confines of existing civilization, and this has been so from e

to the present time. Conquerors of old penetrating into the unknown enco

races with strange and unconventional military methods and trod them down

their territory; revolts and insurrections followed, disputes and quarrels with t

the borders of the districts overcome supervened, out of the original cam

conquest sprang further wars, and all were vexatious, desultory, and harassing. 

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 m

paigns in Afghanistan, in 1839–42 and 1878–80. The first, fought ostens

sist a weak ruler and to provide a friendly buffer State on India’s northw

was a hubristic enterprise that was marked by disaster—the wiping o

duced garrison as it struggled back to the Khyber Pass.3 The second war, 

fought to counterbalance Russian influence in Afghanistan, provided 

that apparent success in Afghanistan can be quickly followed by uprisin

backs. The British, having defeated the Afghan State, had no political so

cept to appoint a suitable “warlord” as head of State. What did Callwell h

specifically about the type of war that had been encountered in Afghan

elsewhere in the late nineteenth century? His words are as pertinent toda

they were penned over a century ago:

With the capture of the capital any approach to organized resistance, under th

control of the head of the State, will almost always cease; but it does not by an

follow that the conflict is at an end. . . . [T]he French experiences in Algeria, 

British experiences in Afghanistan, show that these irregular, protracted, in

operations offer often far greater difficulties to the regular armies than the att

of their original military objective.4

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The wars in Afghanistan in the nineteenth century have been the foun

a view of the country and its peoples—especially the latter—as unusuall

to any kind of foreign influence or control, actual or perceived. David 

veteran BBC reporter on Afghanistan who has charted these previous co

gues that mistakes are being repeated today because of a neglect of the st

tory. He charges that the United States and Britain have failed to unde

extent of resistance in Afghanistan to anything that looks like foreign 

follows, states Loyn, that it is necessary for outsiders to accept a very lim

and to negotiate with the Taliban.5 This is one important perspective on w

ghanistan. However, it should not be taken to imply that there is uniform 

to all foreign influence. Both between and within Afghanistan’s disti

groups there is a long tradition of bitter contestation, and in all Afghanis

some groups have had arrangements of one kind or another with outsid

and powers.

Much of the country’s history exposes the fragility of the idea of t

State. Twentieth-century Afghanistan was characterized not only by w

foreigners, such as the Third Anglo-Afghan War, of May 1919, but al

wars, assassinations and coups, as in the conflict of 1928–31 and the s

power by Daud Khan in 1953 and 1973. Throughout the twentieth cen

was a continuous interplay between the development of constitution

ment and the continuation of political violence. The role of the Pashtun 

Afghanistan was one of many bones of contention. The political culture o

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 Afghanis

mujahidin adversaries had major effects on international politics. In part

war had a vast impact in the Soviet Union. It accentuated the Soviet Uni

of imperial overstretch, contributed to a decline of faith in the use of forc

tain the empire and accentuated doubts about a central purpose of Sov

policy—the maintenance of a network of dependent, demanding and har

lar socialist regimes in an assortment of countries around the world. It fo

of the background to the role of civil resistance movements in central an

Europe pursuing their struggles by non-violent means to a successful o

1989. In short, the Afghan war contributed to the collapse of the Sovi

This very fact is not only proof of the fateful consequences that may flow 

in Afghanistan, but is also one driver of the present war. Osama Bin 

made no secret of his belief that, having helped to destroy the Soviet 

aims to do the same for the United States. One down, one to go! This w

6

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only case of post

Cold War hubristhere were also many variants of t

tion elsewhere, including in the British and American governments—b

notably severe one. Bin Laden’s interpretation of events led him to 9/1

gulfed Afghanistan in continuing war.

There were other ways in which the Soviet-Afghan war led to subseq

The channeling of much international aid to mujahidin groups throug

reinforced the fateful link between events in Pakistan and those in Af

The power of non-State groups and regional military chiefs, and their te

rely on threats and uses of force not controlled by any State, became m

engrained than before in both Afghanistan and the frontier areas of Pak

religious element in Afghan politics—which was particularly promin

struggle against Soviet influence, and was encouraged by the outside p

provided much-needed finance and weapons for the mujahidin—did 

pear with the departure of Soviet forces in 1989. Indeed, within a few 

gious warriors trained in the hard school of combat against Soviet 

Afghanistan were to turn up in a wide range of other locations, including 

mer Yugoslavia.

These legacies of the war against Soviet control remain most imp

Afghanistan itself. The problems of non-State violence, regional riv

the religious element in politics are not new to Afghanistan, but they 

forced. Long-held suspicions toward certain types of foreign presence 

prominent.

II. The Wars in Afghanistan since 1989

The current multifaceted and complex situation in Afghanistan is best u

as the continuation of a protracted war over the country’s future wh

many years before 2001. Understanding its character is important not o

veloping military and political policy in the country, but also for unders

likely impact on international security generally. There are fundamen

ences of understanding about its nature.

Whether viewed as a war or a stabilization mission, there is a tenden

sent the situation as a conflict between an essentially progressive ca

sented by the Karzai government in Kabul on the one side, and two r

Islamist forces on the other: the Taliban and al-Qaeda. This view may be 

in its views both of the Afghan government and of its opponents. Most 

it tends to overstate the effectiveness of the Afghan government. It al

states the importance of ethnic/linguistic divisions within Afghanistan, 

largest ethnic group, the Pashtuns, constitutes over 40 percent of the p

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Elements of Afghan and Pashtun nationalism play a significant part in 

tance to the Afghan government and its foreign backers. A review of t

years’ crisis in Afghanistan since the Soviet withdrawal, and of the plac

stan in that crisis, is necessary for an understanding of the nature of thi

The Crisis since 1989

Following the withdrawal of the last Soviet forces from Afghanistan i

1989, an internal crisis and war erupted. Indeed, the war within Afgha

ways involving patrons around the region to sustain the war efforts of t

can be traced back further, and can be said to have begun in about 19

never really ended. Throughout the two decades since 1989 there have 

tinuing regional rivalries and ongoing conflict between modernizers and 

There have been two moments when the conflict was viewed by some 

ended—after the Taliban victory in September 1996 and after the Nort

ance victory in December 2001.7 However, on both occasions the confl

ued in new forms.

This first phase of Afghanistan’s long-running war following the de

Soviet forces was only partially concluded on September 26, 1996 when 

to the Taliban, which established a theocratic style of government throu

areas under their control and in 1997 renamed the country “Islamic Emi

ghanistan.” Then and thereafter the Northern Alliance continued to 

area of northern Afghanistan and to challenge Taliban rule.

From October 7, 2001 onward, following the al-Qaeda attacks in t

States on September 11, direct US and coalition military intervention in 

stan changed the character of this continuing war. Of course it did not 

the situation completely: resistant to change as ever, rival warlords sough

tain their fiefdoms against intervention unless it could offer more by ext

chance of collaboration. However, there was now an undeniably interna

inside Afghanistan. There was not much doubt that this was, for a few m

international war in the sense of a war between sovereign States—the US

tion versus the Taliban government of Afghanistan. In November–Decem

the US-led intervention, and the military campaign of the Northern Alli

pled the Taliban regime, which had been supported by al-Qaeda. This m

tion was widely, though not universally, viewed as a justifiable respo

Taliban for having allowed Afghan territory to be used for preparing atta

United States, and additionally had the effect of freeing Afghanistan fro

popular regime. Initially there was much popular support in Kabul and 

for the incoming forces of the International Security Assistance Force (

this situation was to change.

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The international war of October

December 2001 had been superim

two other more enduring conflicts: the non-international armed conf

Taliban versus Northern Alliance, and the US-led struggle against al-Qae

ists. Both of these “other conflicts” continued. The war against al-Qae

lated terrorists, who were now based in Pakistan as well as Afghanistan, 

without interruption. In addition, there was growing resistance in sou

ghanistan to the new regime. This insurgency began relatively slowly, so 

riousness was not recognized for some time.

How should this resistance be characterized? It is commonly labe

Taliban insurgency, a description which may conceal the possibilitie

sources of support for the insurgency have been more numerous than 

“Taliban” suggests, or that the ideology of the Taliban may have evolve

surgent movement has drawn on elements of both Afghan and Pashtun 

ism, it has operated alongside traditional forms of social organization an

of justice, its recruiting has been facilitated by Afghanistan’s high levels 

ployment and by the fact that it is able to pay its soldiers, and its willingn

port poppy cultivation not only increases its acceptance in certain pro

also exposes the incoherence of the policies of the various NATO countr

issue.8 None of this is to suggest that all those forces labeled Taliban shou

simply as heroic patriots or as Pashtun traditionalists. Ahmed Rashid h

The United States and NATO have failed to understand that the Taliban b

neither Afghanistan or Pakistan, but are a lumpen population, the product o

camps, militarised madrassas, and the lack of opportunities in the borde

Pakistan and Afghanistan. They have neither been true citizens of either cou

experienced traditional Pashtun tribal society. The longer the war goes on, t

deeply rooted and widespread the Taliban and their transnational milieu will b

Into this ongoing conflict a new element was added from 2005 onwa

volvement in combat activities of contingents of the NATO-led ISAF. Th

authorization of ISAF in 2001 had been “to assist the Afghan Interim Au

the maintenance of security in Kabul and its surrounding areas, so that t

Interim Authority as well as the personnel of the United Nations can o

secure environment.”10 Initially, in January 2002, the United Kingdom 

lead in organizing ISAF, followed at six-month intervals by other “lead S

til NATO as such took over in August 2003. ISAF’s remit gradually exten

Afghanistan and in some provinces came to involve direct combat.11 By 

comprised troops from thirty-two countries. Those deployed in the south

inces of Afghanistan became increasingly geared to a counterinsurgency 

This campaign had not been part of ISAF’s original role: the transi

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involving a gradual stretching of the initial mandate, resulted in some un

uneven burden-sharing between NATO member States. Thus NATO ha

in the unenviable position of staking its impressive reputation on the outcom

tant and little-understood war in a country well known to be a graveyard 

military adventures.

The problem is exacerbated by the limited nature of the involvement of o

military and civilian—in Afghan society. In the years since 2001, both so

civilians have generally had short-term tours of duty. Few of them have l

relevant languages, and there is remarkably limited institutional mem

cially as regards knowledge of local communities and political tradition

on the civilian side there has been a conscious break from the experience 

administration, which has meant, unfortunately, a break from understa

society’s structure and the tangled history of its links with outsiders.

One special feature of the ongoing war in Afghanistan that distinguish

certain other post–Cold War US involvements has been that the US-led 

at the start significant allies within the country: originally the Northern 

then the government of Afghanistan. This made the Afghan involvemen

from some of the other conflicts in which the United States has been 

including Iraq in the first years of the US-led presence and Somalia ov

longer period, in neither of which were there strong local forces in 

which to work.

However, this apparently favorable situation had inherent limitation

vulnerable to change. Even after its capture of Kabul in December 2001, t

ern Alliance, which at the best of times was an unstable coalition, never 

all of Afghanistan. The Afghan authorities conspicuously lacked the bu

backup that provides the essential underpinning of most governments a

world. The Pashtuns generally resented the Northern Alliance’s US-as

tory; and when, around 2003–04, the Pashtuns came back strongly in th

ment (thanks to the new constitution and law on political parties), Afgha

critical of the United States found a voice. Indeed, the boot was now on 

foot, with minorities complaining of Pashtun nationalism and structu

sion. In short, the social foundations of the foreign presence in Afghanist

to be weaker than they had first seemed in 2001–02.

In legal terms, there has been a tendency to focus attention on the q

whether particular aspects and phases of the ongoing war in Afghanistan 

characterized as “international,” “non-international” or something else

problem with debates on this topic is that the passion for pigeonholin

structing understanding of a complex reality. Actually the wars in A

have been all of these things. If one were forced to apply a single label 

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aspects, it would probably be 

internationalized civil war,an underex

important category of wars. Yet whichever of these terms is adopted has 

ited relevance to, or effect on, policy making. Although technically it i

more rules apply to international war than to non-international armed c

this case most of the powers involved in the war do at some level recogniz

for restraint in the conduct of the war, a matter discussed further below

The Pakistani Factor

Afghanistan’s neighbors—including China, Iran, Tajikistan, Turkmen

Uzbekistan—all have legitimate interests in the country and its long-run

flicts. Many other States, including India and Russia, also have legitimat

in whether Afghanistan can manage to stay together, make progress in 

ment and attract refugees back. Of all the relationships with other States

Pakistan is the most complex, and has contributed most to Afghanistan

divisions.

All borders are artificial constructs created in peoples’ minds. Thus in 

hardly a remarkable statement to say that the border between Afghan

Pakistan—the Durand Line imposed by the British on a reluctant Afgha

ment in 1893—is artificial. What is significant about this border is tha

on either side of the line view it as artificial. This does not mean tha

committed to a definite idea of a new state of “Pashtunistan” separate 

Pakistan and Afghanistan. Rather it means that conflicts on either side 

immediately acquire a cross-border and therefore an international d

What creates an issue, both for governments and peoples, is its chron

ness, the existence of linked conflicts on both sides of it, the strength of 

of common identity and experience that link Pashtuns in Afghanistan 

stan, and the inherent weakness of both of these States. It is too simple 

the frontier areas of both States are ungovernable: they have their own 

authority, which leave little room for control by the State.

Pakistan’s Federally Administered Tribal Areas (FATA), which run 

border with Afghanistan, remain almost completely outside the control 

kistani government, and have provided fertile ground for the exercise 

nance by the Taliban and al-Qaeda. They are a legacy of empire. The B

also practiced containment, occasional chastisement and periodic negoti

resistance meant that a final occupation was simply too expensive to jus

perial terms. One remarkable feature of this situation is that successive 

governments have had no counterinsurgency policy in these areas. O

sweeps and demonstrations of firepower are in no way substitutes for a se

icy aimed at gaining a degree of consent from the population or the pow

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The United States has not used the power that ought to come with its 

support for Pakistan to persuade it to adopt a strategy in these areas. T

constitutes a haven for terrorists that is in some respects comparable to th

existed in Afghanistan before 2001.

Overlapping with all this, and compounding the problem of relation

the two countries, is the fact that opinion in Pakistan generally on matte

to the use of force has never favored the US vision of the “War on Terro

World Service Poll in twenty-three countries, published in September 2

asking respondents to indicate their feelings regarding al-Qaeda, found 

of support for it in Pakistan. This was combined with a mere 17 percen

stanis stating that they had negative views of al-Qaeda, the lowest propor

spondents in any of the countries polled.12 However, this may reflect mo

to take an anti-US position than an acceptance of terrorist bombings. 

four weeks in the autumn of 2008 an anti-terror petition in Pakistan—“T

Us”—attracted almost sixty-three million signatures in what is possibly t

such lobbying effort anywhere in the world.13 The responses to terrorist 

in Pakistan in early 2009 do not suggest general support for the acts of t

The Pakistani connection has deeply affected events in Afghanistan 

wars there since the Soviet intervention in 1979. Throughout, Pakista

Services Intelligence has had a major, and not always controlled, role. In 

Pakistan, with massive Western support, provided crucial assistance fo

Soviet rebels in Afghanistan. Then from 1994 onward there was extensive 

official support for the Taliban movement in Afghanistan.14

In the ongoing war in Afghanistan a number of consequences in th

field have flowed from the Pakistani connection. The first is that, since Pa

either side of the border are more likely than most others to view the We

tary presence in Afghanistan as illegitimate, there is inevitably a transb

terland for the insurgency. Second, since Pashtuns play a large part in th

Army—and in the Frontier Corps, which comes under the Ministry of 

there are built-in difficulties in Pakistani government attempts to im

capital’s rule by force on the various Pashtun-inhabited areas.15 As a cons

these two factors, the insurgency in southern Afghanistan is likely for the f

future to have safe base areas inside Pakistan. In sum, like so many border 

the world, the Pakistan-Afghanistan border presents excellent opportuni

organization and continuation of insurgency. The fluidity of the situatio

sides of the border suggests that there are not two wars in the region, but 

This creates the third consequence of the Pakistani connection: the st

sure on US military leaders to take the war unilaterally into the territor

stan. US policy toward Pakistan notoriously lacks strategic coherence.

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that the United States considers the Pakistani authorities unreliable, w

elements willing to pass on intelligence to US enemies, means that the U

role on the territory of Pakistan cannot be based on close military cooper

result, US military action in Pakistan is bound to be perceived as an inf

of Pakistan’s sovereignty. The US killings of Pakistani soldiers in several 

dents, and the strong reactions to this in Pakistan, confirmed the chao

flammatory character of the situation.17 George Bush’s presidential ord

2008, authorizing US strikes in Pakistan without seeking the approval o

stani government, while an understandable reaction to a troubling situat

border, risks further destabilizing a country that is a crucial if deeply fla

It is sobering to reflect that the Soviet Union, in the course of its counteri

operations in the 1990s, engaged in hundreds of cross-border strikes in 

getting few if any results from them.19

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

The United Nations has a long history of involvement in the conflicts in 

stan and such a continuing commitment there that failure would imp

UN’s already tarnished reputation. There have been three main phases 

volvement: during the Soviet war from 1979 to 1989, in the largely c

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

Soviet Union could veto any direct UN involvement in the conflict, so th

referred the matter to the General Assembly under the UN’s “Uniting 

procedure.20 From then on the conflict was mainly handled in the Genera

and in the office of the Secretary-General. In January 1980 the General 

called for “the immediate, unconditional and total withdrawal of th

troops from Afghanistan.”21 Subsequently, under the auspices of the 

General, the UN initiated a “good offices” function to assist negotiations 

the Afghan and Soviet governments on the one hand, and Pakistan on 

This led eventually to the April 1988 Geneva Accords on Afghanistan, w

a crucial landmark in the ending of the Cold War.22 Later in 1988 the 

Offices Mission in Afghanistan and Pakistan (UNGOMAP) was establish

was the first UN peacekeeping mission since the establishment of Unite

Interim Force in Lebanon in March 1978, evidence of the key part 

Afghan events in the post–Cold War re-emergence of the UN.

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At the same time, the process of ending the Soviet involvement pose

dilemma for the United Nations. The internal conflict presented the delica

of the extent to which the United Nations, as an organization of gov

could be seen to negotiate with rebel forces that were battling it out throu

country. As Secretary-General Javier Pérez de Cuéllar put it in 1988, it 

“against our philosophy to be in touch with the enemies of governme

that is exactly what the United Nations started to do in the following year

tempt to facilitate a comprehensive political settlement and to set up a br

government. In presenting the United Nations with this dilemma, the war i

stan was truly characteristic of the post–Cold War era. The UN’s limited 

persuading the parties to a largely internal conflict to agree to a peace 

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 diff

lenge for the United Nations. By March 1990 UNGOMAP, having com

key mission of observing the Soviet withdrawal, was wound up. Yet th

chaotic situation on which the Security Council, the General Assemb

Special Representative of the Secretary-General had remarkably little c

influence events. The General Assembly established the UN Special Mis

ghanistan (UNSMA) in 1993, in the distant hope of facilitating nat

prochement and reconstruction.25 The post of Special Represen

Afghanistan, who headed the mission, was held successively by two of 

and most experienced UN troubleshooters, Lakhdar Brahimi and 

Vendrell. However, they could achieve little in UNSMA’s lifetime, whic

2001–02.

At the same time the Security Council gradually became more activel

with Afghanistan. One month after the Taliban came to power in Septem

the Council passed a resolution which staked out a number of critically 

positions. As well as stating its unsurprising conviction that “the Unite

as a universally recognized and impartial intermediary, must continue t

central role in international efforts towards a peaceful resolution of t

conflict,” it called for an immediate end to all hostilities, denounced the 

nation against girls and women, and called for an end to the practice

made the country a fertile ground for drug trafficking and terrorism.26 Then 

1998, following an upsurge in the fighting between the Taliban and the 

Alliance, the Security Council passed a further resolution, again setting 

useful principles. It noted that there was “a serious and growing threat t

and international peace and security, as well as extensive human sufferin

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destruction, refugee flow and other forcible displacement of large numbers 

it expressed concern at “the increasing ethnic nature of the conflict”; i

the fact that, despite numerous UN pleas, there was continuing foreign in

condemned the attacks on UN personnel in the Taliban-held areas; cond

Taliban’s capture of the Iranian Consulate-General in Mazar-e-Sharif; 

that “all parties to the conflict are bound to comply with their obligati

international humanitarian law”; and demanded the Afghan factions “

from harboring and training terrorists and their organizations and to 

drug activities.”27 In October 1999, it imposed sanctions on the Taliban 

Afghanistan:28 arguably this decision undermined whatever was left of 

good-offices mission. The Council may have been ineffective in the 1990

in Afghanistan, but it was certainly not asleep. Some of the positions t

staked out would be important for the future, in that they provided 

subsequent tough action against the Taliban and for serious efforts to r

Afghan State.

UN Roles in the War since September 2001

The attacks on the United States on September 11, 2001 were a clear ind

the connection between Afghanistan and international security. In 1996 

the Council had warned of the terrorist danger in Afghanistan. Now it wa

more prominent role, giving implicit authorization to the US-led use of 

becoming deeply involved in the subsequent reconstruction of Afghani

The most significant acts of the Council after 9/11 took the for

resolutions which had profound implications for the management o

tional security issues. The first—Resolution 1368, passed the day after the 

by recognizing “the inherent right of individual or collective self-defenc

dance with the Charter” implicitly accepted the proposition that it could 

for a State to take action against another State if the latter failed to sto

attacks being launched from its territory. The same resolution called on 

to bring the perpetrators to justice, and to cooperate to prevent and 

terrorist acts.29

In this Resolution the Council accepted that a right of self-defense co

to a State when it was attacked by a non-State entity. To those who believe 

against terrorists should be confined to police methods, this was con

However, the Resolution was passed in the specific and hopefully uniqu

stances of 9/11, when the Taliban regime was refusing to take any action a

terrorists in their midst. The Resolution does not mean that there is or 

general Council approval of responding to terrorist attacks by cross-bord

actions, or that such action should generally be viewed as lawful. The 

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such responses is dismal, as evidenced for example by the Hapsburg a

wipe out the terrorist “hornets’ nest” in Serbia in 1914, and the vari

counterterrorist operations in Lebanon in the past thirty years. T

effectiveness of the military campaign in Afghanistan in late 2001 app

an exception to the proposition that it is unwise to attack States from wh

originates, but in the aftermath the proposition has recovered some cred

the resulting caution about military intervention is bound to face severe 

if State-sponsored or State-tolerated terrorism continues to be a major 

international politics.

The second key resolution passed by the Council in September 2001, R

1373, recognized “the need for States to complement international coop

taking additional measures to prevent and suppress, in their territories t

lawful means, the financing and preparation of any acts of terrorism.” It 

cated the remarkable extent of such measures, and the key role of the C

overseeing them. It used strong language—the Council “decides tha

shall” take action, rather than merely calling on them to do so.30 The G

sembly—often wary of any increase in the Security Council’s powers—

nervous but did not go against the Council’s approach.31 It remains poss

the long run the greatest effect of Afghanistan on international security w

it compelled the Council to take on a more intrusive role in relation to S

had ever previously been contemplated.

Yet the actual role of the Council in the events following the 9/11 

limited. True, its resolutions and other actions were important for th

tional legitimacy of the US-led military action in Afghanistan and for th

to build up a post-Taliban system of government there.32 However, the

way in which the Council could have been centrally involved in mus

commanding the military coalition that resulted in the closing of the 

bases in Afghanistan and the removal of the Taliban from power in Kabul

striking feature of the Council’s role in the hostilities of late 2001 is 

character.

Following the installation of the Karzai government in Kabul on Dec

2001, the two main tasks facing the new government and its outside ba

perceived to be reconstruction and the provision of security. The Unite

was widely seen—even by the US administration—as being pivotal i

these tasks. The key statement of this period, which did much to define th

just of the United Nations but of the international community generally, 

by Lakhdar Brahimi, Special Representative of the Secretary-General fo

stan. In discussing the planned UN Assistance Mission in Afghanistan (U

he famously said: “It will be an integrated mission that will operate w

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footprint,

keeping the international United Nations presence to the min

quired, while our Afghan colleagues are given as much of a role as poss

This immediately raises the question of whether a light footprint is in

sible in a country with such a limited—and distrusted—State structure 

Afghanistan. The concept was inevitably buffeted by events and modi

point where some did not recognize it. Within a year or two a reviving in

and major military operations on Afghan territory by the United States a

created the dual risks that the footprint would be perceived as heavy 

UNAMA would be seen as powerless to implement important parts of its 

It was not the only part of the UN system that faced the problem of appe

partial, or powerless, or both. As Gilles Dorronsoro has pointed out in 

survey of the Security Council’s roles in Afghanistan up to the end of 200

rect involvement by Permanent Members of the Security Council in a c

surgency war has resulted in the Council being silent on specific vio

international humanitarian law.”34

In the years since 2002 in which it has operated in Afghanistan, UN

sought to assist political and economic transition and the rule of law. Th

its activities up to March 2008 presented a sobering picture:

[T]he political transition continues to face serious challenges. The Taliban an

armed groups and the drug economy represent fundamental threats to sti

political, economic and social institutions. Despite tactical successes by natio

international military forces, the anti-Government elements are far from d

Thirty-six out of 376 districts, including most districts in the east, south-

south, remain largely inaccessible to Afghan officials and aid workers. . . . Me

poor governance and limited development efforts, particularly at the provin

district levels, continue to result in political alienation that both directly and in

sustains anti-Government elements.35

IV. Fitting Military Doctrine and Practice to Afghan Realitie

The limitations of military doctrines and practice are often expose

arguments, but by events. Thus it was mainly events in Iraq and Af

that exposed the inadequacies of the so-called “revolution in military a

idea that was popular in the United States from the mid-1990s un

2003.36 Afghanistan was always likely to be a difficult theater of oper

outside military forces. Seeing this (and perhaps also because he did no

ongoing distraction from the future invasion of Iraq, for which he w

lobbying) Paul Wolfowitz said in November 2001, “In fact, one of the 

Afghanistan’s history, which we’ve tried to apply in this campaign, is 

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foreigner, try not to go in. If you go in, don

t stay too long, because 

tend to like any foreigners who stay too long.”37

Many problems have been encountered in implementing and adaptin

doctrine and practice in face of Afghan realities. Three issues considere

the role of airpower, the complexities of operating in an alliance frame

the appropriateness or otherwise of COIN doctrine. The first two are to

here briefly: more attention is paid to the third. Many key developments, 

erable relevance to containing the insurgency, cannot be covered: they in

ticularly the key role of the Afghan National Police.

Airpower in Afghanistan

Ever since October 2001 airpower (which mainly means US airpower) 

an important part in military operations in Afghanistan. The apparent 

the use of airpower in October–December 2001 was deceptive: a majo

the Taliban’s defeat was the advance of ground forces—those of the No

liance. Since then, the role of airpower in the Afghan conflict has been a 

contestation, principally between the Army and Marines on the one 

the US Air Force on the other. A key issue has been whether airpower 

instrument in its own right, or is mainly useful in supporting ground fo

evidently, the US and NATO ground forces in Afghanistan, widely disp

few in number, frequently need airpower in support of their ground o

Indeed, tactical air support has been vital to any success they have ha

often saved the small numbers of ISAF forces from being overwhelme

tary terms, a “light footprint” on the ground inevitably means a 

presence.

Those planning coalition military operations in Afghanistan have sho

ness of the dangers of reliance on airpower, especially of the adverse con

of killing civilians. On occasion they have even claimed to have set an aim 

vilian casualties.38 While this aim actually goes further than the strict req

of existing law applicable in an international armed conflict, in practice 

been achieved. Part of the difficulty is that the very definition of civilia

lematic in a war such as that in Afghanistan. In addition, many other fa

prevented realization of the aim of no civilian casualties: shortage of grou

different approaches of individual commanders, poor intelligence, the h

tle, weapons malfunction, the co-location of military targets and civilian

frayed relationship between ground and air forces operating in Afghan

Human Rights Watch report in September 2008 summarized the situat

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py, g, 

fighting between the Taliban and other anti-government insurgents against 

government forces and its international military supporters. The US, which op

Afghanistan through its counter-insurgency forces in Operation Enduring F

(OEF) and as part of the NATO-led International Security Assistance Force (IS

increasingly relied on airpower in counter-insurgency and counter-t

operations. The combination of light ground forces and overwhelming airpo

become the dominant doctrine of war for the US in Afghanistan. The result h

large numbers of civilian casualties, controversy over the continued use of airp

Afghanistan, and intense criticism of US and NATO forces by Afghan politica

and the general public.

As a result of OEF and ISAF airstrikes in 2006, 116 Afghan civilians were kill

bombings. In 2007, Afghan civilian deaths were nearly three times higher: 321 

civilians were killed in 22 bombings, while hundreds more were injured. In 200

Afghan civilians were killed by airstrikes than by US and NATO ground fire. In 

seven months of 2008, the latest period for which data is available, at least 119 

civilians were killed in 12 airstrikes.40

That last figure needed to be increased when it was revealed in Oct

that thirty-three civilians had been killed in a single US airstrike on A

Such incidents do serious damage to the coalition cause. Largely as a re

long history of such incidents, there has been a strong anti-coalition 

Already in 2006 the Afghan parliament had demonstrated its concern ab

tion military actions, and such expressions of concern have subsequent

more frequent. Meanwhile, President Hamid Karzai, whose authority 

diminishing, has made a number of criticisms of the coalition forces, cal

end to civilian casualties, and even stating that he wanted US forces to s

ing suspected Taliban members and their supporters.41

The NATO Framework

From 2001 onward the United States has operated in Afghanistan with 

partners and, especially since August 2003, with the formal involvement 

Indeed, in Afghanistan NATO is involved in ground combat operations f

time in its history—far from its normal area of responsibility and again

very different from the one it had been created to face. The NATO invol

Afghanistan is widely, but perhaps not wisely, viewed as “a test of the 

political will and military capabilities.”42 It is an exceptionally hard test. I

implication that the future of the alliance hangs on this test is reminiscen

views that US credibility was on the line in Vietnam.

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NATO

s involvement in Afghanistan is in sharp contrast to its cond

the Cold War. In that period it repeatedly and studiously avoided invol

colonial conflicts—the French wars in Indochina and Algeria, the Portu

in Africa, the British in Malaya, the Dutch in Indonesia and so on. Its 

members were involved in these, but the alliance was not. NATO also a

volvement in postcolonial conflicts or, as in Cyprus, limited itself to an 

diplomatic role. Now in Afghanistan, which has all the hallmark featur

colonial States undergoing conflict—especially the lack of legitimacy of t

tutional system, government and frontiers—NATO became engaged, all 

public debate.

The NATO role in Afghanistan began in a problematic way, and so it h

ued. On September 12, 2001, the day after the 9/11 attacks, the NATO 

stated:

If it is determined that this attack was directed from abroad against the United 

shall be regarded as an action covered by Article 5 of the Washington Treat

states that an armed attack against one or more of the Allies in Europe o

America shall be considered an attack against them all.43

When the United States gave this offer the brush-off, preferring to have a 

à la carte” in which there would be no institutional challenge to its leader

was disappointment and irritation in Europe. The war in Afghanistan in 

December 2001, while it was effectively conducted under US leadership

one chapter in the story of the declining size of US-led wartime coalitio

However, NATO rapidly came back into the picture, not least be

United States came to recognize the need for long-term assistance in ma

cieties that had been freed from oppressive regimes by US uses of force. N

been directly involved in Afghanistan at least since August 9, 2003, wh

formal control of the International Security Assistance Force, which had 

been established under UK leadership in January 2002. It was in the a

2003 that an upsurge of violence began as part of a deterioratin

situation.44 Since 2006 ISAF has undertaken an expanded range of respo

in Afghanistan, involving combat as well as peacekeeping, in an expande

includes provinces in which conflict is ongoing.

ISAF’s notably broad UN Security Council mandate involves it in a w

of activities, including military and police training. Many of its activiti

ried out through Provincial Reconstruction Teams (PRTs)—civilia

units of varying sizes designed to extend the authority of the central go

provide security and undertake infrastructure projects. There are twenty

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in twenty

six of the countrys thirtyfour provinces. Operating unde

lead States, with twelve of the twenty-six led by the United States, the 

sources and tasks have varied greatly.

Not surprisingly, there have been controversies about numerous asp

overall ISAF mission. Four key problems concern the coherence or other

policies of the different members of ISAF, the problematic command a

arrangements, differences over detainee treatment, and the difficulty 

forces.

The lack of coherence of the approaches taken by different foreign 

ISAF and their governments at home is evident. Different contributing S

different visions of ISAF’s role. The most obvious difference is that t

States, United Kingdom and Canada tend to see it, albeit with some 

within each of these countries, as a stability operation, encompassing c

surgency actions, while Germany and some others see it more through th

peacekeeping or peacebuilding mission. These positions are not polar 

and each may have validity in different provinces of Afghanistan, but th

perspective on this issue does not assist cooperation of forces in diffic

tions. Daniel Marston has gone so far as to conclude: “As of 2007, the m

lem impeding coalition forces’ successful application of counterinsur

decentralization of responsibility.”45

The complexity of the command and control arrangements in Afgh

greater than that in past counterinsurgency campaigns. Debates about th

evitably reflected the US desire that more contingents in ISAF should b

rectly involved in combat operations, and the concern of some contrib

this should not happen. Although ISAF is now under a US commande

continuous rotation of senior posts is ceasing, the arrangements for coo

the work of these distinct forces continue to pose problems.46

The important, and scandal-ridden, matter of treatment of detainees 

issue on which there are differences of approach. Anxious not to be assoc

shocking US statements and practices in this matter, and insufficiently s

equipped to hold on to the prisoners they capture, other NATO mem

drawn up separate agreements with the Afghan authorities embodying a 

different approaches to how they should be treated once in Afghan han

are serious concerns that some detainees handed over to the Afghan auth

this basis have been maltreated.47

The provision of forces in the numbers required for ISAF has bee

contentious matter within NATO States. The coalition of forces acting 

of the Afghan government consists of three basic elements. The first is t

National Army which has been largely re-created in this decade with t

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the United States and other NATO countries. With a manpower level o

enty thousand, its relatively modest size has led to US accusations that t

government has been slow in building up its army. The second is ISAF, w

comprises some 51,350 troops from forty NATO and non-NATO 

Much the largest contingents are those of the United States, with 19,9

and the United Kingdom, with 8,745. The third basic element is the fo

over ten thousand troops (almost all of them American) who are part 

Operation Enduring Freedom, which focuses particularly on the count

mission in Afghanistan.48 Granted the scale of the problems in Afgha

these numbers are widely seen as low, yet in many NATO member State

reluctance to increase the commitment. Opinion polls in five NATO 

States with a high level of involvement in Afghanistan show the public to 

skeptical about it.49 An increase in such numbers risks running into opp

many NATO States, and also further antagonizing Afghan opinion. If c

surgency theory is a guide, and the whole country was seen as a theate

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 effec

trines and practices of counterinsurgency—the best of which draw on a 

varied range of practice—have a long history.50 The revival of COIN doct

past few years has been driven primarily by events in Iraq, but also, if to a 

gree, by the development of the insurgency in Afghanistan. This reviva

doctrine is hardly surprising. The response of adversaries to the extraord

tern of US dominance on the battlefield was always going to be one of u

tional warfare, including the methods of the guerrilla and the terrori

turn, the natural US counter-response was to revive the most obviously 

ate available body of military doctrine.

The key document of the US revival of COIN doctrine is the US A

Manual 3-24 (FM 3-24).51 It is very much an Army and Marine Corps m

Air Force refused to collaborate in the exercise. Improbably for a military

document, it has been in demand in the United States. It has been heavil

and downloaded on the web, is also available as a published book from a m

versity press52 and was the first army publication to receive a review i

York Times.

53 Although it has some flaws, explored further below, it is a 

contribution to COIN literature.

By contrast, the United Kingdom has not yet produced a major new 

This is partly because, much more than their US counterparts, the B

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extant doctrine.

It is also because there was some opposition to COIN 

on the grounds that it would result in the same hammer being used on e

lem. As a result there has not yet been a UK equivalent of FM 3-24. The M

Defence’s short (23 pages) Joint Discussion Note of January 2006, The C

sive Approach, is a more general survey intended to be relevant to a wid

operations: the word “counterinsurgency” does not appear in it.55 It wa

in 2007 by a paper entitled Countering Irregular Activity.

56 This docum

has not gone into general public circulation and has not been greeted wit

asm in the army, “seeks to instruct military personnel about counterins

a whole and about associated threats, and emphasizes the need for milita

to be part of a comprehensive approach involving all instruments of pow

summary, by Sir John Kiszely, until 2008 Director of the Defence Acad

United Kingdom, is immediately followed by a down-to-earth reminde

ery insurgency is sui generis, making generalizations problematic.”58 Th

tant point has been emphasized by military professionals on both si

Atlantic.

The “comprehensive approach,” which is central to both the US and 

trines, essentially means the application of all aspects of the power o

within the territory where the insurgency is being fought. The apparen

tion that there is a State with real power is the key weakness of the appro

cially as it applies to Afghanistan. Before exploring this in more detail, 

useful to glance at the problematic nature of assumptions about the poli

in the counterinsurgency doctrines inherited from past eras.

The US manual revives and updates doctrines that were developed in 

War years in response to anti-colonial insurrections (some of them invo

ership by local communist parties). It relies especially heavily on two sou

that era.59 The first is David Galula’s Counterinsurgency Warfare, one of 

writings of the French thinkers on guerre révolutionnaire.

60 The second is 

Thompson’s Defeating Communist Insurgency.

61 Both works had placed 

on protecting populations as distinct from killing adversaries—a cruci

tion which implies a need for high force levels.

According to the introduction, FM 3-24 aspires to “help prepare Arm

rine Corps leaders to conduct COIN operations anywhere in the wor

might seem to imply a universalist approach, but the authors emphasize 

insurgency is different. The foreword by Generals Petraeus and Amos is 

on this point: “You cannot fight former Saddamists and Islamic extr

same way you would have fought the Viet Cong, Moros or Tupamaros; 

cation of principles and fundamentals to deal with each varies considera

3-24 is also emphatic on the importance of constantly learning and a

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response to the intricate environment of COIN operations, a point whic

reflects British experience.64

Past exponents of COIN doctrine have generally placed heavy em

achieving force ratios of about twenty to twenty-five counterinsurgent

one thousand residents in an area of operations. Noting this, the man

“Twenty counterinsurgents per 1000 residents is often considered the 

troop density required for effective COIN operations; however as with 

ratio, such calculations remain very dependent upon the situation.”65 Th

sis on force ratios is controversial. In any case, in Afghanistan there ap

chance of achieving such numbers. If the entire country with its thirty-tw

inhabitants were to be viewed as the area of operations, a staggering eigh

thousand counterinsurgents could be needed.66 Even if the area of operat

fined narrowly, and even allowing for the fact that not all have to be NAT

the prospects of getting close to the force ratio indicated must be low.

A flaw in some, but not all, past counterinsurgency doctrine has bee

sensitivity to context and, in some cases, an ahistorical character. Some 

in counterinsurgency have seen their subject more as a struggle of li

darkness than as a recurrent theme of history or an outgrowth of the pro

society. Examples of such an ahistorical approach to the subject can be fo

French group of theorists writing in the 1950s and early 1960s ab

révolutionnaire. Some of these theorists denied the complexities—esp

mixture of material, moral and ideological factors—that are keys to und

why and how guerrilla and terrorist movements come into existenc

Lacheroy, a leading figure in this group and head of the French Arm

d’Action Psychologique, famously stated: “In the beginning there is nothin

rorism was seen as having been introduced deliberately into a peaceful 

an omnipresent outside force—namely international communism. It is 

ological vision of a cosmic struggle in which the actual history of partic

tries and ways of thinking has little or no place.

A related fault in some counterinsurgency writing was the tendenc

general rules of counterinsurgency from particular struggles and then see

them in radically different circumstances. The campaign in Malaya in 

because it was successful in ending a communist-led insurgency, was oft

as a model, and is described favorably in the US Field Manual.68 Certa

drawn partly from Malaya were subsequently applied by the British in B

Oman with some effect. However, successes such as that in Malaya can b

ceivers. Attempts were made to apply the lessons of Malaya in South V

the 1960s.69 These largely failed. The main reason for failure in South Vi

that conditions in Vietnam were utterly different from those in Malaya. 

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the insurgency had mainly involved the ethnic Chinese minority and 

managed to present itself convincingly as representing the totality of th

ants of Malaya. The insurgency was weakened by the facts that the Chine

ity was distinguishable from other segments of society; Malaya had no 

frontier with a communist State, so infiltration was difficult; and the Bri

ing of independence to Malaya undermined the anti-colonial credential

surgents. In South Vietnam, by contrast, the communist insurgents h

nationalist credentials, having fought for independence rather than mer

power handed to them by a departing colonial power.70 At the heart of th

edy in Vietnam was a failure to recognize the unique circumstance of the 

in Vietnam, more than any other country in Southeast Asia, communis

tionalism were inextricably intertwined.

One lesson that could have been drawn from the Malayan case is that 

times necessary to withdraw to win. FM 3-24 places much emphasis on th

the United States withdrew from Vietnam in 1973 only to see Saigon fal

Vietnamese forces in 1975.71 It does not note a contrary case: it was the U

to withdraw completely—a promise that was followed by the Federati

laya’s independence in 1957—that contributed to the defeat of the insu

Malaya.72 The value of such promises needs to be taken into account in c

rary COIN efforts and indeed COIN theory. This is especially so, as the id

United States intended to stay indefinitely in Iraq and Afghanistan, as evi

the networks of bases built there, had a corrosive effect in both countries 

generally. The decision of the Iraqi cabinet on November 16, 2008 that al

will withdraw from Iraq by 2011 is evidence that a guarantee of withdra

as a necessary condition (and not simply a natural consequence) of endin

phase of insurgency.

One weakness in the US manual, likely to be remedied in any future r

the lack of serious coverage of systems of justice, especially those emplo

insurgents themselves. The references to judicial systems in FM 3-24 ar

anodyne, almost entirely ignoring the challenge posed by insurgents in 

Insurgencies commonly use their own judicial procedures to reinforce th

to be able to preserve an existing social order or create a better one. Th

have always placed emphasis on provision of a system of Islamic justic

current conflict, taking advantage of the fact that the governmental lega

weak and corrupt, they have done this effectively in parts of Afghanista

This leads to a more general criticism. In addressing the problem of u

ing and weakening insurgencies, both traditional COIN theory and its re

sions in the twenty-first century place emphasis on, but do not discuss in 

role of State institutions: political structures, the administrative bureau

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police, the courts and the armed forces. The institutions are often 

granted, and assumed to be strong. Indeed, the current British COIN 

stemmed from a project started in 1995 to capture the lessons and doc

Northern Ireland. A common criticism of much COIN practice is that 

thusiastically pursued by over-powerful and thuggish States, especiall

America.75

Today, COIN theories risk being out of touch with the realities of as

so-called “failed States” and “transitional administrations” of the tw

century. These problems are not new; one of the problems that under

COIN efforts in Vietnam was the artificiality and weakness of the coup-p

of South Vietnam. Yet the central fact must be faced that in the two test-b

new COIN doctrines of recent years, Iraq and Afghanistan, State institu

been notoriously weak—in Iraq temporarily, and in Afghanistan chronical

in postcolonial States generally, where insurgencies are by no means un

indigenous State systems tend to be fragile and/or contested. The role o

in people’s lives, and in their consciousness, may be thoroughly periphe

negative.76 So when the US manual speaks of “a comprehensive strategy e

all instruments of national power” and stresses that all efforts focus on “s

the local populace and HN [host nation] government,”77 it is necessary 

ourselves that support for government is not exactly a natural default p

inhabitants of countries with such tragic histories as Iraq and Afghanist

other hand, General Petraeus worked on the manual after completing tw

duty in Iraq, with an eye to applying it there, and then did so to some effe

was commander of Multinational Force–Iraq. In 2008 the Iraqi gove

looking stronger than in the first years after the invasion. The fact that 

ment is weak in the face of an insurgency does not mean that it is necess

to remain so.

Of the many critiques of the US revival of COIN doctrine, one of 

searching is an American Political Science Association review symposium 

in June 2008.78 Stephen Biddle of the US Council on Foreign Relations q

manual’s fundamental assumption when he stated that

it is far from clear that the manual’s central prescription of drying up an ins

support base by persuading an uncommitted population to side with the gov

makes much sense in an identity war where the government’s ethnic or s

identification means that it will be seen as an existential threat to the security 

internal groups, and where there may be little or no supracommunal, national 

to counterpose to the subnational identities over which the war is waged by the 

United States becomes involved.79

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Biddle also pointed out that the US manual has little to say about the co

merits of waging COIN with large conventional forces as against small c

detachments, on the relative utility of airpower in COIN, and on the w

of democracies to support COIN over a long period. Further, the ma

not fit particularly well the realities of Iraq, where the insurgencies ar

regional and localized in character, and more fickle in their loyalties, 

many of the communist and anti-colonial insurgencies of earlier eras. 

points out, the negotiation of local ceasefires between insurgents and 

manders has been of key importance in Iraq.80 Such webs of local 

valuable despite their fragility, do not come from counterinsurgency 

These criticisms are another way of saying what General Petraeus know

doctrine is interim, and some parts are more interim than others.

The need to adapt doctrine, so evident in Iraq, applies even more s

Afghanistan, a subject about which the US manual says remarkably little

issue is whether the revival of counterinsurgency doctrine really offers a u

in a situation where there are some distinct elements in the insurgenc

negotiation with some of the insurgents may have a role and where the 

not command the same loyalty or obedience that more local forces may 

After a difficult year in 2008, the US and Afghan governments began t

creased emphasis on local social structures. The US ambassador to A

said at the end of the year that there was agreement to move forward wit

grams: first, the community outreach program, “designed to create co

shuras” (local councils); and second, the community guard program

“meant to strengthen local communities and local tribes in their ability 

what they consider to be their traditional homes.”82 While neither pro

well defined, the move in this direction was evidence of willingness to re

State-based approach than hitherto.

Judging Progress in the War in Afghanistan

Judging progress in counterinsurgency wars is by nature a contentious 

involves difficult questions about the appropriate methodologies. Some

orthodox methods of analysis yield the most valuable answers. The war 

Indochina from 1946 to 1954 provided a classic case. When a French doctor

Bernard Fall (1926–67), went to Vietnam in 1953, the French authoriti

that the war was going well, and showed maps and statistics indicating 

controlled a large proportion of the territory. But he soon realized th

claims about the amount of territory they controlled were exaggerated, 

lacked real meaning as far as the conduct of government was concerned. H

this conclusion both by visiting Vietminh-held areas, and by inspecting t

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in supposedly government

held areas: these latter showed a dramatic c

the payment of taxes, and thus indicated a lack of actual government co

Afghanistan, the long-standing lack of a tax collection system continues 

Astri Suhrke has shown, taxation constitutes a uniquely small propo

2005 it was only 8 percent—of all estimated income in the national bud

By one key measure serious progress may appear to be being made in t

war. The numbers of refugee returns to Afghanistan since the fall of the T

gime at the end of 2001 are one possible indicator of a degree of progres

ing to the Office of the UN High Commissioner for Refugees (UNHC

played a key part in the process, between January 1, 2002 and December 

total of 4,997,455 refugees returned to Afghanistan, as follows:

2002 2003 2004 2005 2006 

1,957,958 645,864 879,780 752,084 387,917 

This is the largest refugee return in the world in a generation. It is st

even in 2006, 2007 and 2008, years of considerable conflict in parts of Af

the returns continued, if at a reduced rate. In the whole period 2002–07

whelming majority of refugees have been in two countries: Iran, from 

million returned, and Pakistan, from which 3.3 million returned.85 Im

the figures of this return are, four major qualifications have to be made

• First, they have to be understood against the backdrop of the shee

of Afghan refugees: at the end of 2007 Afghanistan was still the leading 

origin of refugees worldwide, with 3.1 million remaining outside th

Thus in 2008, even after these returns, Afghan refugees constitute 27 

the entire global refugee population.

• Second, not all returns were fully voluntary. Within the countries 

there have been heavy pressures on these refugees to return, including t

of some camps.

• Third, the experience of many returning refugees has include

employment opportunities in Afghanistan, and in some cases involv

property disputes. There has been mismanagement and corruption in t

Ministry of Refugees and Returnees. Some returnees live in dire con

makeshift settlements. All this has created much disappointment, bitte

anti-government feeling.

• Fourth, displacement continues. In the past two years unknown n

returnees have left the country again. Also the number of internally 

persons (IDPs) within Afghanistan has increased, especially due to the 

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the south of the country, and now stands at about 235,000. Some retur

seamlessly become IDPs.86

Other developments confirm this sobering picture. The Afghan arm

relatively small, and highly dependent on outside support. As for the 

forces, they appear to have no shortage of recruits. Large numbers of f

able to cross into Afghanistan, mainly from Pakistan; and the Taliba

employ many locals, especially in seasons when other work is in short su

fact that the estimated unemployment rate is 40 percent means that 

continue to have opportunities for recruitment. In Kabul and other citie

attacks, once rare, have become common. Serious observers reported 

sphere of disappointment and bitterness in Afghanistan in 2008.87

The UN Secretary-General’s report of September 2008 summarizes 

tion thus:

The overall situation in Afghanistan has become more challenging since my 

report. Despite the enhanced capabilities of both the Afghan National Army 

international forces, the security situation has deteriorated markedly. The infl

the insurgency has expanded beyond traditionally volatile areas and has incr

provinces neighboring Kabul. Incidents stemming from cross-border activit

Pakistan have increased significantly in terms of numbers and sophisticati

insurgency’s dependence on asymmetric tactics has also led to a sharp ris

number of civilian casualties. Civilians are also being killed as a result of 

operations carried out by Afghan and international security forces, in part

situations in which insurgents conceal themselves in populated areas. 

worrying development is the fact that attacks on aid-related targets an

governmental organizations have become more frequent and more deadly.88

The Secretary-General’s report states bluntly that the number of sec

dents rose to 983 in August 2008, the highest since the fall of the Taliba

and “represents a 44 percent increase compared with the same month in 

also states: “While the main focus of the insurgency remains the sou

eastern parts of the country, where it has historically been strong, insurg

ence has intensified in areas that were previously relatively calm, includ

provinces closest to Kabul.”89 Overall the report is far from negative. 

some successes in the campaign against poppy cultivation, and it str

dorses the Afghanistan National Development Strategy, adopted at the P

ference in Support of Afghanistan, held on June 12, 2008. However, as a

of the state of progress in the war against the Taliban, it confirms t

which has also been depicted by other sources. The latter include the so

of General David McKiernan, the top US commander in Afghanistan, w

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same time as he was seeking specific troop increases, rejected simple n

deed the terminology, of a military “surge”;90 and the US National In

Estimate on Afghanistan, a draft version of which was leaked in Octo

which stated that the situation there was in a “downward spiral.”91 One 

tistic of the downward spiral is the casualty rate of ISAF and Operation 

Freedom forces in Afghanistan. Fatalities have increased each year fr

2003 to 296 in 2008.92

As so often in counterinsurgency wars, the most useful assessmen

those of independent witnesses who, just as Bernard Fall did in French I

have deep knowledge of a society and a healthy open-mindedness about t

bution that outside forces can make to security. Rory Stewart, who wal

Afghanistan in 2002, and later retired from the UK diplomatic servic

charitable foundation in Kabul, has argued that “we need less investme

greater focus on what we know how to do.” He is specifically critical of in

forces:

A troop increase is likely to inflame Afghan nationalism because Afghans a

anti-foreign than we acknowledge and the support for our presence in the ins

areas is declining. The Taliban, which was a largely discredited and b

movement, gains support by portraying itself as fighting for Islam and Afg

against a foreign military occupation.”93

V. Conclusions

Four kinds of conclusions follow. First, about the implications of Afgha

the UN; second, on the role of NATO; third, on international security 

and finally, on the debate about policy choices that is emerging from th

experience of attempting to transform Afghanistan. These conclusions 

on the presumption that the present campaign in Afghanistan is unlike

in a clear victory for the Kabul government and its outside partners, b

sources of division within and around Afghanistan are just too deep, an

dency to react against the presence of foreign forces too ingrained. The 

yet be lost, or, perhaps more likely, it could produce a stalemate or a long 

trition with no clear outcome. The dissolution of Afghanistan into 

fiefdoms—already an accustomed part of life—could continue 

accelerate.

To some it may appear remarkable that Afghanistan has not reve

completely to type as a society that rejects outside intrusion. Part of the ex

may be that this is not the only natural “default position” for Afghans: 

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also been countless episodes in which Afghan leaders have sought, an

from, alliances with outsiders. A second factor is the “light footprint” adv

Brahimi: for all the limitations of this approach, and the many departu

since it was enunciated in 2002 with specific reference to UNAMA, no on

vincingly suggested a better one. A third factor is that—notwithstanding 

trous killings of civilians as a result of using airpower—there has been a 

restraint in the use of armed force: this has been important in at least sl

pace of the process whereby the US and other outside forces come to be 

as alien bodies in Afghanistan. The interesting phenomenon of applicat

tain parts of the law of armed conflict—namely the rules of targeting—as 

an international war is part of this process.

The United Nations

A few conclusions on the UN’s various roles in Afghanistan flow from 

survey. First, the United Nations has some remarkable achievements to i

Afghanistan. It helped to negotiate the Soviet withdrawal from Afghan

was completed in 1989; ever since then it has remained engaged on the 

Afghanistan; it gave a degree of authorization to the US-led effort to r

Taliban regime in 2001; it has authorized ISAF and has provided a legiti

for its expanded roles throughout the country; it has been involved in 

subsequent efforts to help develop Afghanistan, not least by assisting in t

elections held there since 2001; and it has assisted the largest refugee ret

country since the 1970s.

Second, despite these achievements, the UN’s roles have been more lim

those of the United States and its various partners, especially in matters 

security. The fact that the UN’s role in this crisis has been modest is not 

shocking. Neither the terms of the UN Charter nor the record of th

Council justifies the excessively high expectations that many have had in 

the Council’s roles. It was always a mistake to view the United Nations as 

provide a complete system of collective security even in the best of circu

and circumstances in and around Afghanistan are far from being favora

ternational involvement.

Third, international legitimacy is never a substitute for local legitim

Council’s acceptance of regime change in Afghanistan was justified 

Taliban had refused to remove al-Qaeda, and did much to legitimize the 

gime replacement, which could otherwise have seemed a narrowly neo-c

action. Yet there is a danger that such international conferrals of legit

contribute to a failure to address the no-less-important question o

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legitimacy in the eyes of the audience that matters most: in this case, the 

Afghanistan and neighboring countries.

NATO

The involvement of the NATO alliance in this distant, difficult and divisi

could have fateful consequences for the alliance. It is truly remarkable th

utation of the longest-lived military alliance in the world, comprised of S

fundamentally stable political systems, should have made itself vulnera

outcome of a war in the unpromising surroundings of Afghanistan. The

nervousness about this among NATO’s European members, and this m

the reluctance of European leaders to make the kind of ringing statemen

ten accompany war. Knowing that the outcome of any adventure in Afgh

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 

member States to make strong endorsements of their participation in 

Afghanistan. Many of the claims that can be made in favor of the Afghan 

also implicitly criticisms of the involvement in Iraq. From the start in 200

led involvement in Afghanistan and the subsequent involvement of ISAF 

had a strong basis of international legitimacy that was reflected in Securi

resolutions. In Afghanistan there was a real political and military force t

in the shape of the Northern Alliance. In Afghanistan and Pakistan ther

havens for terrorists. In Afghanistan, up to five million refugees have 

since 2001. To speak about these matters too loudly might be to underm

position in Iraq, where the origins and course of the outside involvem

been different, and where the flow of refugees has been outward. NAT

anxious to put the recriminations of 2003 over Iraq behind them, may b

about highlighting the differences between Afghanistan and Iraq.

A major question, heavy with implications for international security, 

the setbacks experienced in Afghanistan to be explained, especially with

member States? The United Nations may be accustomed to failure, bu

not. So far, the tendency has been to blame Pakistan, the messy NATO c

the poor attention span of consecutive US governments, the unwill

NATO allies to contribute, the weakness of Karzai, the corruption of h

ment, the shortage of foreign money and troops; in other words, to bla

everything except the nature of the project.

The various reasons that have been given cannot be lightly dismissed. 

ple, the lack of NATO unity in certain operational matters has been striki

ability of member States to agree on a straightforward and defensible co

of standards for treating prisoners in the Afghan operations is symptoma

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divisions within the alliance. Political divisions have never been far fro

face and will no doubt be projected into future explanations of what we

Continental Europeans can convincingly blame the Americans and the 

having taken their eye off the ball in Afghanistan in 2002–03, foolishl

that the war there was virtually won and that they could afford to rush int

adventure in Iraq. Americans can blame the Europeans for putting rela

troops into ISAF, and being slow to back them up when the going go

2006–08. A less blame-centered explanation might be that the reconst

Afghanistan, and the pursuit of counterinsurgency there, was always goin

extremely difficult task; that there are limits to what outsiders should 

achieve in the transformation of distant societies with cultures significan

ent from our own; and that it never made sense to invest such effort in c

surgency in Afghanistan without having even the beginnings of a strate

neighboring regions of Pakistan.

Impact on International Security

The problem of Afghanistan—including the complex interplay of intern

tors who have pursued their interests there—has had an impressive and 

eted impact on international security issues in the past generation. It co

to the end of the Cold War and indeed of the Soviet Union itself. It ass

continues to assist, the rise and proliferation of Islamic militants around 

The Taliban regime’s failure to control al-Qaeda activities launched t

States into the huge and seemingly endless “War on Terror,” led to t

States acquiring unprecedented access to Central Asia, and also resulted 

curity Council claiming unprecedented powers to affect activities with

The Afghan war has embroiled NATO in a largely civil war thousands of m

its North Atlantic heartlands. It also threatens to destabilize Pakistan. Ev

by feeding the mutual suspicion between India and Pakistan, and open

other front in their long-standing rivalry, it makes war between these tw

powers a distinct possibility.

One impact of Afghanistan on international security may turn out to 

paradoxical. It is obvious that Afghanistan, along with Iraq, has called 

tion the idea that the United States, in its supposed “unipolar mome

change even the most difficult and divided societies by its confident use 

force. But it is not only the ideas of the neo-conservatives and their camp

that are in trouble. In many ways the involvement of NATO in Afgha

textbook liberal multilateralism: implicitly approved by the UN Securit

involving troops from forty democracies, cooperating with the UN assis

sion, and pursuing admirable aims to assist the development and modern

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Afghanistan. The very ideas of rebuilding the world in our image, and 

Western States having an obligation to achieve these tasks in distan

whether by unilateral or multilateral approaches—may come to be view

mistic. Or, to put it differently, and somewhat cryptically, Afghanistan 

have quite such a drastic effect on the American imperium as it had on 

one in the years up to 1991; but it may nevertheless come to be seen as o

tant stage on the path in which international order became, certainly no

and perhaps not even multipolar, but based more on prudent interest th

sions that Western ideas control the world. Afghanistan, like Somalia, 

tribute to greater caution before engaging in interventionist projects 

reconstructing divided societies. Whether this is a cause for celebration 

may be debated: in 1994 Tutsis in Rwanda had good reason to rue the U

that resulted from the Somalia debacle.

Despite all the difficulties encountered in Afghanistan since the 

Taliban in 2001, in the US presidential election campaign in 2008 bo

Obama and John McCain promised to increase the US commitment to 

stan in 2009. There was little prospect either that the insurgency would 

that the United States would tiptoe out of the war. Furthermore, both 

advocated continuing and even extending the practice of using US for

Taliban and al-Qaeda targets in Pakistan. The war’s international dime

its significance for international security more generally, was set to con

The Debate on Policy Choices

The Obama administration’s policy planning for Afghanistan is bas

sound presumption that the Afghan problem cannot be addressed in iso

though many countries have a potentially important role in any settlem

ghanistan—especially Iran, with its large numbers of Afghan refugees an

drug problem—Pakistan is at the core of this approach. Granted the in

connection between Afghanistan and Pakistan, any policy in respect to t

to be framed in light of its effects on the other. At times it may even be ne

prioritize between these two countries. The simple truth is that Pakist

larger, more powerful and generally more important country than Afgh

the price of saving Afghanistan were to be the destabilization of Pakistan

not be worth paying. A principal aim of the United States in the region sh

been, and indeed may have been, to avoid creating a situation in which t

ular price has to be paid: yet at least once before, in the Soviet-Afghan 

1980s, something very like it happened.

The main conclusion of any consideration of the Pakistani factor in th

conflict in Afghanistan has to be that the policy of the United States and 

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strengthen central government in both countries

has been operat

tremely difficult circumstances, has been pursued erratically and has be

unsuccessful. While it is not obvious what the alternatives might be—op

tance of regional autonomy in both societies would have some merits—t

approach of backing non-Pashtuns in Pakistan and Afghanistan risks ex

the Pashtun problem in both countries. Three distinct causes—Pashtu

and al-Qaeda—have become dangerously conflated. It should be a fi

Western policy to reverse this dangerous trend.

Because of the grim prospects of a stalemate, a war of attrition or wo

ghanistan, and also because of the advent of new governments in Pakist

and the United States in 2009, there has been at least the beginning of 

ation of alternative policies. Two stand out: each in its way addresses d

growth of the insurgency and each is based on a recognition that the Pa

mension of the problem has to be considered alongside the Afghan one

tions take into account the central requirement of any approach—that it 

to ensuring that neither Afghanistan nor Pakistan offers the kind of have

nizing international terrorist actions that Afghanistan did under Taliba

The first option centers on negotiation with Taliban and other Pashtu

The first question to be faced is whether, on either side of the border, the

ficiently clear hierarchical organizational structures with which to nego

second question is whether Afghan Taliban/Pashtun goals are frame

terms of control of the Afghan State along the completely uncomprom

followed by the Taliban in the years up to 2001, or in more limited terms. 

the answers, negotiation in some form with some of the insurgent group

tions is inevitable. Indeed, in an informal manner some is already h

Combining fighting with talking is quite common in insurgencies, no

cause of their tendency to result in stalemate. Yet it is never easy, and is l

particularly difficult for those on both sides who have chosen to see the 

ghanistan as a war of good against evil. It is also likely to be difficult if, as 

the Taliban believe they are in a position of strength. A critical question 

plored in any talks is whether, as some evidence suggests, Taliban lea

learned enough from their disasters since seizing Kabul in 1996, and in 

from their near-death experience in 2001, to be willing to operate in 

manner in today’s Afghanistan.94 The continuing commitment of the 

Pakistan to destroying government schools, and its opposition to edu

girls, does not inspire confidence. The scope and content of any agre

matters of huge difficulty. Some agreements concluded by the Pakistan

ment in the past few years are widely seen as having given Taliban leader

to continue supporting the insurgency in Afghanistan. This serves as a w

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the hazards of partial negotiation. Yet the pressures for negotiation are v

and a refusal to consider this course could have adverse effects in both c

In October 2008, after a two-week debate that was not always well att

Pakistani Parliament passed unanimously a resolution widely interpreted 

ing above all a shift to negotiation. Actually it was a complex package, in 

Parliament united to condemn terrorism and at the same time was seen 

ownership” of policy to tackle it. The Resolution said that regions on t

border where militants flourish should be developed, and force used as a 

It opposed the cross-border strikes by US forces in Pakistan, but at the 

indicated a degree of support for US policy. It called for dialogue with 

groups operating in the country, and hinted at a fundamental change in 

approach to the problem: “We need an urgent review of our national sec

egy and revisiting the methodology of combating terrorism in order to res

and stability.”95 At the very least it provides one basis for the Obama adm

to recalibrate the United States’s largely burnt-out policies toward Pakist

The second option under discussion involves a fundamental rethinkin

rity strategy in both Afghanistan and Pakistan. On the Afghan side of th

would call for some increase in ISAF or other outside forces, especially t

the pace of expansion of the Afghan army, and thereby to provide back

certain areas from which the Taliban have been expelled can thereaft

tected. It would also call for cooperation in security matters with local 

councils, with all the hazards involved. One informed and persuasive 

the approach to counterinsurgency used in Afghanistan since 2003 sugge

emphasis on extending the reach of central government is precisely 

strategy: its authors, specialists in the region, argue instead for a rural sec

ence that has been largely lacking.96 A security strategy based on local 

councils would also call for expansion of aid and development programs

in urgent matters such as food aid in areas threatened by famine, and fo

effort to address the widespread corruption which makes a continuous m

Western attempts to bring reform and progress to Afghanistan. On the 

side it would involve a protracted effort to develop a long-term policy—

non-existent—for establishing some kind of government influence in 

and for a joined-up policy for addressing the Taliban and al-Qaeda pre

both sides of the border it would necessitate reining in the use of airpo

duce its inflammation of local opinion.

For reasons indicated in this article, it is highly improbable that eith

options on its own could provide a substantial amelioration of a tangled 

situation. However, a combination of the two policies—both negotiatin

thinking the security strategy—might just achieve some results. Su

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approach has been supported in 2009 by John Nagl, one of the architects 

US counterinsurgency doctrine. Advocating the adaptation of this doct

special circumstances of Afghanistan, he has stated: “At the time, the do

manual laid out was enormously controversial, both inside and outside 

gon. It remains so today. Its key tenets are simple, but radical: Focus on 

civilians over killing the enemy. Assume greater risk. Use minimum, 

mum force.” His advocacy of these principles is accompanied by emph

importance of dealing with local forces as well as national governments b

ghanistan and in Pakistan.97

An approach along such lines would need to include other elements a

cluding a strong and credible commitment to leave as soon as a modicum 

ity is achieved. Such a combination would need to be pursued in both A

and Pakistan. It could only work if a new US administration rejected th

pects of previous policies, and pursued the matter with more consisten

than in the past. It would be likely to result in some unsatisfactory com

and might build on, rather than fundamentally change, the pattern of lo

and regional warlordism that is so rooted in Afghanistan. Yet if the war in 

stan is not to have even more fateful consequences for international o

those seen in the past three decades, it may be the direction in which even

move.

Notes

1. T.R. Moreman, Callwell, Sir Charles Edward (1859–1928), in OXFORD DIC

NATIONAL BIOGRAPHY (H.C.G. Matthew & Brian Harrison eds., 2004).

2. C.E. CALLWELL, SMALL WARS: THEIR PRINCIPLES AND PRACTICE 5 (rev. ed

3. For an account of the retreat from Kabul in January 1842, see SAUL DAVID, 

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 ENGA

AFGHANISTAN (2008).

6. ROB JOHNSON,AREGION IN TURMOIL: SOUTH ASIAN CONFLICTS SINCE 

(2005).

7. The Northern Alliance, more correctly called the United Islamic Front for t

of Afghanistan, is a loose association of regional groups founded in 1996 to fight aga

control of Afghanistan.

8. On the Taliban’s history of supporting opium production, which became t

of their war economy in the late 1990S, see AHMED RASHID, TALIBAN: THE STO

AFGHAN WARLORDS 117–24 (2001).

9. AHMED RASHID, DESCENT INTO CHAOS: HOW THE WAR AGAINST ISLAMIC 

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, 

months later the Security Council addressed ISAF’s entitlement to use force mor

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take all necessary measures to fulfill the mandate of the International Security Assist

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 sphe

tions to other parts of Afghanistan. By the end of 2006, now operating under NAT

sponsibilities in virtually all of Afghanistan.

12. Al-Qaeda Not Weakening – BBC Poll, BBC NEWS, http://news.bbc.co.uk/2/h

7638566.stm (last visited Mar. 9, 2009) (survey conducted July 8–September 12, 20

13. Saeed Shah, Pakistanis Unite to Fight Extremism, GUARDIAN (London), Oct. 

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; S

COUNTERINSURGENCY IN AFGHANISTAN (2008), available at http://www.ran

monographs/2008/RAND_MG595.pdf.

16. For an indictment predicated on the assumption that a serious policy could 

see US GOVERNMENT ACCOUNTABILITY OFFICE, COMBATING TERRORISM: THE UN

LACKS COMPREHENSIVE PLAN TO DESTROY THE TERRORIST THREAT AND CLOSE TH

VEN IN PAKISTAN’S FEDERALLY ADMINISTERED TRIBAL AREAS (2008), availab

www.gao.gov/new.items/d08622.pdf.

17. For a report on US killings of Pakistani forces in an incident on June 10, 20

visit to an area of Pakistan held by Taliban warlords, see Dexter Filkins, Right at the 

YORK TIMES, Sept. 7, 2008 (Magazine), at 52.

18. Eric Schmitt & Mark Mazzetti, Bush Said to Give Orders Allowing Raids in Pa

YORK TIMES, Sept. 10, 2008, at A1.

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

WESTAD, THE GLOBAL COLD WAR: THIRD WORLD INTERVENTIONS AND THE MAK

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

6/2 (Jan. 14, 1980).

22. On the “good offices” negotiations over Afghanistan, see Thomas M. Fran

Nolte, The Good Offices Function of the UN Secretary-General, in UNITED NATION

WORLD: THE UN’S ROLES IN INTERNATIONAL RELATIONS 149–51, 180 (Adam Rob

dict Kingsbury eds., 2d ed. 1993).

23. UNGOMAP was mandated to support implementation of the 1988 Geneva 

Afghanistan. The Secretary-General’s proposal to dispatch military personnel in U

was confirmed in S.C. Res. 622, U.N. Doc. S/RES/622 (Oct. 31, 1988) and G.A. Res. 

Doc. A/RES/43/20 (Nov. 3, 1988).

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

22, at 150.

25. UNSMA was established by G.A. Res. 48/208, U.N. Doc. A/RES/48/208 (De

It was replaced by UN Assistance Mission in Afghanistan (UNAMA) after the Dec

Bonn Agreement. Agreement on Provisional Arrangements in Afghanistan Pend

establishment of Permanent Government Institutions, attached to Letter from th

General addressed to the President of the Security Council, U.N. Doc. S/2001/11

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).

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Taliban insurgency, this Resolution has sometimes been seen as a possible obstacle 

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).

31. See the General Assembly’s notably strong commitments in respect to comb

ism contained in the World Summit Outcome document, G.A. Res. 60/1, ¶¶ 81–91, U

RES/60/1 (Sept. 16, 2005).

32. On these matters relating to the role of the Security Council in Afghanistan s

1990s, I agree with Michael Reisman’s conclusions in his address “The Influence of 

in Afghanistan on International Law” on June 25, 2008, the first day of the US Naval W

workshop. See W. Michael Reisman, International Legal Dynamics and the Design of F

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 UNIT

SECURITY COUNCIL AND WAR: THE EVOLUTION OF THOUGHT AND PRACTICE SIN

464 (Vaughan Lowe, Adam Roberts, Jennifer Welsh & Dominik Zaum eds., 2008).

35. The Secretary-General, Report of the Secretary-General on the Situation in 

and Its Implications for International Peace and Security, ¶ 2, U.N. Doc. A/62/722, 

(Mar. 6, 2008). See also the Secretary-General’s report of September 2008 cited infr

36. On the revolution in military affairs and related doctrines, and how their we

came evident, see LAWRENCE FREEDMAN, THE TRANSFORMATION OF STRATEG

(2006).

37. Interview of Paul Wolfowitz, US Deputy Secretary of Defense, on Face the N

18, 2001), transcript available at http://usembassy-israel.org.il/publish/peace/arc

november/111804.html.

38. Information provided at a conference attended by the author at Allied Rap

Corps headquarters, Rheindahlen Military Complex–Mönchengladbach, German

2007).

39. US Army officers have been particularly vocal in expressing their concern

performance of the US Air Force regarding such matters as bombing missions gone 

insufficient priority to the provision of surveillance aircraft. See Thom Shanker, E

from Air Force, Army Adds Its Own Aviation Unit, NEW YORK TIMES, June 22, 2008

40. HUMAN RIGHTS WATCH, TROOPS IN CONTACT: AIRSTRIKES AND CIVILIAN 

AFGHANISTAN 2 (2008), available at http://hrw.org/reports/2008/afghanistan0908/

41. Carlotta Gall, Afghan Leader Criticizes U.S., Calling Arrests and Casualties Too 

YORK TIMES, Apr. 26, 2008, at A6.

42. See Paul Gallis & Vincent Morelli, Congressional Research Service, NATO 

stan: A Test of the Atlantic Alliance 1, No. 33267 (July 18, 2008).

43. Press Release, North Atlantic Treaty Organization, Statement by the No

Council (Sept. 12, 2001), available at http://www.nato.int/docu/pr/2001/p01-124e.

44. For a particularly well informed account of the evolution of the roles of the U

and NATO since 2001, see Astri Suhrke, A Contradictory Mission? NATO from Sta

Combat in Afghanistan, 15 INTERNATIONAL PEACEKEEPING 214 (2008), availab

www.cmi.no/publications/file/?3038=a-contradictory-mission.

45. Daniel Marston, Lessons in 21st-Century Counterinsurgency: Afghanistan 

COUNTERINSURGENCY IN MODERN WARFARE 240 (Daniel Marston & Carter Ma

2008).

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eration (May 2, 2008), http://www.defenselink.mil/news/newsarticle.aspx?id=4976

of Defense Robert Gates’s expression of concern about dual command and control i

Texarkana, Texas).

47. See Adam Roberts, Torture and Incompetence in the ‘War on Terror,’ SURVI

2007, at 199; AMNESTY INTERNATIONAL, AFGHANISTAN – DETAINEES TRANS

TORTURE: ISAF COMPLICITY? 20–30 (2007).

48. Information on ISAF troop numbers and areas of operation from various 

including ISAF Placemat current as of 1 December 2008, http://www.nato.int/isaf/

pdf/placemat_archive/isaf_placemat_081201.pdf (last visited Jan. 11, 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 

ghanistan, see COUNTERINSURGENCY IN MODERN WARFARE, supra note 45. Marst

at 220 is notably critical of the failure of the United States and its allies to train and eq

for counterinsurgency.

51. Headquarters, Department of the Army & Headquarters, Marine Corps Com

opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), availab

www.fas.org/irp/doddir/army/fm3-24.pdf [hereinafter US Army Field Manual 3-24

lication has a short foreword by then–Lieutenant General David H. Petraeus (who 

part in its preparation) and Lieutenant General James F. Amos.

52. HEADQUARTERS, DEPARTMENT OF THE ARMY & HEADQUARTERS, MARINE C

BAT DEVELOPMENTCOMMAND, FM 3-24/MCWP 3-33.5, THE US ARMY/MARINE CO

TERINSURGENCY FIELD MANUAL (University of Chicago Press 2007). This edition 

foreword by Lieutenant Colonel John A. Nagl and a new introduction by Sarah Sew

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

54. Chief of the General Staff, UK Army Field Manual, Vol. 1 Combined Arms 

Part 10 Counter-Insurgency Operations (Strategic and Operational Guidelines) (Jul

approach it laid out and its principles are still regarded as being valid. Its biggest prob

context in which it was set. It makes no mention of coalition operations, or the proble

ating in other people’s countries, the religious and cultural dimensions, and the effe

mation proliferation and information operations. The task of updating it started in la

still in development.

55. UK Joint Doctrine & Concepts Centre, The Comprehensive Approach: Jo

sion Note 4/05 (2006), available at http://www.mod.uk/DefenceInternet/Micro

OurPublications/JDNP/ (then JDN 4/05 pdf hyperlink).

56. UK Ministry of Defence Joint Doctrine Note 2/07, Countering Irregular Act

a Comprehensive Approach (UK Ministry of Defence, March 2007).

57. JOHN KISZELY, POST-MODERN CHALLENGES FOR MODERN WARRIORS 13

available at http://www.comw.org/rma/fulltext/0712kiszely.pdf.

58. Id. at 14.

59. US Army Field Manual 3-24, supra note 51, at viii. Three sources, all cited at l

text, are listed at this point. (The third, not discussed here, was an article in the Ne

January 2005.) See also the Annotated Bibliography, id. at Annotated Bibliography 

cites a wider range of sources. It omits key critical writings on the subject, most no

PARET, FRENCH REVOLUTIONARY WARFARE FROM INDOCHINA TO ALGERIA: THE A

A POLITICAL AND MILITARY DOCTRINE (1964). The omission of this title reflected a v

hard to get Americans to take on board French doctrines on COIN.

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Galula died in 1968. His work was belatedly published in France as CONTRE-INSU

THÉORIE ET PRATIQUE (2008).

61. ROBERT THOMPSON, DEFEATING COMMUNIST INSURGENCY: EXPERIENCES 

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, h

volved in an armed insurrection in the Philippines.

64. Id. at 5-31.

65. Id. at 1-13.

66. There has not been a census in Afghanistan for well over twenty years. Th

population was over 32.5 million as of July 2008. See Central Intelligence Agency, 

Factbook (2008), https://www.cia.gov/library/publications/the-world-factbook/pri

67. Colonel Charles Lacheroy, Talk, La Guerre Révolutionnaire (July 2, 1957), 

LOUIS TROTABA, LA DÉFENSE NATIONALE 322 (1958), cited in PARET, supra note 59

comments that “nothing,” in this case, means “the secure existence of the status qu

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 

South Vietnam were evident to knowledgeable observers even while the Vietnam W

ongoing. See BERNARD B. FALL, THE TWO VIET-NAMS:APOLITICAL AND MILITAR

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 Comm

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. 

17 (an ebullient attack on how US counterinsurgency training was implicated in 

death squads in Latin America over many decades).

76. For a useful account of this general problem (though it does not address th

ghanistan), see JOEL S. MIGDAL, STRONG SOCIETIES AND WEAK STATES: STATE-SO

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 C

gency Field Manual as Political Science and Political Praxis, American Political Science 

6 PERSPECTIVES ON POLITICS 347–48, 350 (June 2008), available at http://www.

imgtest/POPJune08CounterInsurgency2.pdf. The four contributors to this symp

Stephen Biddle (347–50), Stathis N. Kalyvas (351–53), Wendy Brown (354–57), and 

Ollivant (357–60).

79. Id. at 348. See also the excellent contribution of Stathis N. Kalyvas, who ar

adopting the people’s war model, the authors of the manual assume that the populati

with either the government or the insurgents. Id. at 352. This leads them (the auth

clude, incorrectly, that if the insurgents are removed from the equation the peopl

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 refer

ghanistan do not describe the elements that make the Afghan conflict unique.

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(Dec. 30, 2008), http://kabul.usembassy.gov/amb_speech_3012.html.

83. Based on conversations with Bernard Fall and material in his writings. See 

FALL, STREET WITHOUT JOY: INDOCHINA AT WAR, 1946–54 (1961); BERNARD B. FALL

WITNESS 1953–1966, at 9 (1966) (which alludes to these issues). See also Dorothy Fa

BERNARD B. FALL, LAST REFLECTIONS ON A WAR 9–10 (1967) (his widow’s remarkab

84. Astri Suhrke, Reconstruction as Modernisation: The ‘Post-Conflict’ Project in A

28 THIRD WORLD QUARTERLY 1301 (2007), available at http://www.cmi.no/publi

?2742=reconstruction-as-modernisation.

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

YEARBOOK 2006: TRENDS IN DISPLACEMENT, PROTECTION AND SOLUTIONS 36 

REFUGEE AGENCY, 2007 GLOBAL TRENDS: REFUGEES, ASYLUM-SEEKERS, 

INTERNALLY DISPLACED AND STATELESS PERSONS 8–9 (2008); and the UNHCR Sta

line Population Database, http://www.unhcr.org/statistics/45c063a82.html. On N

2008 UNHCR announced that so far in 2008 more than 276,000 refugees had retu

ghanistan under its voluntary repatriation program. Press Conference, Ewen MacL

UNHCR Representative in Afghanistan (Nov. 3, 2008), http://www.unama-afg.or

_english/2008/08nov03.html.

86. Adam B. Ellick, Afghan Refugees Return Home, but Find Only a Life of Despe

YORK TIMES, Dec. 2, 2008, at A17. Figure for IDPs from AFGHANISTAN INDEPENDE

RIGHTS COMMISSION, ECONOMIC AND SOCIAL RIGHTS REPORT IN AFGHANIST

(2008), available at http://www.aihrc.org.af/2008_Dec/Ecn_soc/Eng_Eco_Soc_rep.

Internal Displacement Monitoring Centre, http://www.internal-displacement.org 

Jan. 2009).

87. See, e.g., Peter Beaumont, Afghanistan: Fear, disillusion and despair: notes fro

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 

and Its Implications for International Peace and Security, ¶ 2, U.N. Doc. A/63/372, 

(Sept. 23, 2008).

89. Id., ¶¶ 16, 18.

90. Ann Scott Tyson, Commander in Afghanistan Wants More Troops, WASHIN

Oct. 2, 2008, at A19. McKiernan described Afghanistan as “a far more complex e

than I ever found in Iraq.”

91. See, e.g., New NIE – Afghanistan in “Downward Spiral” (Oct. 9, 2008), http://ww

.org/node/1017 (reporting on the draft National Intelligence Estimate on Afghanist

92. Figures for casualties of coalition forces in Afghanistan from http://icasual

(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 mistak

riod of Taliban rule up to 2001, see Ghaith Abdul-Ahad, When I Started I Had Six Fig

Have 500, GUARDIAN (London), Dec. 15, 2008, at 1, 4–5 (reporting from a Taliban-h

95. Robert Birsel, Pakistan Parliament Seen United against Militancy, Oct. 23, 2

lite.alertnet.org/thenews/newsdesk/ISL355611.htm (Reuters report from Islamabad

96. Thomas H. Johnson & M. Chris Mason, All Counterinsurgency Is Local, ATL

2008, at 16–17, available at http://www.theatlantic.com/doc/200810/afghan.

97. John A. Nagl & Nathaniel C. Fick, Counterinsurgency Field Manual: Afghani

FOREIGN POLICY, Jan.–Feb. 2009, at 42, available at http://www.foreignpolicy.com

.php?story_id=4587&page=3.

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II

Terrorism and Afghanistan

Yoram Dinstein*

I. Terrorism as an Armed Attack

A. The “War on Terrorism”

The expression “war on terrorism” is merely a figure of speech or a 

it is not different in principle from the parallel phrases “war on d

“war on poverty.” The reason is that the expression “war” is not used in e

text as a legal term of art. This is easily grasped by anyone who knows int

law. But the trouble with a catchy phrase is that it is apt to catch its users 

time, they (especially if they are laypersons and not international lega

tend to believe that the figure of speech which they have coined actua

reality.

Metaphors aside, there are two types of war pursuant to internat

inter-State (international armed conflicts) and intra-State (“civil war

international armed conflicts). In an international armed conflict, tw

belligerent States are locked in combat with each other. Large numbers o

currently engaged in the global “war on terrorism.” Yet, the strife qualifie

the international legal sense only when hostilities are raging against an en

that has joined hands with the terrorists. As we shall see, this is true only 

of Afghanistan.1

* Professor Emeritus, Tel Aviv University, Israel.

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A 

civil waris an armed conflict between the central government of a 

group (or groups) of domestic insurgents, or (absent a central governmen

various factions vying for power in the State. Whether an internal d

crosses the threshold of a non-international armed conflict is a matter of 

scale and intensity. The United States, which has gone through the throes 

ine “civil war” in its history, should know one when it sees it. In any event, 

that the cross-border, worldwide “war on terrorism” is a non-internatio

conflict—a notion that seems to have met with favor in the US Supreme 

the Hamdan case of 20062—is manifestly incongruous.

B. Internal Terrorism

In any analysis of the struggle against terrorism, the point of departure 

bifurcation between terrorism that is purely internal in character and th

launched from a foreign country and perhaps warrants action in or ag

foreign country. It is often forgotten that, until September 11, 2001, some o

nefarious acts of terrorism were actually local in character. The mega-b

Oklahoma City as well as the lethal activities of terrorists in Europe (su

Republican Army terrorists in the United Kingdom, Basque terrorists in 

“Red Brigades” in Italy and the Baader-Meinhof gang in Germany) a

(e.g., the Tamil “Tigers” in Sri Lanka, Moslem separatists in the Philip

sarin gas–wielding terrorists in the Tokyo subway) were all products o

terrorism. Even when the atrocity of 9/11 occurred, it is symptomatic 

while nobody knew for sure whether it was an external or an internal att

when the NATO Council on September 12 decided for the first time ever 

Article 5 of the 1949 North Atlantic Treaty—whereby an armed attack a

or more of the allies in Europe or North America “shall be considered 

against them all”3—this was qualified by a caveat that it be determined t

tack was directed from abroad against the United States.4 Such a factual d

tion was made only subsequently, on the basis of additional information 

The answer to internal terrorism lies in law enforcement. In other w

mestic law enforcement agencies are expected to cope with the crime by 

for the terrorists (if they are not killed or captured in the act and are i

arresting them, collating the necessary evidence, issuing an indictment, 

trial (based, of course, on due process of law), securing a conviction, 

punishment that fits the crime and ensuring that the court’s sentence 

carried out (so that a convicted terrorist is not pardoned or otherwis

from jail before the prescribed time). The law enforcement agencies—

(in all its incarnations, embracing an agency like the FBI in the United S

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the judiciary

may act on the national (or federal) or local (including 

or rural) level.

Even when terrorism is a matter of domestic law enforcement there 

dire need of foreign cooperation. This may be the case either because so

rial witness or evidence is located abroad, or—if a terrorist manages to fl

eign country—because extradition (based on a treaty in force) or some 

formal) means of rendition is required in order to bring the fugitive to ju

cess in the extradition of a terrorist may be contingent on the requeste

not considering his/her act as “political” in character. Stripping terroris

litical mantle is the thrust of the 1977 European Convention on the Supp

Terrorism6 and the bilateral 1985 US-UK Supplementary Extraditio

which has blazed the trail for a whole series of similar bilateral treaties 

by the United States in later years.

International cooperation is also required in a concerted effort to stop 

impede the financing of terrorism. This is the subject of the 1999 Int

Convention for the Suppression of the Financing of Terrorism.8 Mo

cantly, it is also the fulcrum of Security Council Resolution 1373 (2001

precedented landmark decision, whereby all UN member States (whet

parties to the Convention) are obligated to suppress the financing of te

under the supervision of a special body (the Counter-Terrorism Comm

monitors implementation.

C. Armed Attacks by Non-State Actors

The crux of the issue is whether an act of terrorism, launched from abroa

State actors, can be subsumed under the heading of an armed attack in th

Article 51 of the Charter of the United Nations (namely, as a trigger to 

State’s exercising counterforce in self-defense). When a terrorist act orig

side the borders of the target State, a foreign State must somehow be i

The reason is that it is indispensable for the terrorists to have a base of op

a springboard for their attack. Needless to say, such a base is not likely to b

on the high seas, in outer space or in an unclaimed and uninhabit

Antarctica.

Article 51 of the Charter opens with the following words: “Nothing in 

ent Charter shall impair the inherent right of individual or collective self

an armed attack occurs against a Member of the United Nations.” As ca

Article 51 talks about an armed attack occurring against a State (a mem

United Nations), but it does not say that the attack must be launched b

State. This is particularly notable given the comparable phraseology of A

of the Charter, which mandates that all members (i.e., States) shall refrai

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use of force in international relations.

It follows that, under Article 51

attack need not be launched by a foreign State; it can also be launched by 

actors from a foreign State. I have always (even prior to 9/11) pursued t

thought,12 but many other commentators were not convinced in the pa

scholarly disagreements should now be regarded as moot, inasmuch as—si

the general practice of States has become crystal clear.

The international response to 9/11 was unequivocal. Preeminently, bo

olution 1368 (2001)14—adopted a day after 9/11—and in the aforement

olution 1373 (2001),15 the Security Council recognized and reaffirm

context “the inherent right of individual or collective self-defence in a

with the Charter.” The NATO stand has already been referenced.16 It ma

that in the September 2001 meeting of the Ministers of Foreign Affairs, a

Organ of Consultation, in application of the 1947 Inter-American Treaty 

rocal Assistance, it was resolved that “these terrorist attacks against t

States of America are attacks against all American States.”17 This must 

stood in light of Article 3 of the Rio Treaty, which refers specifically to an 

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 o

struction of a Wall in the Occupied Palestinian Territory, the Internationa

Justice (ICJ) enunciated: “Article 51 of the Charter thus recognizes the e

an inherent right of self-defence in the case of armed attack by one State a

other State.”19 However, as correctly observed by Judge Higgins in he

opinion: “There is, with respect, nothing in the text of Article 51 that thus

that self-defence is available only when an armed attack is made by a Stat

lar criticism was expressed in the separate opinion of Judge Kooijmans21 

declaration of Judge Buergenthal.22 Indeed, the court itself noted witho

Security Council Resolutions 1368 and 1373, drawing a distinction be

situation contemplated by these texts (cross-border terrorism) and 

territories.23

II. Action against Terrorists within a Foreign Territory

When terrorists perpetrate an armed attack against one State from within 

tory of another State, there are three alternative scenarios of counteract

target State.

A. Action by Consent of the Foreign State

The first possibility is that the foreign State completely dissociates itsel

terrorists, who operate within its territory against its will. However, l

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military wherewithal to eliminate the terrorist bases by itself, the local St

the target State to send in its forces to accomplish (or assist in accomplis

mission. In such circumstances, the armed forces of the target State will d

operate against the terrorists on foreign soil with the consent of the gove

charge. There is no doubt about the legality of such action, as long as 

State’s expeditionary force carries out its mandate within the terms of th

as granted. Article 20 of the 2001 Draft Articles on Responsibility of Sta

ternationally Wrongful Acts, as formulated by the International Law Co

(ILC), sets forth clearly: “Valid consent by a State to the commission of 

by another State precludes the wrongfulness of that act in relation to t

State to the extent that the act remains within the limits of that consent

B. Action against the Foreign State

The second scenario is the antithesis of the first. The terrorists may act w

approval and even instigation of the foreign State itself, which uses them 

regular or paramilitary extension of its armed forces. In that case, the arm

is deemed to have been launched by the foreign State itself. In the Nicarag

1986, the ICJ pronounced that “it may be considered to be agreed that an 

tack must be understood as including not merely action by regular arm

across an international border,” but also the dispatch of armed bands o

lars” into the territory of another State.25 “The sending by or on behalf o

armed bands, groups, irregulars or mercenaries, which carry out acts 

force against another State” is specifically branded as an act of aggression 

3(g) of the General Assembly’s consensus Definition of Aggression a

1974.26 In the Nicaragua judgment, the ICJ took paragraph (g) of Articl

flect customary international law.”27 In the post-Nicaragua period, th

come back to rely on Article 3(g) in its opinion in the 2005 Congo/Ugan

Activities case.28 Interestingly, thus far, Article 3(g) is the only clause of t

tion of Aggression expressly held by the ICJ to be declaratory of customar

tional law.

The linkage between terrorists and a foreign State may be entangle

easy to unravel. The cardinal question is whether the terrorists act as th

organs of that State. In the Nicaragua judgment, it was categorically p

that, when the “degree of dependence on the one side and control on 

warrant it, the hostile acts of paramilitaries can be classified as acts of 

the foreign State.29 Yet, the ICJ held that it is not enough to have merel

control” by the foreign State. What has to be proved is “effective contro

sense of close operational control—over the activities of the terrorists.3

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The ICJ

s insistence on effective controlby the foreign State ove

paramilitaries can hardly be gainsaid. However, the proposition that “ge

trol” does not amount to “effective control”—and that a close operation

is always required—is not universally accepted. Indeed, in 1999, th

Chamber of the International Criminal Tribunal for the former Y

(ICTY), in the Tadic case, sharply assailed the Nicaragua prerequisite of c

ational control—as an absolute condition of “effective control”—mainta

this is inconsonant with both logic and law.31 The ICTY Appeals Cha

nounced that “overall control” would suffice and there is no need for cl

tional control in every case.32 The doctrine of overall control has been co

upheld in successive ICTY judgments (both at the trial and the appeal 

lowing the Tadic case.33

Article 8 of the ILC 2001 Draft Articles on Responsibility of States r

conduct of a person or group of persons shall be considered an act of a S

international law if the person or group of persons is in fact acting on th

tions of, or under the direction or control of, that State in carrying ou

duct.”34 From the commentary one can draw the conclusion that the ILC 

the Nicaragua test of “effective control,” although it conceded that the 

control may “vary according to the factual circumstances of each case.”

The ICJ returned to the topic in the Genocide case of 2007, where th

(Nicaragua) position was upheld and the Tadic criticism rejected.36 Ne

the ICJ set forth that the “overall control” test of the ICTY may be “appl

suitable” when “employed to determine whether or not an armed confli

national” (which was the issue in Tadic), but it cannot be presented “as e

plicable under the law of State responsibility for the purpose of determ

when a State is responsible for acts committed by paramilitary units, arm

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 anothe

territory which is required for the conflict to be characterized as international, 

well, and without logical inconsistency, differ from the degree and n

involvement required to give rise to that State’s responsibility for a spe

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 discus

While the foreign State is not backing the terrorists (who cannot be rega

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de facto organs, under either the Nicaragua test or even the Tadictest), it 

consent from the target State to the dispatch of troops with a view to the e

of the terrorists. The question is whether the target State is at an impasse—

act against the terrorists (absent consent) and having no ground to act a

foreign State (absent complicity with the terrorists)—or there is some 

nue open for action in conformity with international law.

As a rule, under international law, as per the 1949 ICJ judgment in 

Channel case, every State is under an obligation “not to allow knowing

tory to be used for acts contrary to the rights of other States.”39 Acco

State must not allow knowingly its territory to be used for terrorist attac

another State. The premise, of course, is that the local State is capable 

out the terrorists who are targeting another State. If the local State is in

doing that (for military or other reasons), the target State—invoking th

self-defense—is entitled to respond to the terrorist armed attack. In oth

the target State is allowed to respond to the armed attack mounted from 

territory of the local State by doing what the local State should have done 

place but failed to do. The emphasis is on the fact that, in these circums

target State can employ force against the terrorists (in self-defense) with

ritory of the local State, even without the consent of the government in 

call this exceptional state of affairs “extra-territorial law enforcement,”

nomenclature is not of major import: it is the normative substance th

The fons et origo of the norm in question is a famous dictum formulated 

retary of State Daniel Webster in resolving the Caroline incident of 183

A paradigmatic illustration of the application in practice of “extra

law enforcement” is the recent expedition of Turkish troops into nort

with a view to the elimination of Kurdish terrorists operating from that a

Turkey. Nobody is suggesting that the Iraqi government in Baghdad—o

authority in control of the Kurdish enclave of northern Iraq—is in comp

the terrorists, who belong to a renegade group. Nevertheless, since the ter

using Iraqi territory as their base of anti-Turkish operations, and the rat

government of Iraq is incapable of coming to grips with the problem at 

Turkey has the right to do what the Iraqi government should have done b

do. There is no armed conflict between Turkey and Iraq. What we do hav

territorial law enforcement” by Turkey in Iraq.

I am glad to note that in the ICJ 2005 decision in the Armed Activities 

ritory of the Congo case (Congo/Uganda), although the majority judgme

over the issue, two judges in their separate opinions—Judge Kooijmans 

Simma—cited my position on the subject.42 In doing so, Judge Kooijma

would be unreasonable to deny the attacked State the right to self-defen

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because there is no attacker State, and the Charter does not so requi

Judge Simma concurred.44

As for the majority position, all that I can say is that—in the past q

century—the ICJ addressed the issue of self-defense four times, startin

1986 Nicaragua case45 and going through the Oil Platforms case of 2003,

advisory opinion of 200447 and the 2005 Armed Activities case.48 Self-d

also mentioned on a fifth occasion (the Nuclear Weapons advisory o

199649). Is it merely a coincidence of bad luck that in all these separate pr

the ICJ made serious blunders in the interpretation of the law of self-d

the Nicaragua judgment there were a number of flagrant flaws, e.g., as r

distinction between more and less grave forms of use of force, the diffe

between an armed attack and mere frontier incidents, the non-mention 

diacy as a condition of self-defense, the denial of the right of a third Sta

collective self-defense on the basis of its own assessment of the situatio

ramifications of failure to report to the Security Council.50 In the Oil 

case, apart from repeating uncritically earlier rulings, the court added s

ous new dicta about the need for an armed attack to be aimed specifically 

State (as if indiscriminate but deliberate mine-laying in internationa

lanes is not enough).51 In the Wall advisory opinion, we have the unten

statement on the need for an armed attack to be mounted by one Sta

another State.52 In the Armed Activities case, the court ignored the issue 

territorial law enforcement.”53 And in the Nuclear Weapons advisory op

mention of self-defense comes in the most awkward fashion, in a 

dispositif in which the court wrongly meshed the jus in bellowith the jus a

The paradox is that, in 1986, scholars who critiqued the Nicaragua 

(like me) thought that the ICJ plummeted to a nadir. But the Nicaragua 

at least gave commentators an opportunity to chew on some juicy morse

beef. A quarter of a century later, with decisions that are much more lea

point of being cryptic and even mystifying—we tend to think of the 

judgment, in retrospect, as the acme of the ICJ contribution on the sub

III. The War in Afghanistan

A. Armed Attack and Self-Defense

Initially, Taliban-led Afghanistan was not directly involved in the armed 

leashed by al Qaeda against the United States on 9/11. The Taliban regim

became tainted due to its subsequent behavior. In its judgment of 1980 i

ran case, the ICJ held that if the authorities of one State are required und

tional law to take appropriate acts in order to protect the interests of ano

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and

while they have the means at their disposal to do socompletely fa

ply with their obligations, the inactive State bears international respon

ward the other State.55 By offering a haven to al Qaeda, in disreg

obligations under international law—and disdaining binding Securit

resolutions adopted even before 9/1156—the Taliban regime assumed re

ity for the armed attack against the United States and opened the way to 

cise of forcible US response in self-defense.

Once the Taliban’s brazen refusal to take the required steps against al 

lowing 9/11 became evident, the United States issued an ultimatum, im

demanding that the al Qaeda bases be closed down and that its leaders 

over.57 When the Taliban ignored the ultimatum, the United States (w

allies) went to war on October 7, 2001. At that juncture, the Taliban regim

its failure to gain wide recognition—constituted the de facto governm

ghanistan because it was in actual control of more than 90 percent of the 

A non-international armed conflict had independently flared up in A

long beforehand. This conflict was waged between the Taliban regime, o

hand, and the Northern Alliance, on the other. Once the inter-State 

United States and its allies versus Taliban-led Afghanistan and its al Q

broke out, it was prosecuted simultaneously with the intra-State war (th

versus the Northern Alliance) that went on until the fall of Kabul. The 

(inter-State and intra-State), although connected, must be analyzed sep

B. International and Non-International Armed Conflicts

Contrary to conventional opinion, I believe that the inter-State war in A

that started on October 7, 2001 continues unabated to this very day, d

transformation in the status of the Taliban (who no longer form the de 

ernment of Afghanistan). When American and allied troops are fig

Taliban (and their al Qaeda ally) on Afghan or adjacent (Pakistani) soil, t

rect sequel to the hostilities that led to the ouster of the Taliban from 

power in Kabul. Both segments (past and present) of the hostilities are co

scenes in the same drama unfolding in Afghanistan. The inter-State war 

over until it is over. And it will only be over once the Taliban are crushe

We still have in Afghanistan—side by side with the inter-State war (t

States et al. versus the Taliban)—an intra-State war (the Taliban versus 

government in Kabul). Except that, in terms of the intra-State war, the sh

on the other foot: the Karzai government is installed as the de jure gove

Afghanistan, whereas the Taliban—originally the central government 

facto)—are the insurgents. For the credentials of the Karzai governmen

visable to go back to Security Council Resolution 1386, adopted on Dec

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2001, which

acting under Chapter VII (i.e., in a binding manner)(i

the Bonn Agreement, concluded earlier that month between various Afg

cal factions, and (ii) gave its approval to the deployment of the Internati

rity Assistance Force (ISAF) in consultation with the Afghan Interim 

established by the Bonn Agreement.59

As long as the international armed conflict goes on in Afghanistan, 

bello in all its manifestations is applicable to the hostilities there. The sin

ture of the inter-State war in Afghanistan is that it is conducted on Afgha

the consent of the Karzai government. This means that, at any point in 

Karzai government (or, in the future, a successor Afghan government) 

draw that consent and pull the rug out from under the feet of the United 

ISAF. The latter are fully conscious of the need to avert such an unwelco

opment. If the United States (as heard at the conference) is applying in th

usual constraints relating to collateral damage—compared to the genera

imposed by the jus in bello—this is not an indication that the jus in bello is 

ing a metamorphosis. It simply shows that the United States is respon

concerns of the Afghan government, in whose territory the combat takes 

government of Afghanistan is fully entitled to insist on the fighting a

Taliban (and al Qaeda) being conducted with minimal civilian casua

among its citizenry.

Due to the special circumstances of the hostilities in Afghanistan—

the intimate relationship characterizing the alliance between the Talib

Qaeda—US and allied combat operations against both (as long as the

ducted in and around Afghanistan, including in particular the lawless t

of Pakistan), are clearly fused in a single inter-State armed conflict.

The differences from the vantage point of the jus in bello between the p

ternational and non-international armed conflicts in progress in Afghanis

not be exaggerated. Despite the profound disparity between the two type

conflicts from the angle of the jus ad bellum, there is a growing tendenc

much of the jus in bello to both categories equally.60 Apart from issues of 

(exemplified by inappropriate usage of terms such as “belligerent partie

“combatants”), there are only three components of the jus in bello in int

armed conflicts that—intrinsically—defy application in non-internatio

conflicts. These are the entitlement to the status of prisoners of war, the l

trality and belligerent occupation.

Even in the last three respects, there may be some analogies or simila

rule of non-intervention on behalf of the insurgents by foreign States 

place of the norms of neutrality. Detention of captured personnel in a

with minimal requirements of human rights comes in lieu of the tre

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prisoners of war. But there is no avoiding the fact that

in the absence o

tion of belligerency—captured insurgents can be indicted and convicte

son. In countries maintaining capital punishment, upon conviction d

may be sentenced to death. In other jurisdictions, they may languish in ja

Recognition of belligerency, issued by the central government in t

large-scale rebellion (as happened in the American Civil War), denotes t

international armed conflict will be governed by exactly the same rules t

plicable in international armed conflicts.61 It is occasionally alleged tha

tion of belligerency has fallen into disuse and that, even if it were to o

“common Article 3 and not the [Geneva] Conventions as a whole will ap

conflict.”62 However, Common Article 3 applies anyhow to any “arme

not of an international character occurring in the territory of one of the H

tracting Parties,”63 and this is not contingent on any recognition of be

Should such recognition be granted, it would undoubtedly signal that t

has to be treated as if it were an international armed conflict and that all 

of the jus in bello (including those relating to the status of prisoners of wa

ity and belligerent occupation) will become applicable.

The dilemma of recognition of belligerency is for the present Afgha

ment to wrestle with and resolve as it deems fit. This does not affect t

States, since—in any event, as stated64—its armed conflict with the Talib

as their al Qaeda ally) has been and remains international in nature. Wh

personnel are captured by American troops, they have to be treated in a

with the jus in bello. These captives cannot be considered guilty of treas

the United States (although the Afghan perspective may be different). In 

they would have been entitled to prisoner of war status. However, they m

nied that privilege due to the fact that they are unlawful combatants. I ad

some detail the meaning and consequences of unlawful combatancy a

Newport conference on terrorism (shortly after the outbreak of the Afgh

and I do not wish to repeat here what I said there. I also do not wish to p

domestic-constitutional issue of the rights of unlawful combatants to hab

within the American judicial system. I merely want to emphasize that T

ternees held on Afghan soil in a US detention center (e.g., in Bagram) c

there only as long as the Afghan government allows the United States to 

such facilities within Afghan territory.

C. Action against Terrorists outside Afghanistan

Action taken by the United States and numerous other countries agains

and diverse groups of terrorists in far-flung parts of the globe, beyond th

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of Afghanistan and its environs, do not constitute an integral part of the 

war raging in Afghanistan.

Al Qaeda has been active in many parts of the world, ranging from M

mia to Somalia, from Hamburg to Madrid. In each instance, a discrete di

the legal situation is required. However, there is one common den

namely, the absence of any built-in nexus between the measures taken fo

pression of the local version of terrorism and the inter-State war in Afgh

Iraq there is another war which, hopefully, is drawing to a close. In other 

measures taken against the terrorists must be seen in the context of law 

ment,66 leavened with sporadic injections of judicial and extrajudicial 

and cooperation by foreign States.

IV. A New Paradigm?

I cannot resist adding a few words in response to a plea heard at the con

come up with a new paradigm regarding the law of armed conflict. Th

means the first occasion on which I have heard such an exhortation, an

longer surprised when it comes up. While all international wars are alik

wars are truly similar to each other. After every major war, it is perhaps n

the international law of armed conflict is weighed and found wanting 

novel challenges specific to that war. When the challenges accumulate

quently suggested that a new paradigm is required. After World War I, th

tional community was reeling from the carnage of trench warfar

widespread use of gas warfare. After World War II, humankind was shoc

horrors of the extermination camps and compelled to take into account t

of atomic weapons. In both world wars it was contended that they were 

unto their own, since they constituted “Total Wars.” Then came the Viet

which was supposedly unique for it consisted of guerrilla warfare. Kosov

gular, because it was exclusively an air campaign. And so it goes: each wa

special footprints in the sand of time.

As a matter of fact—and of law—I do not see any pressing need for a 

adigm. Of course, there are always new technologies, new weapons 

methods of warfare. What these novelties convey is that the law of w

behind the actualities of the battleground. Yet, this is not an exclusive h

the jus in bello. To a greater or lesser degree, all law lags behind reality. L

ways have to trail events, trying to close gaps that have opened up be

life and the law.

There is a great deal of reluctance on the part of most States today to 

such gap—when it becomes readily apparent—by means of a formal tre

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because most treaty making today in the field of the jus in bello is con

However, recent restatements67 show that informal texts (if properly 

and formulated) may prove almost as effective as formal treaties.

In any event, the very difficulty of adopting new treaties only reinvig

argument against the practicability of setting up a new paradigm. With an 

digm—even if it is far from perfect—at least we know where we stand. T

have a quid pro quo of rights and obligations has been accentuated at th

ence, and indisputably this is the rub. The advantage of the present law o

ternational and non-international armed conflicts is that, by and large, w

terra firma: we know who is bound or entitled to do what. Admittedly, th

legal clarity are surrounded by patinas of ambiguity and controversy. Bu

inevitable state of all legal norms. The trouble with an innovative legal p

that it unbalances the existing paradigms. It is prone to plunge the entir

tem into a chaotic transition period in which legal certainty is eroded. W

jus in bello is concerned, what is liable to happen is that the notorious “f

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 INTERNA

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 th

lantic Council (Sept. 12, 2001),reprinted in 40 INTERNATIONAL LEGAL MATERIALS 12

5. SeeJack M. Beard, America’s New War on Terror: The Case for Self-Defense un

tional Law, 25 HARVARD JOURNAL OF LAW AND PUBLIC POLICY 559, 568 (2001–20

6. European Convention on the Suppression of Terrorism, Jan. 27, 1977, 1137 U

7. Supplementary Extradition Treaty, June 25, 1985, US-UK,reprinted in S. EX

17, 99th Cong., 2d Sess. 15 (1986).

8. International Convention for the Suppression of the Financing of Terroris

INTERNATIONAL LEGAL MATERIALS 270 (2000).

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

10. Eric Rosand, Security Council Resolution 1373, the Counter-Terrorism Comm

Fight against Terrorism, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 333, 334 

11. Id. at 332.

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

13. See, e.g., Oscar Schachter, The Lawful Use of Force by a State against Terrorist

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 th

(Sept. 21, 2001), reprinted in 40 INTERNATIONAL LEGAL MATERIALS 1273 (2001).

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y pp

U.N.T.S. 77, 95.

19. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, 2004 I.C.J. 136 (July 9), 43 INTERNATIONAL LEGAL MATERIALS 

(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 Act

the International Law Commission on the Work of its Fifty-third Session, U.N. G

Sess., Supp. No. 10, at 48, U.N. Doc. A/56/10 (2001), available at http://untreaty.un.o

instruments/english/draft%20articles/9_6_2001.pdf [hereinafter Report of the In

Law Commission].

25. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 103 (Jun

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. Ug

I.C.J. 19 (Dec. 19), 45 INTERNATIONAL LEGAL MATERIALS 271, 306 (2006) [herein

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), repr

INTERNATIONAL LEGAL MATERIALS 1518, 1540–45 (1999).

32. Id. at 1545.

33. For details, see EVE LA HAYE, WAR CRIMES IN INTERNAL ARMED CONFLICT

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 th

Genocide (Bosn. & Herz. v. Serb. & Mont.) (Feb. 27, 2007), 46 INTERNATIONAL LE

RIALS 185, 287–88 (2007).

37. Id. at 288.

38. Id.

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

40. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 244–51 (4th 

41. Letter from Mr. Webster to Mr. Fox (Apr. 24, 1841), 29 BRITISH AND FOR

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, 199

(July 8).

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

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52. See supra p. 46.

53. See supra 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 

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 th

People (Sept. 20, 2001), available at http://news.findlaw.com/hdocs/do

bushspeech20010920.html.

58. See Christopher Greenwood, International Law and the ‘War against Te

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(Mich

Charles Garraway & Yoram Dinstein eds.), 36 ISRAEL YEARBOOK ON HUMAN 

(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 Sic

Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convent

vention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 

Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Conventi

vention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 

135 [Geneva Convention III]; and Convention Relative to the Protection of Civilian 

Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Convention 

printed in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff 

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 TH

TERROR 151 (Fred Borch & Paul Wilson eds., 2003) (Vol. 79, US Naval War Coll

tional Law Studies).

66. See supra pp. 44–45.

67. The archetypical model is the San Remo Manual on International Law A

Armed Conflicts at Sea (L. Doswald-Beck ed., 1995), reprinted in DOCUMENTS ON T

WAR, supra note 63, at 573.

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III

International Legal Dynamics and

the Design of Feasible Missions:

The Case of Afghanistan

W. Michael Reisman*

I

Military missions must be accomplished within a political and 

ronment. One often indistinct and elusive but nonetheless imp

mension of that environment is comprised of the expectations held by 

relevant actors (some of whom may be far from the actual arena of opera

what constitutes or will constitute, in the circumstances, lawful action

tions which approve or disapprove a projected mission can be significan

determining the quantum of resources required for mission accomplis

indeed, in determining whether there will be a successful outcome. In s

these considerations may require adjustments in the mission’s design 

abandonment.

It is a truism that it is wise to consult your lawyers before you act, for they 

in identifying authoritative expectations. In international law, such con

do not always help, because expectations with respect to the lawfulness 

or projected actions in the contemporary international political syste

necessarily congruent with the stuff with which lawyers ordinarily work, 

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

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texts of international law. For one thing, the jurymen of international la

of politically relevant actors, have expanded from a small group of na

elites who produce those texts.1 It now includes a wide range of non-gov

actors, whose activities and influence are amplified by easy mobility an

network of communications. For another, the texts of international law 

produced by nation-State elites vary in their effectiveness and the exten

they reflect or shape expectations; some of the texts, for all their legalistic 

are only aspirational, while others are “law-in-the-books” rather than 

action.” Still other texts are part of the “myth system” of international 

than its “operational code.”2

So although formal international legal texts can always be “crunched” 

logical exercises to reach desired “legal” conclusions, those conclusions 

to be quite different from the expectations of lawfulness held by the act

expectations of lawfulness are actually relevant for a particular mission

international legal specialist who plays a role in the design of a military m

who appreciates the relevance of the legal variable as a factor in the mi

two daunting professional challenges: first, in identifying who are the 

relevant actors in a specific context, and, second, in articulating and anal

operative expectations of lawfulness. The key values held by importan

the institutions of, and outside of, contemporary international law can 

factors in the cost or feasibility of a particular military mission. In design

praising missions against Al Qaeda, the collective views of the UN Secur

cil, other governments and non-State entities form parts of the legal env

Al Qaeda’s agents and franchisees often operate across political boun

may be independent of or have only shadowy relations with governmen

ponents within them, instead deriving their support from non-gov

entities.

I believe that Afghanistan, the central focus of this workshop, provi

structive example of my thesis. Because my purpose is to illustrate the re

tween mission design and international legal and institutional enviro

cursory review of the modern history of Afghanistan is necessary.

II

Afghanistan is divided along geographic and ethnic lines which do not co

political borders. Neither its demographic divisions nor its topography 

to effective and centralized control or internal stability. Still Afghanista

an extended period of stability in the reign of Zahir Shah, from 1933 to 

tranquility ended when Zahir Shah was overthrown by his brother-in

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terminated the monarchy and established a republic with, mirabile dictu, 

its President. Five years later, he, in turn, was overthrown by the Peopl

cratic Party (PDPA). Nur Mohammed Taraki became President, the rep

rechristened the Democratic Republic of Afghanistan, and closer relation

Soviet Union were forged. The Soviet Army intervened in Afghanistan in 

installed Babrak Karmal in place of Taraki. In terms of internal order, it 

on the order of a personnel change than a regime change, as the politic

lary and secular governmental program of Karmal’s predecessor contin

President Carter had begun to fund and train Mujahidin through Pak

cret service, the ISI (Inter-Services Intelligence agency), to fight the Sov

government.3 The policy was continued under President Reagan. The M

were a largely religiously-inspired resistance. That said and without m

the mobilizing potential of Jihadist Islam, any attempt to depict or co

the war or Afghan politics, in general, in exclusively ideological, national

ligious terms without accounting for ethnicity, language, region, the 

wealth or simple bare-knuckle power politics would oversimplify a d

complex political system.

The Soviet occupation and the Afghan resistance cost the lives of ove

lion and perhaps as many as two million Afghans; five million Afghan

country.4 When the Soviet Union withdrew from Afghanistan in 1989, th

tion of the Soviet military from the Afghan equation did not produce th

ate collapse of the Najibullah government. The civil war continued. The 

ultimately brought Dr. Najibullah down appears to have been the Sovie

in 1992 to terminate the sale of petroleum to the Afghan government.

Even after the collapse of the Najibullah government, the civil war g

with great loss of life; by then, much of the fighting was being carried o

various Mujahidin factions, who broke along language, ethnic and regi

Beginning in 1994, however, the Taliban, a fundamentalist Sunni an

force based in the south, emerged as a more unified element. The Tali

Kandahar and then Kabul in 1996 and by 2000 had captured 95 perc

country.5 The erstwhile Democratic Republic of Afghanistan morphed i

lamic Emirate of Afghanistan.

Only Pakistan, Saudi Arabia and the United Arab Emirates recognized 

tained diplomatic relations with the Taliban as the legitimate governmen

the Taliban fare better at the United Nations, where the General Assembly

tials Committee refused to seat the Taliban government, despite its effect

of the country. Instead, the Committee accredited the representatives of 

government of President Rabbani, the leader of a Mujahidin faction, who w

nowned for his commitment to secular values or to democracy.

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There is no indication that withholding certification at the United N

any effect on the Taliban’s control of the country. Indeed, it was only in i

port after “Operation Enduring Freedom”6 that the Credentials Comm

note of the agreement on provisional arrangements in Afghanistan which 

rity Council had endorsed in Resolution 1383 (2001).7 Thereupon, the K

ernment assumed the Afghan seat in the Assembly. Notwithstanding th

fallacy of post hoc ergo propter hoc, it seems safe to say that the General A

Credentials Committee was endorsing the regime change of Operation 

Freedom.

Osama bin Laden’s organization, Al Qaeda, had been born and nurtu

borders of Afghanistan during the war against the Soviet Union’s occup

Al Qaeda is not a political movement indigenous to Afghanistan. It was 

part of a pan-Islamic military effort to force the Soviet Union from Af

After the victory in 1989, Al Qaeda expanded its goals and relocated 

When Al Qaeda was subsequently expelled from Sudan as a result of US 

Osama bin Laden returned to and began to operate from Afghanistan. 

lished training and operational bases and his operatives conducted sign

tions, inter alia, against US installations and forces. Those latter actions 

have been the principal reason why the Security Council began taking 

interest in Afghanistan. Let me turn to them briefly.

In the late 1990s, though the General Assembly had refused to seat th

government, Secretary-General Kofi Annan appointed a special repr

who was charged with negotiating a political settlement. Meanwhile, th

Council sought to influence events in the Afghan civil war through vario

tions which reflected different concerns. Security Council Resolution 1

cember 8, 1998, for example, condemned many of the human rights vio

the Taliban but the Council registered, in particular, that it was “deeply d

the continuing use of Afghan territory, especially areas controlled by th

for the sheltering and training of terrorists and the planning of terroris

paragraph 13, the Council demanded “that the Taliban stop providing 

and training for international terrorists and their organizations and that 

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 b

and to allow him and others associated with him to operate a network of 

training camps from Taliban-controlled territory and to use Afghanistan a

from which to sponsor international terrorist operations.10

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In 2000, the Council reiterated this language and continued by 

strongly 

ing the continuing use of [Afghan territory, especially areas controll

Taliban], for the sheltering and training of terrorists and planning of ter

. . . .”11 The Council determined that the failure of the Taliban to respond 

mands of paragraph 13 of Resolution 1214 and of paragraph 2 of Resolu

of the preceding years now “constitute[d] a threat to international peace 

rity.”12 Acting explicitly under Chapter VII, the Council essentially reit

demands which had been made in previous resolutions but also dema

Osama bin Laden be surrendered either to the United States or to a co

would turn him over to the United States. The Council also imposed a

economic sanctions in Resolution 1267, denying air access and freezin

year later, in Resolution 1333 (2000), the Council reiterated its deman

end of July 2001, the Council ordered the Secretary-General to establish a 

ing mechanism for the implementation of all of the previous resolution

Together, these were the measures which the Security Council mem

able to agree to take during that period. None prescribed by its sequence 

tions appears to have had any effect on the Taliban’s control and admini

Afghanistan or Al Qaeda’s freedom of operation within or beyond it

Quite the contrary: only forty-three days after the last Council resolutio

tember 11, 2001, Al Qaeda mounted its infamous attacks on civilian an

targets in the United States.

The reaction of the Security Council on September 12, in Resolution 

teresting and worth quoting in full, for its content tells much about the de

namics of the Council, its capacity to respond effectively to such crises and, 

its potential to facilitate—and restrain—such military actions as the United 

cluded were necessary for its defense. Resolution 1368 provides, in its entir

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 securit

by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in acc

with the Charter,

1. Unequivocally condemns in the strongest terms the horrifying terrorist 

which took place on 11 September 2001 in New York, Washington, D

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yg, y , 

to international peace and security;

2. Expresses its deepest sympathy and condolences to the victims and their 

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 perp

organizers and sponsors of these terrorist attacks and stresses that those resp

for aiding, supporting or harbouring the perpetrators, organizers and spo

these acts will be held accountable;

4. Calls also on the international community to redouble their efforts to 

and suppress terrorist acts including by increased cooperation a

implementation of the relevant international anti-terrorist conventions and 

Council resolutions, in particular resolution 1269 (1999) of 19 October 199

5. Expresses its readiness to take all necessary steps to respond to the terroris

of 11 September 2001, and to combat all forms of terrorism, in accordance 

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 th

considerandum and the “all necessary steps” in operative paragraph 5 r

Security Council and not to any single State; the single State (obviously t

States) is confined, in the third considerandum, to self-defense. But by ch

ing, in the second considerandum, terrorist acts as “threats to the pea

than “breaches of the peace” or “acts of aggression,” the Resolution 

from falling under Article 51’s right of self-defense.15 As for the opera

graphs of the Resolution, the third calls for judicial action, while the fo

back to the various economic and other means adopted in the previous re

But their lack of success was painfully manifest in the ruins still smok

blocks south of Turtle Bay.

On September 28, 2001, the Council revisited the problem in a somew

environment. Resolution 1373 (2001), again explicitly invoking Chapter 

ated the pre-9/11 judicial and economic strategies but added that “all State

[t]ake the necessary steps to prevent the commission of terrorist acts, in

provision of early warning to other States by exchange of information.

vember 14, 2001, Resolution 1378 could refer, if vaguely, to the Counci

for “international efforts to root out terrorism,”17 but it immediately made 

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had earlier, that this was to be done 

in keeping with the Charter of the U

tions.”18 Those words are code for the Charter’s prohibition on the unilat

force in any circumstance other than exigent self-defense. But in this Reso

Council inserted, in its fourth considerandum, an explicit condemnatio

the Taliban for allowing Afghanistan to be used as a base for the export of terro

the Al-Qaida network and other terrorist groups and for providing safe h

Usama Bin Laden, Al-Qaida and others associated with them, and in this con

Council] support[s] the efforts of the Afghan people to replace the Taliban regim

This was the first mention of an internationally approved regime cha

ghanistan. But it would be more than overstatement to call this an a prio

zation or an authentic UN initiative. By the time the Resolution was a

Special Forces were operating in northern Afghanistan, actively ass

Northern Alliance, and they would shortly be in Kabul, where a new go

would be installed. As for the Taliban, they would withdraw from the c

the other cities. They were no longer the de facto government of Afgha

were far from defeated as a military force. So the Council was, in effect, 

firming and acceding to (or participating in the fruits of) a fait accompli 

been accomplished without prior Council authorization.

In Bonn, Germany, a conference, which brought together non-Taliba

as well as warlords who had formerly been associated with the Taliban

vened, essentially by the United States. On December 5, 2001, the confe

cluded the Bonn Agreement, which put in place provisional arrangem

new government.20A day later, on December 6, the Security Council, in R

1383, endorsed the Bonn Agreement, called on all Afghan groups to su

new government and declared itself willing to support it.21 On Decemb

Council, again, accommodated to rather than shaped events. In Resolu

in effect, it acceded to the Bonn Agreement’s request that the Council au

International Security Assistance Force, or ISAF; took note of the Un

dom’s willingness to organize and lead ISAF; and authorized ISAF to p

mission in Afghanistan for 6 months.22 It has been renewed semiannua

III

The purpose of this rapid diachronic review of the actions of the Securi

from the late 1990s to the end of 2001 is not to belittle the contribution o

rity Council or of the United Nations to the US response to the attacks by 

Quite the contrary! I believe that the United Nations is an important inst

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its member States and, when correctly and sensibly used, can be a criti

ment of policy for the United States.23 But the United Nations is not a su

tipurpose instrument that can be readily applied to all situations. The 

which the organization and its members value most—in particular natio

eignty, non-intervention and territorial inviolability—and the idiosyncr

ture of the Security Council limit the organization’s effectiveness in man

resolving conflicts with aggressive global Salafism. Or, to formulate it in m

tive terms, the way a military mission is designed may influence whether 

rity Council or, more generally, the United Nations will facilitate or con

may also determine the degree of that facilitation or obstruction.

Prior to 2001, the efforts of national actors who were threatened or we

of Al Qaeda to work through the United Nations were of little effect. Th

was not that the Council’s operational arsenal of diplomatic, economic 

logical instruments—which, after 1999, were even taken under its plenar

VII powers—are inherently ineffective. In some cases, that arsenal has 

fective, either as a primary or adjunct instrument for securing desire

changes. The anti-Taliban sanctions might have worked over a very long 

time, especially if some of the governments contiguous to Afghanistan 

complied with and implemented them.

The difficulty lies in that time factor. In the twenty-first century, gov

which anticipate the types of military attacks which actors such as Al Qae

cannot always afford the luxury of waiting for a very long period of time 

rity Council measures to “bite.” The most noxious of Salafist threats can 

a much more accelerated timetable and with a greater potential for d

impacts.

This is, of course, what happened in the case of the Taliban and Al Qa

the Council fine-tuned and patiently waited for its sanctions program to 

Taliban government, amply supplied with illicit drug money and benefi

either indifferent or actively sympathetic elements in some contiguous S

forced its control over Afghanistan; as for Al Qaeda, comfortably cocoo

Taliban system, it pursued its various programs, culminating in its ope

September 11.

The United Nations is neither world politics nor even its major ar

part of it, a composite actor within it. Assessing the effectiveness of the U

this phase of the Afghan war requires us to look at the broader arena of w

itics. There, what appears to have happened is that after September 11, t

States and those States cooperating with it, perforce, took their own init

for the other less supportive but indispensable members of the Securit

they accommodated themselves to what appeared to be a fait accompli

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measure of Council authorization, by retrospective stamp of approval

for the validation of the Council’s own relevance and a nominal share o

sion. In the coin of international political exchange, that validation w

something.

But the Security Council does not control the market on internation

ity. It may not always deny lawfulness to an action by withholding its 

proval; conversely, its seal of approval does not always assure that the 

question will be viewed as lawful by other politically relevant actors in th

tional system. This is especially the case when the action involves invadin

placing an existing government—hence the tepid Security Council effor

9/11 and the limited authorizations (usually coming after the fact) ther

IV

One of the lessons for the future here appears to be that where urgent acti

entities like Al Qaeda and its affiliates is required, the responses which m

most, be expected from the Security Council—the sorts of measures orde

Council in the period before September 11, 2001—will not be suffici

time; in these circumstances, unilateral and, by its nature, anticipatory m

tion may be the only meaningful option. A confirmation of the internat

fulness of such unilateral action by the Security Council and the mo

international processes of decision should be sought. But it is not likely 

action, even when plausibly construed as a form of self-defense, will be a

in advance by the Security Council or confirmed or celebrated after the 

pears clear, however, that the more ambitious, extensive and anti-gov

the unilateral action undertaken, the less likely will be Security Counc

general international support.

For the reasons set out in Part I, one of the considerations in the desig

lateral action which a State feels it must take in either reactive or anticip

defense24 should be to increase its international legal acceptability and t

perceptions of the violation of international law. I would suggest that th

even if addressing these considerations means ultimately that a less effica

itary action will be mounted. Missions which are designed so that they 

complished rather quickly, if unlikely to win formal and informal int

approval, are more likely to provoke less, and less intense, internatio

proval. By contrast, longer-term missions and, as I will explain in a mom

pations will require international authorization and even if it does no

may not be an assurance of success.

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Thus, consideration of the legal perspective I sketched a moment ago 

general recommendation: where possible, narrow the focus of the miss

neutralization or degrading of the specific terrorist threat and not to 

change of the government which has served as the cocoon of the terrori

V

Unquestionably, transforming a regime which is providing refuge and a 

pad for a terrorist group into a regime “enduring freedom” is a more co

sive solution than simply degrading the capacities of the terrorist group 

aside from the formidable operational difficulties in effecting a regim

which I have considered elsewhere,25 planners cannot ignore the intens

tional political and legal resistance which a military mission of thi

provoke.

A military action against a specific noxious target within a State is a finit

porally limited military rather than an extended counterinsurgency actio

the controversy it may excite (and I will consider it in a moment), it will 

internationally controversial than an action to change the entire regime 

State.26 If the jurisprudence of the International Court is taken as a reliab

tor of what formal international law currently considers lawful self-defen

of self-defense appears to be limited to response to and neutralization of 

diate threat,27 and even within those narrow parameters, international 

of lawfulness may vary.

Contrast, first, the international legal reactions to the Clinton admin

periodic aerial actions against Iraqi air defenses with the objective confin

grading” them; and, second, the international legal reaction to the US i

Iraq in order to change the regime. Or, to take a rather wild hypothetica

imagine the contrasting reactions to (I) unilateral ISAF or Afghan milit

against Al Qaeda or Taliban bases in the frontier areas of Pakistan and 

eral ISAF military action to change the Pakistani government because 

high in the government or in ISI were believed to be supporting the Tal

Qaeda.

Afghanistan, I concede, presented a difficult case for military planner

Al Qaeda was effectively integrated in the Ministry of Defense of the Ta

ernment. But I am not sure that even this overlap required conflating th

and Al Qaeda or that it precluded the United States from characterizing 

sary as Al Qaeda, reserving for the Taliban government the status of an o

reaching the actual enemy, rather than an indistinguishable part of t

Once Al Qaeda and the Taliban were conflated, however, and Afgh

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change became an ineluctable part of the mission, it was no longer possib

centrate efforts on Al Qaeda; significant resources had to be diverted from 

tralization of Al Qaeda to creating and shoring up another Afghan govern

then protecting it from the Taliban. In that difficult process, military pla

to accommodate the full range of civil, political and human rights sta

contemporary international law, which are demanded with ever greate

through myriad governmental and non-governmental channels. Regime 

perforce a comprehensive program and brings into the decision proc

range of non-governmental organizations, insisting on objectives which

worthy, detract from the prosecution of a more-focused military action; 

focused military action would bring in far fewer and more-focused 

VI

A brief digression: Perhaps a more realistic understanding of how daunt

sion regime change is, especially in Afghanistan, might have led to a mo

military objective. A contemporary essay on Afghanistan appearing in 

popular online encyclopedia states:

Once in power, the [People’s Democratic Party of Afghanistan] moved to 

freedom of religion and carried out an ambitious land reform, waiving farme

countrywide. They also made a number of statements on women’s rig

introduced women to political life. A prominent example was Anahita Rateb

who wrote the famous New Kabul Times editorial which declared: “Privilege

women, by right, must have are equal education, job security, health services, 

time to rear a healthy generation for building the future of the country . . . ed

and enlightening women is now the subject of close government attention.”2

Incidentally, the online essay is not referring to the contemporary gove

President Hamid Karzai but rather to the regime of Taraki, Amin, and N

of the PDPA, the government which was then supported by the Soviet U

The essay from which I was reading a moment ago continues:

The majority of people in the cities including Kabul either welcomed 

ambivalent to these policies. However, the secular nature of the government 

unpopular with religiously conservative Afghans in the villages and the cou

who favoured traditionalist “Islamic” restrictions on women’s rights and in dai

Does it sound familiar?

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Ronald Neumann, formerly the US ambassador in Kabul, reported th

poll taken in Afghanistan indicated that 55 percent of the respondents w

United States to remain.30 That figure would be decisive in a normal civi

where votes decide. But in a belligerent situation, it is raw power that de

if I may hazard an opinion, I would suggest that the balance of power in 

stan tilts in favor of the conservatizing and not the secularizing elemen

over, the relevant elite of the critical contiguous State most disposed 

resources in trying to influence developments in Afghanistan also appear

ward the conservatizing elements.

The would-be regime changer should bear in mind that, once such a 

embarked upon, if military efforts prove indeterminative at acceptable 

political solutions will have to be sought. In Afghanistan, a political solut

have to involve the Taliban. At a minimum, it would have to include so

power for the Taliban in return for their commitment neither to host n

port Al Qaeda. This would enable the United States to concentrate its re

Al Qaeda. That could have been the principal objective of the mission 

outset.

I have taxed you with this little excursus from the subject of interna

and expectations of international lawfulness to emphasize that outside 

they are willing to invest very great resources, could be influential fact

Afghan political and military drama. But even then, the outside efforts 

prove indecisive, for Afghanistan is locked in its own historical process.

VII

I have recommended, from the standpoint of international law, the v

“less-is-more” approach to the design of missions when international ex

of lawfulness appear unlikely to support a broader mission. But, in conte

ghanistan, is “less” really likely to be more acceptable to the institutions 

men of international law? In the context of Afghanistan and i

geographical factors, can unilateral actions directed against entities like 

nesting in another State, ever be lawful? And how can one prospectively a

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 rath

on operative expectations of lawfulness. I quote from an online report o

ciated Press (AP) on June 15, 2008.

Afghan President Hamid Karzai threatened Sunday to send Afghan troops ac

border to fight militants in Pakistan, a forceful warning to insurgents and the P

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g

y p 

recent fighting in Helmand province, where hundreds of US marines ha

battling insurgents for the last two months, most of the fighters came from Pak

Of interest to us is that President Karzai indicated that he believes that 

threatening is a form of lawful self-defense. He stated that “Afghanist

right to self-defense, and because militants cross over from Pakistan ‘to 

kill Afghan and kill coalition troops, it exactly gives us the right to do th

Karzai even threatened targeted assassinations in Pakistan of Baitullah 

the Taliban leader in Pakistan, and Mullah Omar, the leader of the Tali

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 

he has made it) was interesting. Yousuf Raza Gilani, the Pakistani Prime 

insisted, according to the Associated Press, on Pakistani sovereignty ove

tory but said that “the Afghan-Pakistan border is too long to prevent pe

crossing, ‘even if Pakistan puts its entire army along the border.’”33 In 

while, he said that Pakistan “is seeking peace deals with militants in its b

cluding with Mehsud.”34 This particular Pakistani initiative has conc

United States, the AP continues, “[b]ut Pakistan insists it’s not negoti

‘terrorists,’ but rather with militants willing to lay down their arms.”3

Mehsud seems to see it differently. He, the AP adds, “has said he would 

to send fighters to battle US forces in Afghanistan even as he seeks p

Pakistan.”36

And, one might add, he is not puffing. The Associated Press reports 

and NATO commanders say that following the peace agreements [be

Taliban and Pakistan] this spring, attacks have risen in the eastern area o

stan along the border.”37

NATO’s ISAF declined to comment on Karzai’s statement but unnam

ficials were willing to weigh in, on condition of anonymity. I quote their s

U.S. officials have increased their warnings in recent weeks that the Afghan con

drag on for years unless militant safe havens in Pakistan are taken out. Military 

say counterinsurgency campaigns are extremely difficult to win when milita

safe areas where they can train, recruit and stockpile supplies.38

No one who has studied counterinsurgency will contest that. The 

Emergency, which is the poster child of successful counterinsurgen

which, incidentally, required three hundred thousand British and other t

twelve years—was conducted in a peninsula whose surrounding water

controlled by the British; there was no contiguous friendly or passiv

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provide safe redoubts like those available to the Taliban and Al Qaeda in 

areas of Pakistan. Moreover, the insurgents were racially distinct from th

population. And the British public supported the mission.

In August 2007, Senator Barack Obama said, in a speech delivered in 

ton: “If we have actionable intelligence about high-value terrorist targets 

dent Musharraf won’t act, we will.”39 The claim of a right of “hot pursui

maritime confrontations, is controversial. In the I’m Alone arbitration,4

of pursuit was treaty-based and, hence, applied only to US and UK fl

Moreover, it applied only to pursuit within one hour’s sailing time of 

waters. So the tribunal’s holding, which is not distinguished by its cohe

lates to treaty interpretation rather than a pronouncement of customar

tional law.

Even more controversial is the claim of a right of hot pursuit across 

borders. In terms of theory, the UN Charter obviates terrestrial hot purs

only unilateral action available to a State is self-defense against an arm

once the adversary has fled the attacked State’s territory, the right of se

would exhaust itself. In theory, further prosecuting action that had com

legitimate self-defense might itself degenerate into an armed attack.

International politics and the use of the military instrument as part 

proved to be more complicated than the simple theory of the Charter. In

hot pursuit of an adversary which has entered your territory as well as an

interdiction of an enemy force sheltering in the contiguous territory o

State have been occurring. While the State whose territory has been inva

most always (there are some exceptions) issued a protest, it is harder to 

that the international legal system, as a whole, has unequivocally condem

of these pursuits or generally condemned all such actions in all circums

take examples only from this annus mirabilis, consider (I) the Turkish 

the Kurdistan Workers’ Party in northern Iraq, (ii) the Colombian pur

Revolutionary Armed Forces of Colombia in northern Ecuador and (iii) 

Karzai’s threat to send Afghan troops into Pakistan in pursuit of Tali

What was the operative judgment as to international lawfulness in th

What sanction was applied, if transgression there was?

Consider the paradigmatic problem of which the war in Afghanistan 

example: irregular non-State forces shelter in an uncontrolled area of St

which they regularly conduct lethal raids into State B and then withd

safety of State A. According to the International Court, the actions of th

forces are not deemed to fulfill the “armed attack” requirement of Articl

Charter. Consequently, even if the Court were to expand its concept

scope of self-defense so that it was available against non-State entities, S

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not respond with military force. State B is confined to bringing the ma

Security Council. Assume that State B does bring the matter to the Secu

cil for ten consecutive attacks and, in each instance, the Security Coun

resolution, condemning the attacks and ordering State A to act to prev

The attacks continue.

At a certain point, State Bwill enter the areas of State A where the irreg

ter and seek to kill or capture them. Will the international community, t

various decision processes, condemn and effectively sanction the action

The international legal system can speak with great subtlety and n

Corfu Channel,

41 the International Court of Justice condemned the Un

dom for having entered Albanian waters without the Albanian governm

sent. It held that this condemnation was itself sufficient sanction and a

evidence which had been improperly seized to be admitted. My estima

situation with respect to cross-border pursuit is that there will always b

condemnation because of national pride and concern for the erosion o

ciple of territorial integrity but there will only be meaningful and sancti

condemnations by the international decision processes in those cases in 

cross-border action is deemed to have been unnecessary, disproportio

violation of the differentiation principle.

It is, of course, by the application of these criteria that the law of war 

tionally assessed the lawfulness of actions in new situations. Whether the 

rity Council or the International Criminal Court will look at it that way 

be seen. But even a condemnation of an internationally unauthorized m

tion in another State which does not affect that State’s territory or poli

pendence will be less severe than a condemnation for a temporally ext

vigorously resisted regime change.

Notes

1. W. Michael Reisman, The Democratization of Contemporary International L

Processes and the Differentiation of Their Application, in DEVELOPMENTS OF INTE

LAW IN TREATY MAKING 15 R. Wolfrum & V. Röben eds., 2005),reprinted in 2 TRAN

DISPUTE MANAGEMENT 3 (2005).

2. See W. Michael Reisman, On the Causes of Uncertainty and Volatility in I

Law, in THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CO

SOVEREIGNTY, SUPREMACY AND SUBSIDIARITY: ESSAYS IN HONOUR OF PROFE

LAPIDOTH 33 (Tomer Broude & Yuval Shany eds., 2008).

3. See JOHN K. COOLEY, UNHOLY WARS: AFGHANISTAN, AMERICA, AND INTE

TERRORISM (2000).

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fgffgggfggp

TIONAL, http://www.amnesty.org/en/library/asset/ASA11/016/1999/en/dom-ASA1

.html.

5. Afghanistan—Taliban Era, http://www.globalsecurity.org/military/world/

taliban.htm (last visited Oct. 15, 2008).

6. Operation Enduring Freedom is the title given to the joint US-Afghan coun

operations in Afghanistan from October 7, 2001 until October 6, 2005. See B

LAMBETH, AIR POWER AGAINST TERROR: AMERICA’S CONDUCT OF OPERATION 

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, 200

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-es

of Permanent Government Institutions, Dec. 5, 2001, available at http://www.un.or

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

23. See W. Michael Reisman, The United States and International Institutions, 4

62 (1999).

24. See W. Michael Reisman & Andrea Armstrong, The Past and Future of the C

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 

JOURNAL OF INTERNATIONAL LAW 516 (2004), also available at 2004 PROCEEDIN

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 

28. Wikipedia, Afghanistan, http://en.wikipedia.org/wiki/Afghanistan (last visi

2008).

29. Id.

30. ABC News/BBC World Service Poll, Afghanistan: Where Things Stand, D

available at http://abcnews.go.com/images/politics/afghanistan_poll_061205.pdf.

31. Carlotta Gall, Karzai Threatens to Send Soldiers to Pakistan, NEW YORK TIM

2008, at A6.

32. Id.

33. Afghan President: I’ll Send Troops to Pakistan, THE ASSOCIATED PRESS, Ju

available at http://www.foxnews.com/story/0,2933,367184,00.html.

34. Id.

35. Id.

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37. Id.

38. Id.

39. Statement of Barack Obama, available at http://factcheck.barackobama.com

2008/06/19/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).

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PART II

THE LEGAL BASIS FOR

MILITARY OPERATIONS

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IV

Afghanistan: Hard Choices and the

Future of International Law

John F. Murphy*

As I began my work on this article, the news out of, and the co

about, Afghanistan was grim. For example, a United Nations hum

team has reportedly found “convincing evidence” that ninety civilians, 

sixty children, were killed in airstrikes on a village in western Afghan

cording to a Time magazine article:

There has been a dramatic series of recent attacks by the Taliban: a mass assau

freed hundreds of prisoners, and a suicide bombing outside the Indian Emb

July 7 killed 40 and injured over 100. Many of these assaults are planned and su

from safe havens across the border in the tribal areas of Pakistan. Western casu

climbing; the last two months exceeded the monthly death toll in Iraq. On July 

U.S. soldiers were killed when Taliban fighters swarmed over their base in the 

province of Kunar—the worst attack in three years.2

In response to the Taliban attacks from the tribal areas of Pakistan

George W. Bush has reportedly authorized attacks by US special operat

against the Taliban in Pakistan.3 This in turn has precipitated a strong prote

newly elected Pakistani government of Asif Ali Zardari, including a promi

stan’s top army officer to defend the country’s sovereignty “at all costs.”4

* Professor of Law, Villanova University School of Law.

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There are also recent claims that Afghanistan has become a 

narcoS

cording to these claims, Hamid Karzai, the President of Afghanistan

Afghan government are deeply involved in

protecting the opium trade—by shielding it from American-designed policies. 

is true that Karzai’s Taliban enemies finance themselves from the drug trad

many of his supporters. At the same time, some of our NATO allies have res

anti-opium offensive, as has our own Defense Department, which tend

counternarcotics as other people’s business to be settled once the war-fighting 

The trouble is that the fighting is unlikely to end as long as the Taliban can 

themselves through drugs—and as long as the Kabul government is depen

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 

diplomat with substantial experience in Afghanistan that Afghanistan 

worst shape since 2001,”7 it seems clear that the United States and its alli

rently facing serious challenges in Afghanistan. It is also clear that many o

lenges raised by developments in Afghanistan constitute major cha

international law and international institutions. The thesis of this art

these challenges will require the United States and other members of 

community to make hard choices that will significantly affect the future o

tional law.

I will begin with a discussion of the backdrop to the current crisis in 

stan, starting with the events that led to the invasion by US and allied 

2001. In this section, as well as in subsequent sections of this article, the fo

marily, but by no means exclusively, on issues of the jus ad bellum, the la

to the use of armed force; the jus in bello, the law regulating the way the ar

is employed, i.e., the law of armed conflict; and international human ri

also explore some issues of governance, the roles of the United Nations a

problems created by the use of the tribal areas in Pakistan by the Talib

Qaeda as a safe haven, and the impact on Afghanistan of the current unst

ical situation in Pakistan.

The Backdrop

It may come as a surprise to some in light of the highly negative images o

stan created by the reign of the Taliban that Afghanistan enjoyed substa

ods of stability and enlightened governance.8 The period of stability b

King Amanullah Khan (1919–29) launched attacks on British forces in 

stan shortly after taking power and won complete independence from 

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reality established by the Treaty of Rawalpindi on August 8, 1919. R

Khan was considered a secular modernizer presiding over a governmen

all ethnic minorities participated. He was succeeded by King Mohamm

Shah (1929–33), and then by King Mohammad Zahir Shah. “Zahir Sh

(1933–73) is remembered fondly by many older Afghans for promulgat

stitution in 1964 that established a national legislature and promoting fre

women, including freeing them from covering their face and hair.”9 

however, what was possibly a fatal mistake when he entered into a signifi

ical and purchase relationship with the Soviet Union.

In the 1970s, Afghanistan slid into instability when the diametricall

Communist Party and Islamic movements grew in strength. As he was 

medical treatment in Italy, Zahir Shah was overthrown by his cousin, M

Daoud, a military leader who established a dictatorship with strong Stat

ment in the economy. The Communist Party overthrew Daoud in 1978, 

Mohammad Taraki, who was displaced a year later by Hafizullah Amin, 

rival faction. They tried to impose radical socialist change, in part by red

land and bringing more women into government, sparking rebellion 

parties opposed to such moves. On December 27, 1979, the Soviet U

troops into Afghanistan to prevent a seizure of power by the Islami

known as the mujahedin (Islamic fighters). During their invasion, the 

placed Hafizullah Amin with an ally, Babrak Karmal.

The Soviet occupation forces failed in their attempts to pacify the c

major reason for this failure was that the mujahedin benefitted from U

and assistance, provided by the US Central Intelligence Agency (CIA) in 

tion with Pakistan’s Inter-Services Intelligence directorate (ISI). Especi

in combat were portable shoulder-fired anti-aircraft systems called “

which proved highly effective against Soviet aircraft. Also useful to the 

was a large network of natural and man-made tunnels and caves throu

ghanistan, in which they hid and stored weaponry.

As the Soviet losses mounted, Soviet domestic opinion turned again

In 1986, after Mikhail Gorbachev came into power, the Soviets replac

with the director of Afghan intelligence, Najibullah Ahmedzai (known 

name). On April 14, 1988, Gorbachev agreed to a UN-brokered ac

Geneva Accords) requiring the Soviet Union to withdraw. The withd

completed by February 15, 1989, leaving in place the weak Najibullah go

On September 13, 1991, the Russian and US governments agreed to a cut

itary aid to the Afghan combatants. With Soviet backing withdrawn, N

position became untenable. His government fell, and the mujahedin reg

into power on April 18, 1992.

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There were major differences among the mujahedin factions, howeve

war ensued (1992–96). Four years of civil war led to increased suppo

Taliban as a movement that could deliver Afghanistan from the faction

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 

support as it imposed strict adherence to Islamic customs in areas it cont

employed harsh punishments, including summary executions. The Talib

rized its “Ministry for the Promotion of Virtue and the Suppression of V

physical punishments to enforce strict Islamic practices, including bans 

sion, Western music and dancing. It prohibited women from attending 

working outside the home except in health care, and it publicly execu

women for adultery. In March 2001, the Taliban committed the act that 

most international condemnation: it blew up two large statues carved 

above Bamiyan city that were widely recognized as works of art, as repre

of idolatry.

The Taliban’s hosting of al Qaeda’s leaders increasingly concerned th

administration. In April 1998, then–US Ambassador to the United N

Richardson visited Afghanistan and asked the Taliban to hand over bin L

the Taliban refused to do so. After the August 7, 1998 al Qaeda bombings 

bassies in Kenya and Tanzania, the Clinton administration increased th

on the Taliban, imposing US sanctions and gaining adoption of UN sa

well. On August 20, 1998, the United States fired cruise missiles at allege

training camps in eastern Afghanistan but failed to hit bin Laden. Accor

ports, Clinton administration officials said “they did not try to oust th

from power with US military force because domestic US support for t

was then lacking and the Taliban’s opponents were too weak and did no

ily hold US values.”11

For its part, the George W. Bush administration initially largely con

Clinton administration’s policy toward Afghanistan—applying econom

litical pressure while retaining dialogue with the Taliban, and refraining 

viding military assistance to the Northern Alliance, the primary oppon

Taliban. Its major deviation from the Clinton administration’s policy wa

sify talks with Pakistan in an effort to end its support of the Taliban.

Although it was fighting with some Iranian, Russian and Indian fin

military support, the Northern Alliance continued to lose ground to the T

ter it lost Kabul in 1996. By the time of the September 11 attacks, the Ta

trolled at least 75 percent of the country. The Alliance suffered a major 

September 9, 2001, two days before the September 11 attacks, when Ah

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Masud, the leader of the Northern Alliance and a highly respected milit

gist, was assassinated by alleged al Qaeda suicide bombers posing as jou

The September 11 Attacks and Operation Enduring Freedom

After the September 11, 2001 attacks, the policy of the Bush administrati

Afghanistan changed dramatically: it decided to overthrow the Taliban b

force when it refused to surrender bin Laden to the United States. Pr

United States taking military action against Afghanistan, the UN Securi

adopted two resolutions: Resolution 136812 and Resolution 1373.13 In t

ble of Resolution 1368 the Security Council recognizes “the inherent rig

vidual or collective self-defense in accordance with the Charter” and 

operative paragraph its determination that such acts (i.e., the terrorist 

September 11) are “a threat to international peace and security.” In its fi

tive paragraph the Council “expresses its readiness to take all necessary s

spond to the terrorist attacks of 11 September 2001 . . . .” Declaring the S

11 attacks as a threat to international peace and security brings them 

scope of Chapter VII of the UN Charter and acts as a possible predicate to 

forcement action. Expressing its willingness to “take all necessary steps to 

to the terrorist attacks implies that the Council might in the future, if nec

tablish a peace enforcement force or authorize the use of force by memb

Recognizing that the inherent right of individual or collective self-defen

to the September 11 attacks appears at first blush to be mere surplusag

significance for two reasons. First, under Article 51 of the UN Charter, t

individual or collective self-defense is only an interim right—“until th

Council has taken measures necessary to maintain international peace 

rity.” The express recognition of the right in this instance arguably impli

Council has no intention to intervene in such a way as to suspend the r

would, of course, face a certain veto by the United States should it attemp

Second, there are those who argue that the right of individual or colle

defense applies only to an “armed attack” by a State and not to armed 

non-State actors. To the contrary it has been argued that in Resolution 13

curity Council has implicitly recognized that the right of individual or 

self-defense applies equally to attacks by non-State actors and attacks by 

In the preamble of Resolution 1373, the Security Council reaffirms R

1368 and “its unequivocal condemnation” of the 9/11 terrorist attacks, it

nation that the attacks constituted a threat to international peace and se

inherent right of individual and collective self-defense, and “the need to 

all means, in accordance with the Charter of the United Nations, 

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international peace and security caused by terrorist acts.

In the rest of 

mark Resolution, however, the Council shifted its focus away from the 9

and Afghanistan to actions that States must take to “prevent and supp

nancing of terrorist acts,” a subject outside the scope of this article.

Major combat in Afghanistan began on October 7, 2001. The cam

given the name “Operation Enduring Freedom.”17 Even before Presid

September 20, 2001 address to a joint session of Congress, in which he iss

timatum to the Taliban that it deliver to US authorities all the leaders o

“who hide in your land” or “share in their fate,”18 the United States ha

into extensive diplomatic negotiations with its allies, seeking their und

of, and ideally cooperation for, a military response. A key breakthrough 

then-president General Pervez Musharraf of Pakistan. Although Pakista

gence services had supported the Taliban in its rise to power and Islamic 

Pakistan objected to cooperation with the United States, Musharraf prom

demned the attacks and the Taliban for harboring bin Laden, and agree

the United States and its allies to use Pakistani airspace and eventually air

former Soviet republics of Uzbekistan, Kyrgyzstan, and Tajikistan, whic

ternal threats from al Qaeda–linked Islamist movements, agreed to p

forces to operate from bases in their territory in exchange for increased U

closer political and security ties. Although several European States offer

vide military support, the United States decided to rely primarily on its o

and those of the Northern Alliance, with limited military assistance fro

Canadian and Australian troops.

Combat operations in Afghanistan initially consisted primarily of US 

on Taliban and al Qaeda forces, aided by joint efforts between small num

proximately one thousand) of US special operations forces and the Nor

ance and Pashtun anti-Taliban forces. At the height of the fighting i

through December 2001, some US ground units (about thirteen hundred 

moved into Afghanistan to pressure the Taliban around Kandahar, but 

few pitched battles between US and Taliban forces. Most of the ground c

between the Taliban and its Afghan opponents.19

A key turning point in the conflict came when Taliban forces lost 

Sharif on November 9, 2001. The Taliban regime unraveled rapidly 

Northern Alliance forces entered Kabul, the capital of Afghanistan, on N

12, 2001, to “general jubilation.”20 The Taliban subsequently lost the 

east to pro-US Pashtun leaders, such as Hamid Karzai, the current presid

ghanistan. The end of the Taliban regime is generally dated as Decemb

the Taliban surrendered Kandahar, leaving it under tribal law admin

Pashtun leaders.21

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Some of the remaining Taliban and al Qaeda troops retreated to tu

plexes built to house mujahedin fighting the Soviets, such as at Tora Bor

Pakistani border. On December 16, supported by US precision bomb

forces the Americans dubbed the “Eastern Alliance” captured Tora B

was no follow-up, however, by the Eastern Alliance and insufficient U

forces, to prevent hundreds of al Qaeda members, possibly including b

from escaping into the relatively lawless tribal regions of Pakistan. A late

an al Qaeda cave complex in February and March 2002 was more succe

time, over one thousand US infantrymen led the assault, called Opera

conda, against regrouping al Qaeda in the Shah-i-kot valley, and succeed

venting most of the al Qaeda fighters from escaping.

Thereafter, remnants of al Qaeda mostly scattered to tribal areas of Pa

Afghanistan. Cooperative combat operations between the US and allied 

some local warlords continued, but these were small in comparison wit

of Operation Anaconda or the campaign at Tora Bora. On May 1, 20

Secretary of Defense Rumsfeld announced an end to “major combat ope

Before turning to the post-conflict efforts toward stabilization and re

tion, let us consider a few jus ad bellum and jus in bello issues that arose 

during the major combat operations in Afghanistan. We have already b

sidered the claim that the United States and its allies violated the jus ad 

cause Article 51 of the UN Charter does not permit the use of armed fo

defense against an armed attack by non-State actors.23 Yoram Dinstein 

that, “[i]n the past, many commentators admittedly argued that the e

‘armed attack’ in Article 51 does not apply to every armed attack, ‘regard

source,’ but only to an armed attack by another State.”24 Dinstein goes o

however, that given the response of the international community to 9/1

gering doubts on this issue have been dispelled.” The responses of the int

community to the 9/11 events cited by Dinstein include Security Counc

tions 1368 and 1373; the invocation of Article 5 of the NATO Treaty, w

vides that an armed attack against one or more of the Allies in Europe 

America “shall be considered an attack against them all,” by the Atlantic 

and a resolution by the Ministers of Foreign Affairs, acting as an Organ o

tation, in application of the 1947 Inter-American Treaty of Reciprocal A

stating that “these terrorist attacks against the United States of America 

against all American States.”26

Assuming that the shocking nature of the attacks of 9/11, and the int

community’s response to them, dispels any doubts that they constituted 

attack within the scope of Article 51, it does not necessarily follow that 

armed force by terrorists constitutes such an “armed attack.” This 

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debatable issue, and we shall return to it later in this article when we co

legality of the US use of armed force against the Taliban and al Qaeda in P

The increased use of high-technology warfare in Afghanistan, especia

of so-called “smart bombs,” guided by Global Positioning System sat

sulted in relatively low civilian casualties. Nonetheless, there were som

made,28 and the US military was criticized for some operations that resu

vilian casualties.29 As noted at the beginning of this article, the issue of al

cessive civilian casualties has become especially acute recently, and we w

to it later.

Another self-defense issue arising out of Operation Enduring F

whether the right of self-defense encompasses “regime change” or the r

the government in power, in this case the Taliban. In the case of the Pe

conflict of 1991 against Iraq, there was no “march to Bagdad” to re

Saddam Hussein regime. Rather, President George H.W. Bush made th

decision to stop the attack in Iraq well short of an invasion of Bagdad. I

able whether Security Council Resolution 678, which authorized membe

use armed force against Iraq if it failed to comply fully with its resolution

fore January 15, 1991, could have been interpreted to allow the remo

Saddam Hussein regime.30

With respect to Operation Enduring Freedom, some have questione

self-defense under Article 51 of the UN Charter permitted the remo

Taliban from power.31 Arguably, while it was permissible for Enduring F

eliminate the military capacity of the Taliban and al Qaeda, in order to 

future attack by them, “[e]liminating the whole government structure 

the Taliban, as a war aim, was beyond necessary self-defense” and there

proportionate use of force.32

Interestingly, US Secretary of State Colin Powell reportedly indicate

United States would not seek to eliminate the Taliban entirely33 and that 

Alliance forces had promised US officials they would not enter Kabu

these circumstances, the United States “may not be responsible for a d

tionate use of force.”35

From this account, however, it appears that, although the United Stat

have intended to eliminate the Taliban entirely, because it hoped to attra

ate Taliban to the US side, it did intend to replace the radical Taliban lead

ensure that the new government of Afghanistan would not follow the 

these Taliban leaders. It is questionable, at best, whether this goal would 

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” durin

election campaign, it was immediately apparent to the Bush administr

nation building was urgently required in Afghanistan. Moreover, despi

trust of the United Nations by many in the administration, President B

on the United Nations to help rebuild a post-war Afghanistan. During 

after playing a major role in ending the Soviet occupation, the United N

ployed a succession of mediators in an effort to achieve a government se

traditional assembly, or loya jirga.36 These efforts were unsuccessful, ho

cause UN-mediated cease-fires between warring factions always bro

Non-UN initiatives also made little progress, particularly the “Six Plus T

tilateral contact group, which began meeting in 1997.37

Although he had resigned in frustration in 1999, immediately afte

tember 11, 2001 attacks, former UN mediator Lakhdar Brahimi wa

back. On November 14, 2001, the Security Council adopted Resoluti

which called for a “central” role for the United Nations in establishin

tional administration and invited member States to send peacekeepin

promote stability and the delivery of aid. After the fall of Kabul in Novem

the United Nations invited major Afghan factions, most prominently the 

Alliance and that of the former king—but not the Taliban—to a con

Bonn, Germany.39

On December 5, 2001, the factions signed the Bonn Agreement.40 

dorsed by the Security Council on December 6, 2001.41 Ironically, the A

was reportedly forged with substantial Iranian diplomatic help becaus

support for the Northern Alliance. According to Katzman, the Agreeme

other things:

• formed the interim administration headed by Hamid Karzai.

• authorized an international peacekeeping force to maintain s

Kabul and directed Northern Alliance forces to withdraw from th

(Security Council Resolution 1386 (December 20, 2001) provided form

Council authorization for the international peacekeeping force.)

• referred to the need to cooperate with the international comm

counter-narcotics, crime and terrorism.

• applied the Afghan Constitution of 1964 until a permanent co

could be drafted.42

Inside the United Nations, there was strong sentiment in favor of dem

forms. During the 1990s, successive UN resolutions on Afghanistan 

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broadbased, representative government with a commitment to hum

and, increasingly, women’s rights.”43 This sentiment, which was stro

ported by the US government, is reflected in the Bonn Agreement. Yet th

tional commitment to democratization was potentially a liability, as wel

by one commentator:

The post-Taliban democratization process was from the outset more 

internationalized than other reforms in Afghan history except un

communists. Reforms during the monarchy in the 1920s were certainly influe

foreign ideas, but apart from a small number of foreign advisors they were ve

an Afghan operation. The same applied to Zahir Shah’s democratic reforms 

This time, by contrast, the UN launched a visibly internationalized democra

process. Foreign experts virtually flooded into the country to help implem

transition schedule of the Bonn Agreement. The visibility of the foreign han

reforms was exemplified during the 2005 elections, when the UN had 40 

ballot papers printed in Europe and Australia and flown into Afghanist

foreign role was accentuated by the widespread presence of international con

in the new administration as a whole. While many experts were Afghans re

from exile, often temporarily, they worked for international salaries. This h

the distinction between “the locals” (on local salary) and “the international

international salaries).44

This anti-foreigner sentiment continued and intensified to the point Afg

referred to foreign non-governmental organizations (NGOs) as “cows that 

own milk.”45 Perhaps the most important policy impact of foreign involvem

ghanistan was “the extreme dependence of the emerging Afghan state on in

assistance.”46 The size of the US economic and military contribution in part

it paramount influence. By 2004, US aid accounted for over half of all recor

assistance to the government budget. As a result of its large financial contrib

extensive presence in Afghanistan, the United States “effectively underwro

survival of the government, as President Hamid Karzai publicly admitted, a

an implicit veto over all issues it considered important.”47

President Karzai exercised decisive influence over the process of prom

new constitution. In accordance with established tradition, a small com

experts prepared a first draft, which was reviewed by a larger commission

step would be the calling of a loya jirga to deliberate and approve a text. D

early drafting process, a critical issue emerged as to the form the go

should take: a purely presidential system or a mixed structure with a pri

ter. The debate divided along ethnic lines. The non-Pushtun minorities, 

the Tajik, Uzbek, Hazara, Turkmen and Qizilbash, strongly favored the t

position of a prime minister as a way to counter the influence of 

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president. They, therefore, wanted a power

sharing mechanism and 

mixed system with a president and a prime minister, the latter prefer

elected by the parliament. The Pashtuns argued, however, that Afghanist

a strong executive in order to overcome the catastrophic divisions of th

to provide a unifying leadership for the future. Hence, in their view, a pu

dential system was best. After a period of time, the drafting process wa

from the commission and “proceeded in a ‘secretive and unaccountabl

in the office of Karzai.”48 When the document was made public a couple 

later, in November 2003, the position of prime minister had been elim

stead, two vice presidents selected by the president had been added.49 Ka

cess in overcoming a “varied and collectively powerful opposition d

constitutional process derived primarily from his relationship with t

States,” but “the parliamentary issue left a deep scar among the minorit

Speaking of parliament, a controversial issue arose regarding the ele

tem to be employed to select members of the parliament for Afghanistan

political parties were allowed—about sixty were registered with the M

Justice—the government chose a system that prevented political parties 

mally fielding candidates. The election system chosen is called the si

transferable vote (SNTV). In the 2005 elections its use meant that vo

choose among individual candidates in multi-member constituencies, 

were no party lists and no party identification of candidates on the ballo

formal party affiliations allowed, there was no proportional representatio

ing to party strength. As one commentator noted:

As an institution of political democracy, the SNTV was deeply flawed. 

electoral recognition of political parties, the parliament was likely to be fragme

weak, with little capacity to aggregate local interests, address national-leve

provide clear lines of accountability to the voters and thus, in the end, check th

of the executive branch. . . . The limitations of a non-party election syste

common knowledge. Most of the diplomatic community in Afghanistan, 

mission in Kabul (UNAMA), and virtually all resident international experts 

society groups warned against adopting the SNTV. . . . Yet Karzai resisted, an

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

2005.51

The public argument made in favor of the SNTV by Karzai was that A

had historically had many bad experiences with political parties. The C

Party had left a legacy of extreme violence, as had the civil war among th

factions during the early 1990s. According to Karzai, an election sy

strengthened the role of political parties would likely institutional

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divisions and work against national reconciliation and unity. Therefo

preferable to have an election system where voters would vote for i

rather than parties. Karzai’s ability to have the SNTV adopted was repo

pendent upon strong US support, including a brusque intervention by 

Ambassador Zalmay Khalilzad at a meeting with UN officials and dip

Kabul, who declared that “he had just spoken to President Bush, who sai

the choice. SNTV is going to happen.’”52 Arguably, “[t]he institutiona

ment suited Washington’s primary policy objective in Afghanistan, whi

to promote political democracy but to eliminate terrorists and Al Qaida

In any event, the process resulted in the election of a substantial num

leged war criminals and drug traffickers in the parliament, which under

legitimacy of the democratic system. Moreover, as previously noted, th

budget was heavily dependent upon foreign funding. In 2005, around 90 

the total budget was based on foreign receipts. “Only the operating bud

represented about one-fourth of the total, was managed by the govern

rest was the development, or ‘external’ budget, which the donors contro

directly. As a result, the power of the parliament was extremely limited w

to both taxation and spending.”54

Not surprisingly, relations between Karzai and parliament have often 

tentious. Nonetheless, they are both trying to improve and expand g

throughout the country. In testimony before the Senate Armed Services 

tee on February 28, 2008, Director of National Intelligence Mike McCon

that the Karzai government controls only 30 percent of the country, 

Taliban controls 10 percent, and tribes and local groups control the rem

US and NATO officials in Kabul, however, told CBS in March 2008 tha

agreed with this assessment because it is too pessimistic.56 There is a deb

ghanistan over whether the focus should continue to be on strength

central government—the approach favored by the Karzai governmen

United States and most of its partners—or to promote local solutions 

and governance problems, an approach some international partners, suc

Britain, would like to explore.

Despite its relatively weak position, parliament has asserted itself on 

casions. For example, it exercised its prerogatives in the process of con

postelection cabinet and in forcing Karzai to remove several prominent 

tives from the Supreme Court and replacing them with jurists more expe

modern jurisprudence.57 In mid-2007, parliament promulgated a law 

amnesty to commanders who fought in the various Afghan wars since 

invasion in an effort to improve the chances for greater stability as Afgh

tempts to rebuild itself as a modern nation. In the course of deba

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legislation, the law was rewritten to give victims the right to bring accu

past abuses forward. Its status, however, is unclear because, although 

not veto the legislation, neither did he sign it.

In spite of the tensions between them, the executive and the parliamen

operated with respect to less contentious issues, such as the adoption of a 

a mines law, a law on economic cooperatives and a convention on tobacc

The legislature also confirmed Karzai nominees for a new Minister of R

fairs, the head of the Central Bank and the final justice to complete the 

tion of the Supreme Court.58

The United Nations has been extensively involved in the post-war st

and reconstruction effort in Afghanistan. Some of the debate over the 

nant role of the United States and its partners was reflected in a proposal 

new position of “super envoy” that would represent the United Nations

pean Union and NATO in Afghanistan. The proposal would subsume 

the head of the UN Assistance Mission in Afghanistan (UNAMA). In Jan

with US support, UN Secretary-General Ban Ki-moon tentatively appo

ish diplomat Paddy Ashdown to this “super envoy” position, but Karz

the appointment, reportedly over concerns about the scope of the autho

Ashdown, especially whether it might dilute the US role in Afghanistan. 

also been speculation that Karzai wished to show his independence from 

national community. Ashdown withdrew his name on January 28, 2008

On March 20, 2008, the Security Council adopted Resolution 1608,60 

tended UNAMA’s mandate for another year and expanded its authority 

some of the “super envoy” concept. UNAMA coordinates the join

international community coordination body called the Joint Coordin

Monitoring Board, and Resolution 1806 directs UNAMA to coordinate 

of international donors and strengthen cooperation between the int

peacekeeping force (ISAF, International Security Assistance Force; see b

the Afghan government. The head of UNAMA, as of March 2008, is N

diplomat Kai Eide. In April 2008, in Washington, D.C., Eide stated that 

capacity building resources are needed and that some efforts by interna

nors are redundant or tied to purchases by Western countries.61

There is little doubt that inadequate resources, both for security and re

tion purposes, have been and remain a primary problem in Afghanistan. 

lem, moreover, is lack of both financial resources and human capital in 

that is one of the poorest on earth, with a literacy rate estimated at only 3

The recent deterioration in the security situation is especially disquietin

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Post

War Security Operations and Force Capacity Building

As noted previously, after the negotiation of the Bonn Agreement, the U

Council adopted Resolution 1386 on December 20, 2001, which establi

to aid the Afghan Interim Authority in maintaining peace and security 

and its surrounding areas, “so that the Afghan Interim Authority as well 

sonnel of the United Nations can operate in a secure environment.”62 T

the Resolution authorized ISAF to take “all necessary measures” to fulfill 

keeping mission.63 Everyone recognized that “all necessary measures” 

clude the use of force. The Resolution also called upon member 

contribute personnel, equipment and other resources to the [ISAF],”64 

on Member States participating in the [ISAF] to provide assistance t

Afghan Interim Authority in the establishment and training of new Afg

rity and armed forces.”65

It is important to note that Resolution 1386 envisaged that ISAF w

peacekeeping force in the classic sense. Although ISAF was authorized to 

essary measures” to fulfill its mandate, which implied that force might 

used, the initial limitation of its operations to Kabul and its surroundin

dicated that the use of force contemplated would be in the nature of actio

defense, a use of force characteristic of peacekeeping operations. There 

guage in the Resolution that implies the use of force to enforce peace. Rat

enforcement responsibility lay with separate US forces who sought to t

Taliban and al Qaeda remnants, which were largely located in the sou

eastern portions of the country near the border with Pakistan.

The composition of ISAF originally consisted of approximately fort

dred troops from 122 different States.66 The leadership of ISAF initia

among the Western nations, but NATO took over leadership of ISAF 

2003. This was NATO’s first and so far only mission outside the Euro-At

in its history. At the time ISAF’s primary goals were “to assist in maintai

rity, develop Afghan national security structures, assist the nation’s recon

and aid the training of Afghan security forces.”67

Although Resolution 1386 initially limited ISAF to Kabul, its area of 

bility had been expanded to include about 50 percent of the country befo

2006, when it further extended its role to take over the lead military rol

troops in southern Afghanistan. In other words, ISAF had evolved from 

keeping force to one clearly involved in enforcing the peace against re

Taliban and al Qaeda forces. As one European official in NATO reporte

“When NATO agreed to expand its control to southern Afghanistan in 

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one really anticipated the difficulty in the fighting. Maybe we were in d

this has been a culture shock for a lot of us.”68

For their part, US officials have been frustrated by what they perceive 

on the part of some NATO members to bear their fair share of the fightin

ample, the United States has been asking its NATO allies to provide mor

stabilize the military situation in Afghanistan but has discovered that “s

appear more eager to reduce their forces than to add to them.”69 US Se

Defense Robert Gates has credited the Netherlands, Britain, Australia an

with “doing their part in Afghanistan,” but indicated that other NATO 

have contributed far less.70 For its part, Canada threatened to withdraw 

southern province of Kandahar early next year (2009) unless other NA

tries agreed to send one thousand additional combat troops there, a thre

met when France agreed to contribute the extra troops.71 Tensions with

ance have also risen because of the unwillingness of some members, inclu

many, Italy and Spain, to send troops to the south of Afghanistan, where 

the fighting is taking place.72

Secretary Gates has recently emphasized “the direct threat posed to 

security by extremists in and around Afghanistan” in a speech reflectin

American concerns that weak public support risked undermining NATO

in the country.73 As evidence of increased danger to Europe from terror

Gates cited, among other things, the arrest of fourteen extremists in Barc

pected of planning attacks against public transport systems in Spain, 

France, Germany and Britain. On the reluctance of European States t

more troops to Afghanistan, or to allow those already there to move to 

and other areas where the fighting was most intense, Gates warned again

ance becoming a two-tiered coalition, of those willing to fight and those 

not. He reportedly added that “[s]uch a development, with all its implic

collective security, would effectively destroy the alliance.”74

The same European official who reported that NATO members suff

ture shock” when they realized how difficult fighting in southern A

would be, reportedly recognized the continuing frustration of America

when he said, “American officials were frustrated when the alliance h

troops in Afghanistan but only 8,000 troops in the volatile south, and th

unsatisfied with NATO’s 52,000 troops in Afghanistan and 22,000 in the 

Both Barack Obama and John McCain, the contenders in the 2008 p

elections, supported a troop “surge” in Afghanistan. Senator McCain 

moving troops from Iraq to Afghanistan, conditional on continued p

Iraq. Senator Obama’s proposal is much more radical; he argues that 

have sent the 2007 surge to Afghanistan, not Iraq, that Afghanistan is th

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front

and that we must rebuild Afghanistan from the bottom up alon

of the Marshall Plan.”76 Secretary of Defense Gates has also supported th

surge in Afghanistan. He has endorsed a $20 billion plan to increase su

the size of Afghanistan’s army, as well as the role and numbers of West

there to aid it.

Serious questions have been raised, however, about the validity of t

For example, although denying sanctuary for terrorists—in Afghanistan 

where—has been put forth as a rationale for increased troop strength, i

argued that “[a]ccomplishing it . . . requires neither the conquest of lar

of Afghan territory nor a troop surge there—nor even maintaining the n

troops NATO has in Afghanistan today. Counterterrorism is not abou

tion. It centers on combining intelligence with specialized military capa

Even if one maintains that counterterrorism in Afghanistan requires m

than suggested by the above argument, the question remains, how m

McNeill, the American general who was NATO’s top commander in A

until he left in June 2008, reportedly said that “according to current 

counterinsurgency doctrine, a successful occupation of Afghanistan

larger, more complex, more populous and very much less governable 

would require 400,000 troops.”78

Strictly speaking, NATO is not an occupying force in Afghanistan bec

was established by Security Council resolution and President Karzai ha

permission for its presence. As noted previously, however, the large num

eigners in Afghanistan has raised objections from the Afghans, who ha

standing distrust of foreigners. Tensions have been greatly exacerbated 

casualties caused by NATO bombing. Karzai has demanded an end to civ

alties. A surge of foreign troops along the lines suggested could greatly 

these objections and likely provoke a serious backlash.

One possible answer to this objection might be to concentrate greate

and resources on training an Afghan army and police. This has proven to 

cult goal to achieve. American commanders remain frustrated by NAT

to deploy the promised number of Operational Mentor and Liais

(OMLTs) (“Omelets” in NATO-speak). These are twelve- to ninete

training teams that serve as a vital link between forward-deployed Afg

and police units and ISAF support such as airpower, medical evacuatio

supply. This is a dangerous mission, as was demonstrated in June 2008, w

teen police trainers from the Security Transition Command were killed in 

was the worst month of the conflict for that command.79

As a consequence, some NATO States, in particular Germany, now re

low their OMLTs to accompany Afghan units into combat in the sou

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eastern parts of the country. Others have failed to field the training team

parently because of the financial cost. The result is a shortage of twenty m

teams and twenty-three thousand trainers.80 General John Craddock, N

preme allied commander in Afghanistan, has expressed his frustration at 

tion in vivid terms:

I’ve talked at every meeting of the North Atlantic Council [NATO’s governin

and at every foreign ministers council. At one [meeting] I brought a big cup and 

it “Contributions,” and I reminded all the defense chiefs that their respective 

state agreed to meet this requirement, so where is your bid? And I didn’t get a

So yeah, I’m frustrated.81

Building a quality police force in Afghanistan has so far proven to be 

impossible because of pervasive corruption. The current seventy-nine 

members of Afghanistan’s national police force are “better known as s

artists than law enforcers.”82 Major General Robert Cone, who is in cha

mission to train the Afghan army and national police, points out: “The p

endemic corruption in a country that had virtually no economy for 30 y

than narco-trafficking, so the way cops made money was to stop vehicle

points and demand money.”83 Many of Afghanistan’s governors are fo

lords who put their cronies on the police rolls. As a result, they also are lu

police reforms. According to Cone, “[i]f you gave them truth serum an

they wanted a good, non-corrupt police force, probably only 30 per

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 w

two years. The toll among foreign troops in Afghanistan has reached a 

with more than 230 deaths so far in 2008 among more than twenty NAT

contributing troops. American commanders have said that the level of 

up 30 percent in the past year. In July 2008, for the first time, American m

sualties in Afghanistan exceeded those in Iraq.85 A major reason for the i

casualties in Afghanistan has been the ability of the Taliban and al Qaed

the border between Pakistan and Afghanistan, launch an attack in Afgha

return to their safe haven in the tribal areas of Pakistan. After months o

cism, behind the scenes and in public, against Pakistan for not doing 

prevent such attacks, the United States launched drone strikes against tar

kistan and a raid by special operations forces in Pakistan’s tribal areas. P

acted forcefully to these attacks and the risk grew of an armed con

between Pakistani and US forces. But as the Taliban went deeper into 

proper and carried out major terrorist attacks like the Marriot Hotel b

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Islamabad on September 20, 2008, Pakistan reacted and escalated its 

Taliban strongholds like Swat, a settled area of the North-West Frontie

that was once a middle class resort.86 Fighting has been fierce, and success 

kistani effort is by no means assured.

For his part, President Karzai has repeatedly sought the intervent

Saudi royal family to bring the Taliban to peace negotiations, but witho

Karzai has reportedly imposed conditions on bringing the Taliban int

ernment. These include a renunciation of violence, acceptance of Afgh

democratic constitution and a repudiation of al Qaeda—all terms th

leadership has rejected.87

As noted earlier, there are recent claims that Afghanistan has become 

State” and that Hamid Karzai and his government are deeply involved i

ing the opium trade and using proceeds from it to maintain themselves i

At this writing, there are further reports that President Karzai’s brothe

Wali Karzai, is heavily involved in the heroin trade in Afghanistan and 

dent Karzai’s government is protecting him. American officials in Kab

edly “fear that perceptions that the Afghan president might be prot

brother are damaging his credibility and undermining efforts by the Un

to buttress his government, which has been under siege from rivals and 

insurgency fueled by drug money.”89

I will now turn to a consideration of the international law issues rai

current situations in Afghanistan and Pakistan, the hard choices faced b

makers attempting to resolve these issues, and possible impacts on the fu

ternational law of these choices.

Afghanistan, Pakistan, Hard Choices and the Future of Internation

A major problem that decision makers face in dealing with the current

factory situations in Afghanistan and Pakistan is that both nations are 

States with governments selected in free elections. Although the United 

other foreign governments involved in Afghanistan can urge that Presid

stop protecting drug lords and narco-farmers, they cannot order him 

Much less can they decide to remove him and his government from pow

sure, they could, as suggested by Thomas Schweich, a former senior U

ment of State counter-narcotics official, “inform President Karzai tha

stop protecting drug lords or he will lose US support.”90 The wisdom of th

mendation, however, is highly questionable. It would seem to call for 

option” in a situation not calling for it. As one commentator has noted

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[p] pg 

issue, and there is even less reason it should be a major international one. In a

our demand for heroin is not the fault of the Afghan peasants who would 

financial hit for our interdiction efforts. Liberal democracies cann

counterinsurgencies against the wills of local populations, and denying a livel

the poor farmers of southern and eastern Afghanistan is no way to persuade Af

our side.91

Tensions between the Karzai government and the US government ov

casualties allegedly caused by airstrikes raise somewhat similar prob

though the law of armed conflict clearly prohibits an intentional dir

against the civilian population as such, and indeed categorizes it as a w

“there can be no assurance that attacks against combatants and other m

jectives will not result in civilian casualties in or near such military objec

the latter case, the civilian casualties are known as “collateral damage” a

give rise to accountability of the attacker. Nonetheless, as the head of the 

government of Afghanistan, President Karzai can order the complete ce

airstrikes (he has done so on occasion), and, as a matter of internation

United States and its allies are bound to comply—even though such airst

crucially important factor in the battle against the Taliban, and the Tal

larly intermingles among the civilian population in order to use them 

shields (itself a violation of the law of armed conflict) and then uses civili

ties as part of its war propaganda effort.94 In short, the Taliban has bee

fully engaging in so-called “lawfare,” using false accusations of violation

in bello in order to win public opinion to its side.

In a recent interview, Admiral Michael Mullen, Chairman of the US Jo

of Staff and the nation’s highest-ranking military officer, has identified 

lem of how to deal with attacks by the Taliban and al Qaeda across the b

tween Pakistan and Afghanistan, and their use of the tribal areas of Pa

safe haven, as the gravest he faces.95 Although he suggests that more mili

are needed, he states, “It’s not just about [sending] additional combat fo

ghanistan.” Rather, he notes, “Afghanistan has a weak government and e

huge opium trade, and an inadequate army. If those problems aren’t 

more troops won’t help.”

There is a serious question, however, whether these problems are s

able. As raised starkly by one commentator:

But what are the real prospects for turning fractious, impoverished Afghanistan 

orderly and prosperous nation and a potential ally of the United States? W

American interests are being insufficiently advanced or defended in its remot

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y , y 

acceptable price? The answers to these questions put the wisdom of an Afgh

into great question. . . . The invasion of Afghanistan was a great tactical success 

correct strategic move. Yet since then it seems as if the United States has been 

turn the conflict into the Vietnam War of the early 21st century. Escal

Afghanistan to “must-win” status means, according to General McNeil’s e

deploying three times as many troops as were sent to Iraq at the height of the 

Americans really believe—as Senator Obama in particular argues—that Afgha

the right war and a place appropriate for Iraq-style nation-building, then th

understand both the cost involved and the remote likelihood of success.96

At this writing, Britain has reportedly backed a statement by a senio

commander that the war against the Taliban cannot be won.97 According 

port, “the UK’s ministry of defense ‘did not have a problem’ with warni

public not to expect a ‘decisive military victory’ and to prepare instead f

ble deal with the Taliban.”98 For its part, however, the United States i

about any idea of negotiating with the Taliban. When asked about the Br

mander’s statement, a White House spokesman reportedly said: “We pla

ning in Afghanistan. It’s going to be tough and going to take some time, b

eventually succeed.”99

Even if there should be an eventual agreement that success in Afghan

not require a complete military victory, US Joint Chiefs Chairman 

Mullen is surely right in suggesting that the problem along the Afghan

border is the one to be most concerned about for the near future and wil

and center on the agenda of the next president.”100 As noted earlier, US 

tion forces have been frustrated by Pakistan’s failure to prevent Talib

Qaeda forces from crossing the border to launch attacks in Afghanistan 

recently attacked targets in the tribal areas of Pakistan either by drones 

cial operations forces. Pakistan has protested vociferously and threatene

action against coalition forces. Most recently, however, Pakistan has 

Taliban and al Qaeda attacks in Pakistan by intensifying military acti

them in Pakistan.101

A major issue arising out of this situation is whether US and coalition 

olated international law restraints on the use of force by launching their 

Pakistani territory. The answer to this question has to be a resounding 

As noted previously, with respect to the 9/11 attacks and the issue of wh

cle 51 of the UN Charter applies to armed attacks by non-State acto

Dinstein has concluded that “all lingering doubts on this issue have been 

as a result of the response of the international community to the shocki

of September 11.102 It is unclear, however, whether this conclusion wou

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cross

border attacks by terroristsor less pejoratively, irregular fo

non-State character—that do not have the extraordinary features of the 9

and the global response to them. Dinstein himself notes that there is co

scholarly comment in support of the proposition that there is no rig

defense under Article 51 against an armed attack by a non-State actor. Th

tion is also supported by the controversialstatement in the 2004 Internatio

of Justice’s Advisory Opinion on Legal Consequences of the Construction o

the Occupied Palestinian Territory.103 There the court summarily dismiss

claim that it was acting in self-defense against attacks by terrorist groups. 

Israel could not be acting in self-defense because Israel had not claimed th

rorist attacks at issue were imputable to a foreign State and because tho

were not transnational in nature, having occurred wholly within territory 

by Israel. The opinion has been heavily criticized,104 however, and the c

ably backed off its view in its 2005 case concerning Armed Activities on th

of the Congo, where the court stated that, given the circumstances of the 

was “no need to respond to the contentions of the Parties as to whether 

what conditions contemporary international law provides for a right of s

against large scale attacks by irregular forces.”105

Assuming arguendo that there is a right of self-defense against armed 

non-State actors, there is still the requirement that the use of force in se

be necessary for the object of defense and proportional to the injury thre

Although the drone attacks and special operations forces attack drew st

tests from the Pakistani government, they were arguably necessary in lig

stan’s failure to prevent cross-border attacks and proportional to the i

threatened. As noted by Admiral Mullen, there is no plan to invade Pakis

there is evidence of a favorable shift in the Pakistani military’s outlook 

rendous terrorist attacks on targets in its own country. He is also encour

tribal leader in Bajaur, a Taliban and al Qaeda stronghold along the b

mobilized several anti-Taliban fighters. At the same time he recognizes th

kistani military does not yet have the skills or the equipment it needs. I

be provided, there is hope that no further cross-border attacks by US and 

forces will be necessary.

Even a cursory review of the foregoing discussion leads to the unhapp

sion that efforts toward “nation building” in Afghanistan are going very 

hard choices will have to be made that will have a major impact on the fu

ternational law and international institutions. The first choice will h

whether having a “surge” in Afghanistan of approximately ten thousand 

good idea and will contribute to winning the war against the Taliban and 

Since both candidates in the US presidential election favor a surge, i

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probable that such a surge will take place. As noted, however, the Britis

ment believes the war is unwinnable in the sense of a decisive military v

favors instead President Karzai’s efforts to broker a peace settlemen

Taliban—efforts apparently opposed by the US government. Some c

gone much further and proposed a major drawdown of Western troops 

mum of perhaps twenty thousand. In their view, this number would be 

if coupled with an intelligence operation sufficient to collect the in

needed to allow special operations forces to eliminate terrorist threa

appear.108

It will also be necessary to decide whether, in light of considerable e

pervasive corruption in the Karzai government, and considering the co

and treasure already expended, the efforts toward nation building shou

tinued. On the topic of nation building in Afghanistan, James Kitfield 

tional Journal had the following to say:

The overwhelming theme of the Afghan nation-building at this time is a 

coordination and coherence. Everyone seems to be doing their own thing b

different and occasionally conflicting or at least clashing agendas. The critical 

who should be dealing directly with Taliban leaders in proposing reconciliat

what they can offer them to jump to the government’s side, is a case in point

pushed hard for the naming of a very high profile rep in Paddy Ashdown, pre

instill more coherence in the effort. President Karzai apparently viewed t

reproach and Ashdown as a potential competitor for influence, so he nixed the 

high profile UN “czar.” The hopes for Ashdown’s successor are more mod

everyone seems to think someone is still needed who can be a one-stop contact 

international aid operations. The US military commanders in Afghanistan, a

NATO counterparts, are very anxious that someone fill such a role so that the

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 

narcotics traffickers who are supporting the Taliban and al Qaeda in

General David D. McKiernan, the top American commander in Afghan

announced that ISAF forces will step up attacks on these drug lords and 

traffickers in situations where they are linked to the movement of weapo

vised explosives or foreign fighters into Afghanistan.110 American and N

cials have vigorously rejected the suggestions of some NGOs that int

security forces take an active role in eradicating the poppy crops, on t

that such decisions should be left to the Afghan government, which w

have to develop alternate livelihoods for the farmers. But General McK

proposed that perhaps this position should be reexamined because the f

ghanistan is now not only against the Taliban and al Qaeda, but also agai

100

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broad range of militant groups that are combined with the criminality

narco-trafficking system, with corruption, that form a threat and a ch

that great country.”111 The major problem with increasing the mission o

tary in this fashion is that there is substantial evidence that the Karzai go

and its supporters are also receiving funds from the narco-traffickers.

With respect to the problem of cross-border attacks from Pakistan, th

issue is whether the new Pakistani government will have the will and th

defeat the Taliban and al Qaeda forces in the tribal areas. General McK

reported that he is “cautiously optimistic” that a continuing assault by 

forces against militants in the tribal area of Bajaur could put a “dent in 

operations in the border region.” He also praised the appointment of the 

of Pakistan’s top spy organization, saying Lieutenant General Ahmed Sh

was likely to reform the agency, which in the past had “institutional and 

ties to the Taliban and other militant networks.”112

If, however, General McKiernan’s cautious optimism turns out to be m

and cross-border attacks by Taliban, al Qaeda and other militants becom

problem, then the choice facing US and coalition forces will be especiall

General John Craddock has acknowledged, insurgencies that enjoy un

sanctuary have rarely, if ever, been defeated.113

Similarly, General McKiernan, in addressing the question whether it 

to have a positive outcome to the Afghanistan campaign without res

problem of insurgent sanctuaries in Pakistan, has answered that “while I 

it will be impossible, it will be very, very difficult.”114 At the same time, M

has stated categorically that “[f]ailure is not an option in Afghanistan.”

the likelihood of US and NATO attacks on targets in Pakistan resum

these circumstances would be great. Moreover, although Robert Gat

fended earlier such attacks as justified under international law in order 

US troops in Afghanistan, as we have seen earlier, this is a debatable pr

and Gates has recognized that “Pakistan probably did not agree that int

law permitted unilateral action.”116 Indeed, as we also saw earlier, Paki

mently objected to the US drone and special operations attacks in the trib

One should devoutly hope that failure in Afghanistan is in fact not 

Robert D. Kaplan has recently suggested that “[s]trategically, culturally

torically speaking, Afghanistan and Pakistan are inseparable.”117Also, in 

[F]ailure in Afghanistan would do India no favors. In Afghanistan we are no

trying to save a country, but to give a whole region a new kind of prospe

stability, united rather than divided by energy needs, that would be im

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gg g g

issue of our time, and Afghanistan is at its heart. The fate of Eurasia hangs in the b

But how long is this “long war” likely to be? A crucial issue, in both Ir

ghanistan, is the time required for a well-run counterinsurgency strateg

Sarah Sewall, a former Pentagon official who wrote the introduction to th

sity of Chicago edition of the new U.S. Army/Marine Corps Counterinsurg

Manual,118 for one, is skeptical that the US public will be willing to “sup

concentrations of forces, accept higher casualties, fund serious nation

and stay many long years to conduct counterinsurgency by the book.”1

If Ms. Sewall’s gloomy prognosis should prove correct with respect to 

stan, the adverse impact on international law and international instituti

be substantial. Failure in Afghanistan would be a catastrophic failure o

not only of the United States but of the world community as a whole

mean that the Taliban, al Qaeda and other militant Islamic forces had m

defeat US and other NATO forces in ISAF, as well as US forces engage

terrorism missions under Operation Enduring Freedom. This would cal

ous question the future viability of NATO and of UN peacekeeping effor

in Afghanistan would also call into question the continued viability 

building efforts, by the United Nations and others, and arguably sup

skeptical of such efforts, such as the Bush administration in its early day

At this writing, there are reports that the Bush administration has 

major review of its Afghanistan policy and that a nearly completed Nati

ligence Estimate, a formal report that reflects the consensus judgm

American intelligence agencies, will set forth an extremely grim assessm

current situation in Afghanistan, especially of the Afghan leadership a

eign allies. This should come as no surprise to those familiar with th

ments and issues discussed in this article. One must hope, however, tha

of the report after the 2008 presidential election will stimulate a search

of these developments and issues. Avoiding failure in Afghanistan will 

substantial measure upon a successful resolution of the many issues aris

the situation there.

Notes

1. Carlotta Gall, U.S. Killed 90 in Afghan Village, Including 60 Children, U.N. 

YORK TIMES, Aug. 27, 2009, at A6, col. 1. See also Alison Smale, Afghanistan Is in Its 

Since 2001, European Diplomat Says, NEW YORK TIMES, Sept. 15, 2008, at A11, col. 

2. Rory Stewart, How to Save Afghanistan, TIME, July 17, 2008, availabl

www.time.com/time/printout/0,8816,1823753,00.html.

102

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NEW YORK TIMES, Sept. 11, 2008, at A1, col. 1.

4. See Jane Perlez, Pakistan’s Military Chief Criticizes U.S. Over a Raid, NEW Y

Sept. 11, 2008, at A8, col. 3.

5. See Thomas Schweich, Is Afghanistan a Narco-State?, NEW YORK TIMES MAG

27, 2008, available at http://www.nytimes.com/2008/07/27/magazine/27AFGHAN

=1&sq=is%20afghanistan%20a%20narco-state&st=cse.

6. Id. at 1.

7. See Smale, supra note 1.

8. Much of the information in this section is taken from Kenneth Katzman, A

Post-War Governance, Security, and U.S. Policy, CRS REPORT FOR CONGRESS 1–7 (Ju

available at http://www.fas.org/sgp/crs/row/RL30588.pdf.

9. Id. at 1.

10. After his government fell, Najibullah declined to flee Afghanistan. Inst

brother and aides remained at a UN facility in Kabul until the Taliban movement ga

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 

ber 29, 1990, which authorized member States, unless Iraq complied with a series of 

cil resolutions by January 15, 1991, to use “all necessary means” to “uphold and 

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 

supersede the right to individual or collective self-defense. See, e.g., Eugene V. Ro

What? Enforcement Action or Collective Self-defense?, 85 AMERICAN JOURNAL OF INTE

LAW 506 (1991), in which the author argues that the Persian Gulf War of 1990–91 w

enforcement action but rather “a campaign of collective self-defense approved, enco

blessed by the Security Council.” To the contrary, see Thomas M. Franck & Faiza Pate

Action in Lieu of War: The Old Order Changeth, 85 AMERICAN JOURNAL OF INTERNAT

63 (1991).

16. For a forceful defense of the proposition that “all lingering doubts on this issu

dispelled as a result of the response of the international community to the shocking 

[sic] September 2001 (9/11),” see YORAM DINSTEIN, WAR, AGGRESSION, AND SE

206–8 (4th ed. 2005).

17. This discussion of the early combat operations in Afghanistan is based p

Katzman, supra note 8, at 7 and BARRY E. CARTER ET AL., INTERNATIONAL LAW 80

2007).

18. See excerpts from the President’s speech in CARTER ET AL., supra note 17, a

19. According to reports, “some critics believe that U.S. dependence on local Af

forces in the war strengthened the militias in the post-war period.” Katzman,supra n

20. Id.

21. Id.

22. Id.

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

24. Id. at 206–7.

25. As a condition precedent to its invocation of Article 5, for the first time in his

lantic Council met and agreed that there had to be evidence that the attack agains

103

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deemed sufficient by the Council.

26. Dinstein notes further that “[t]his must be understood in light of Article 

Treaty, which refers specifically to an armed attack and to the right of self-defence 

Article 51 . . . .” DINSTEIN, supra note 16, at 208.

27. Michael Byers, for example, has described the US “expansion” of the defin

defense to include a military response against States, such as Afghanistan, that willi

terrorist groups that have attacked the United States as “dangerous” because it m

tended to situations where the provocation is far less grave than the September 11 

MICHAEL BYERS, WAR LAW: UNDERSTANDING INTERNATIONAL LAW AND ARMED C

(2005).

28. See, e.g., David Usborne, UN Raps U.S. Military after Afghan Wedding Deat

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 UNITE

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 UNI

PITTSBURGH LAW REVIEW 889, 902–4 (2002).

32. Id. at 904.

33. See Pamela Constable, U.S. Hopes to Attract Moderates in Taliban; Powell 

‘New Afghanistan,’ WASHINGTON POST, Oct. 17, 2001, at A24, cited in id. at 904 n.9

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 

dering Afghanistan: Iran, China, Pakistan, Turkmenistan, Uzbekistan, and Tajik

failed efforts included a “Geneva group” (Italy, Germany, Iran and the United State

2000; an Organization of the Islamic Conference contact group; and Afghan exile eff

ing one by the Karzai clan (including Hamid Karzai) and one centered on Zahir Shah

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 h

broker a post-conflict peace process, it has relied on existing administrative and poli

tions. This could not be the case in Afghanistan, where the Taliban had been rem

power and what little it had in the way of an administrative and political infrast

stroyed. See Marina Ottaway & Bethany Lacina, International Interventions and Impe

sons from the 1990s, 23 SAIS REVIEW OF INTERNATIONAL AFFAIRS 71, 82 (Summer–

40. The text of the Bonn Agreement is available at http://www.ag-afghanist

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, 

TIZATION, June 1, 2008, available at http://pdfserve.informaworld.com/974713

_793225710.pdf.

45. Id. at 634.

46. Id. at 635.

47. Id

104

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49. Id.

50. Id. at 639.

51. Id. at 640.

52. Id. at 641.

53. Id.

54. Id. at 644.

55. Katzman, supra note 8, at 10.

56. Id.

57. Id.

58. Id. at 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, 3

69. See Yochi J. Deazen, Troop Needs Open NATO Rift, WALL STREET JOURNAL, 

at A8, col. 1.

70. Id.

71. See Fidelius Schmid, Jon Boone & Stephen Fidler, Paris comes to Canada’s a

troops, FINANCIAL TIMES, Feb. 8, 2008, at 2, col. 1.

72. Id.

73. See Stephen Fidler, US flags up Afghanistan terror dangers for Europe, FINAN

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 TIM

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 TI

2008, at A12, col. 1.

86. See Jane Perlez & Pir Ubair Shah, Confronting Taliban, Pakistan Finds Itself a

YORK TIMES, Oct. 3, 2008, at A1, col. 4.

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

88. See Schweich, supra note 5.

105

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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

U.N.T.S. 90. For discussion of the problem of “collateral damage,” see YORAM DIN

CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFL

(2004).

93. DINSTEIN, supra note 92, at 115, quoting Waldemar A. Solf, Article 51, i

BOTHE, KARL J. PARTSCH & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS 

CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO T

CONVENTIONS OF 1949, at 296, 300 (1982).

94. See Charles J. Dunlap Jr., Using bad PR is Taliban’s defense against airpowe

JOURNAL-CONSTITUTION, Sept. 17, 2008, available at http://www.ajc.com/opini

opinion.stories/2008/09/17dunlaped. In his op-ed piece General Dunlap quotes a c

between Taliban commanders, intercepted by US intelligence officers, in which one 

manders says, “Tanks and armor are not a big deal—the planes are the killers. I can h

thing but the jet fighters.”

95. See Trudy Rubin, Danger on Remote Pakistan Border, PHILADELPHIA INQUI

2008, at C1, col. 1.

96. See Bull, supra note 76.

97. See Jimmy Burns & Daniel Dombey, Britain risks US rift in war against Tali

CIAL TIMES, Oct. 6, 2008, at 9, col. 1.

98. Id.

99. Id.

100. See Rubin, supra note 95, at C1, C6.

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

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

103. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, 2004 I.C.J. 136 (July 9).

104. For sharply contrasting views on the opinion,compare Sean D. Murphy, Self-

the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 99 AMERICAN JOURNA

NATIONAL LAW 62 (2005), with Iain Scobbie, Words My Mother Never Taught Me—I

the International Court, 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 76 (2005

105. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Ug

I.C.J. 116, para. 147 (Dec. 19).

106. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

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 

110. See Thom Shanker & Eric Schmitt, NATO Aims At Afghans Whose Drugs A

NEW YORK TIMES, Oct. 2, 2008, at A8, col. 1.

111. Id.

112. Id.

113. Kitfield, supra note 68, at 37.

114. Id. at 38.

115. Id. at 35.

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pfp

Sept. 24, 2008, at 8, col. 1.

117. See Robert D. Kaplan, A Manhunt Or A Vital War?, NEW YORK TIMES SUNDA

Oct. 5, 2008, at 10, col. 2.

118. See Sarah Sewall, Introduction to THE U.S. ARMY/MARINE CORPS COUNTERI

FIELD MANUAL xxi (Univ. of Chicago Press 2007).

119. Id. at xxxviii–xxxix.

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V

The International Legality of US Milit

Cross-Border Operations

from Afghanistan into Pakistan

Sean D. Murphy*

Introduction

An aspect of US military involvement in Afghanistan since 2001 ha

use of cross-border US operations from Afghanistan into Pakist

taken for the purposes of striking at the camps, compounds, and con

Qaeda and Taliban elements based in Pakistan, and of defending aga

border attacks and infiltration by those militants from Pakistan into Af

As a matter of scale, US cross-border operations are far less momentous 

ations that seek to topple a de jure government (as occurred when the Un

intervened in Iraq in 2003, ousting the government of Saddam Hussei

facto government (as occurred when the United States intervened in A

in 2001, displacing the largely-unrecognized government of the Taliba

theless, these smaller-scale cross-border attacks on non-State actors, th

entail less intrusive and more temporary projections of force, implicate 

issues of sovereignty, stability, and self-defense, and raise difficult quest

the role of law in regulating low-intensity conflict.

This article discusses the nature of these cross-border operations fo

pose of assessing their legality under the jus ad bellum, meaning their c

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

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with the norms embodied in Articles 2(4) and 51 of the UN Charter. A

devoted to unpacking the complicated and evolving circumstance

ground, but the facts at issue in many instances are quite difficult to di

hence can support only tentative legal conclusions. While the focus 

principally be on US operations from Afghanistan into Pakistan fro

the present, the analysis is relevant in other contexts as well, such a

cross-border operations in northern Iraq against the Kurdistan Worker

Colombia’s recent forays into Ecuador against the Revolutionary Arm

of Colombia.

Among other things, this article assumes that analyzing the legality of 

border operations into Pakistan under the jus ad bellum is important to t

States. US law and policy generally call for compliance with international 

conduct of US military operations. Further, US ability to secure the coop

other States may turn on whether US operations are in compliance wit

tional law. Support from US allies includes support from Pakistan itself, in 

cargo and much fuel supporting the approximately thirty thousand US 

are based in landlocked Afghanistan transit through Pakistan.1 Indeed, in S

2008, the Pakistani government threatened to close down US supply r

Afghanistan in response to US cross-border operations, prompting t

States to rethink its strategy in this area.2 Broader US objectives of mai

stable Pakistan—an objective arguably paramount for the United State

bating terrorism3—may turn in part on internal Pakistani perceptions c

the legality of US conduct. Moreover, though adjudication of the lega

cross-border operations before an inter-State tribunal, such as the Int

Court of Justice, may not be likely, it is not impossible, and adverse rulin

fect the ability of the United States to maintain both domestic and int

support for its policies.4 Finally, the State parties to the Rome Statute5 es

the International Criminal Court (ICC), at their review conference in 

activate the ICC’s jurisdiction over the crime of aggression, thereby pote

posing US military personnel engaged in such cross-border operations t

tional criminal liability.6 For all these reasons, there is value in assessing t

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 w

tially established in 1893 by Sir Henry Mortimer Durand, a civil servant an

of colonial British India. The purpose of the line (which became kno

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Durand Line) was to delimit British colonial holdings in India from Af

since Pakistan did not yet exist as a nation-State. The standard account 

Durand Line was negotiated with and accepted by the Amir of Afghanist

Rahman Khan, and when Pakistan achieved national independence in 1

stan succeeded to that border.7

The border, however, is not without some controversy. Given that the 

vides the ancestral home of the Pashtun people, the Pashtuns have object

border was imposed by a strong colonial power (Britain) upon a weak 

ghanistan), which was in no real position to object. In the years after Paki

pendence, Afghanistan began to voice a view that the Durand Line lapse

end of the British colonial rule,8 a position that essentially rejects the inter

accepted principle of uti possedetis juris (which maintains that States new

out of colonies should have the same borders that they had before their 

ence). The Afghan position is widely accepted within Afghanistan, but 

no traction in the international community, and would likely not be ac

any authoritative decisionmaker, such as the International Court of J

contrast, Pakistan has maintained that the border is of longstanding legal

demarcated and largely follows a series of topographic features that pro

natural divide.9

In short, the border as a legal construct is well known and accepted 

international community. As such, arguments in favor of significant cro

operations cannot credibly be justified on grounds of uncertainty as to th

of the border or genuinely disputed territory; other justifications are ne

The Afghan-Pakistan Border in Practice

While the location of the Afghan-Pakistani border is relatively well s

functioning of that border as an effective barrier between the two State

so. The movement of peoples across the border is generally unchecked, w

populations of both Pashtuns and Baluch on both sides of the border mo

and engaged in extensive smuggling operations that predate 2001.10 The 

depicts the border area. On the Pakistani side of the border, there a

groups that are the object of US cross-border operations.

First, there are the remnants of Al Qaeda and other extremist Islami

fighters” who fled across the border from Afghanistan after the US-led 

tion in the fall of 2001. US defense officials and independent analysts 

number of Al Qaeda fighters in Afghanistan at somewhere between 15

persons.12 Osama Bin Laden is thought to be hiding among those figh

Waziristan region of Pakistan, which is part of the Federally Administe

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Areas (FATA) immediately adjacent to the border,

but his whereabou

confirmed.

Second, there are remnants of the Afghan Taliban regime (a pred

Pashtun movement) that also fled into Pakistan in late 2001, but have re

and experienced a resurgence in fomenting guerrilla resistance to the ne

government and its foreign supporters, including the United States.14 A

Afghan insurgent groups based along the Afghan-Pakistani demarcatio

both sides of the border, engaging in classic guerrilla warfare by attack

in Afghanistan and then retreating to mountain strongholds on both s

border.15

Third, there is Pakistan’s own Taliban movement (called Tehrik-e-T

kistan), led by Baitullah Mehsud, and consisting of a cluster of Pashtun 

clans united principally by a shared goal of resistance to the Pakistani an

ernments. Tehrik-e-Taliban Pakistan has established strongholds in N

South Waziristan, and at present there are concerns about “Talibanizati

entire western region of Pakistan. While Pakistan’s Taliban is principal

on activities within Pakistan, it is also promoting fighting across the bo

US forces in Afghanistan.16

The relationship among Al Qaeda, other militant groups, the Afgha

and the Taliban in Pakistan is not entirely transparent, but connections 

exist. Many of the “foreign fighters” in the region take their guidance fr

Al Qaeda leaders and serve as “trainers, shock troops, and surrogate l

Taliban units in the field.”17 In this way, Al Qaeda is supporting militants 

the border into Afghanistan, as well as insurgent groups in Afghanistan, 

tacks on US and coalition forces, as well as the Afghan government

RAND report states:

Al Qaeda played a critical role in the [Afghan] insurgency as a force multiplier, 

insurgent groups such as the Taliban at the tactical, operational, and strateg

Groups such as the Taliban used support and training from jihadists to c

increasingly sophisticated IEDs [improvised explosive devices], including IE

remote-control detonators. For example, there were a handful of al Qa

training facilities and IED assembly facilities in such places as North an

Waziristan. . . . al Qaeda received operational and financial support from loc

and Taliban commanders in Waziristan.18

A Taliban commander characterized the Taliban and Al Qaeda in Pakist

ing “close ties,” while a US military intelligence official stated that “tryin

rate Taliban and al Qaeda in Pakistan serves no purpose. It’s like picking 

out of your head.”19

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In recent testimony before the US Senate Armed Service Committe

Chairman of the Joint Chiefs of Staff, General James Cartwright, testifi

lamic militant fighters crossing the border from the FATA region of Pak

Afghanistan account for about 30–40 percent of the guerrilla attacks taki

Afghanistan against the Afghan government or its allies.20 Further, th

border attacks (many of which are suicide attacks) from Afghanistan hav

the rise, from twenty a month in March 2007 to fifty-three a month in A

with many attacks targeting troops from countries considering whethe

draw their forces from Afghanistan, such as Canada and the Netherla

cording to the RAND study:

Several factors can be attributed to the rise in suicide attacks. First, the 

successfully tapped into the expertise and training of the broader jihadist com

especially al Qaeda. Jihadists imparted knowledge on suicide tactics to Afghan 

through the Internet and in face-to-face visits. With al Qaeda’s assistanc

militants helped supply a steady stream of suicide bombers. Second, al Qaeda 

Taliban concluded that suicide bombing was more effective than other tactics i

Afghan and coalition forces.22

The government of Pakistan generally does not control the FATA reg

is divided into largely autonomous provinces loosely linked to Islamabad 

of a “political agent” (a vestige of British colonialism). Indeed, the lega

ship is so attenuated that the ability of the Pakistani government, under 

law, to authorize US military actions in the FATA is not entirely clea

quently, prior to the attacks of September 11, 2001, the border areas w

entirely in the hands of local tribal groups. After 9/11 and the US-led in

in Afghanistan, the United States urged Pakistan’s central government 

greater control over the border areas, which resulted in the Pakistani ar

tantly conducting some counterterrorism operations in the FATA again

and Al Qaeda operatives. Those operations were not effective in elimin

tant groups and caused significant collateral civilian casualties that infla

animosity toward the Pakistani government and army.23 Most military o

have been left to the eighty-thousand-person “Frontier Corps,” a poo

and underfunded paramilitary force consisting of recruits from loca

tribes serving under regular Pakistani army officers. While these units h

times engaged in assaults on Taliban and Al Qaeda elements in the bo

there are credible reports (denied by the Pakistani government) that el

the Frontier Corps are closely aligned with the Taliban.24 In response to 

government military operations, the militant groups in the FATA began 

ing a series of suicide attacks against various targets in other parts of P

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show their strength and weaken the Pakistani government, though su

may have undermined support for the militants within the Pakistani pop

Islamabad’s efforts to “govern” the FATA have always entailed d

struck between the government, its regional authorities, or the Pakistani 

the FATA tribal officials. In the post-9/11 period, the Pakistani govern

tinued to pursue such deal making, including agreements not just w

groups but with Tehrik-e-Taliban Pakistan itself, addressing issues such 

of the border areas, militant terrorist attacks within Pakistan and milit

border attacks into Afghanistan.26 As such, the strategy of the central 

government in handling the western border areas has oscillated betwee

action and negotiation.

The opaqueness of the relationship among the Pakistani Army, th

Corps and the militants in the FATA somewhat clouds the legal analys

lows, since the cross-border militant attacks on Afghanistan might or mi

viewed as attributable to the Pakistani government, either due to tha

ment’s outright collusion with the Taliban or its failure to take the steps 

to stop cross-border attacks. On the one hand, in some instances US in

officials, as well as independent researchers, have concluded that the Pak

ernment has provided direct support to militants for operations in Af

such as logistical support for a militant car bombing at the Indian E

Kabul in July 2008, a charge denied by Pakistan.27 In light of those conclu

no surprise that the Washington Post reported Central Intelligence Agen

military officials as saying that they “nowwithhold intelligence about the 

whereabouts of al-Qaeda commanders [in Pakistan] out of fear that the 

might tip them off.”28

On the other hand, the Pakistani government’s general indifference t

attacks across the border into Afghanistan probably lies less in tacit su

those operations than in a simple belief that pursuing large-scale milit

tions in the FATA that kill Pashtuns, trample prior agreements providi

FATA autonomy and incur significant Pakistani army casualties wou

tremely unpopular with the Pakistani population and ultimately ine

stopping cross-border attacks. Moreover, some Pakistani officials appar

to preserve the possibility of a “Taliban option,” one that might prove us

ture relations in Afghanistan.29 Whatever the reason, by mid-2008 the 

Times was reporting that “Pakistani officials are making it increasingly 

they have no interest in stopping cross-border attacks by militants into 

stan, prompting a new level of frustration from Americans who see the i

as a crucial strategic priority in the war in Afghanistan.”30

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US Cross

Border Operations into Pakistan

US cross-border operations into Pakistan to date have taken three form

strikes from Predator drones, defensive actions in immediate response 

border raid from Pakistan and covert missions by special operations for

militant targets located deeper in Pakistan. Each should be considered 

when analyzing their legality under the jus ad bellum.

First, the United States has engaged in attacks against what are believ

Qaeda and Taliban targets (such as training camps, compounds or conv

kistan, using Hellfire missiles launched from unmanned Predator aircra

some of those aircraft are reportedly kept at a secret base in Pakistan, no

stan, such that these are not necessarily cross-border operations.31 Furth

kistani government apparently has tacitly agreed that these strike

undertaken without specific consent to each operation, so long as they t

eign fighters” and not Pakistani Taliban, though the existence of that tac

is disputed.32 While the United States does not disclose its strikes, the 

government asserted that three strikes occurred in 2007, while eleven 

ducted from January to August of 2008,33 with perhaps another dozen o

September and October.34 The strikes reportedly have had some succ

several senior Al Qaeda leaders.35 Yet they have also been blamed for the 

dozens of civilians in Pakistan, collateral casualties that have fueled r

among Pakistanis toward the United States. If relations between the Un

and Pakistan were to deteriorate, and Predator aircraft were no longer 

be launched from within Pakistan, then presumably such aircraft might b

Afghanistan for the purpose of undertaking cross-border missions into 

Second, while US military forces engaged in military operations in A

are generally prohibited from crossing orfiring into Pakistan, their rules 

ment apparently allow them to do so as a matter of “hot pursuit” when e

self-defense.36 Hence, when US forces come under attack from militan

by artillery fire from Pakistan or by militant units who cross over the bo

Pakistan), US forces have responded forcibly against the militants both in 

stan and through pursuit of the militants back into Pakistan. For examp

2008, US officials asserted that Taliban fighters from Pakistan crosse

border into Afghanistan (Kunar Province) and attacked US-led fo

small-caliber weapons and rocket-propelled grenades. The US-led force

fire, drove the militants back across the border, and then pursued them w

Force fighter-bombers and a B-1 bomber, which dropped twelve gravity 

them. Though US forces apparently alerted Pakistani forces in advance 

intended airstrike, Pakistani Frontier Corps personnel were present a

checkpoint. Eleven were killed by the bombs (as were several of the 

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resulting in a strong protest by the Pakistani government that the US ope

“a gross violation of the international border.”37

The determination that an attack from Pakistan against US forces in 

stan has occurred or is occurring has proven somewhat elastic. Hence, 

one instance, when US forces received information that militants we

move in Pakistan and heading toward US forces in Afghanistan, US force

tively attacked the militants even before they crossed the border, includin

a compound one mile within Pakistan with missiles.38

Third, US cross-border operations now apparently include covert mi

US joint special operations task force likely consisting of Navy SEAL

Army’s Delta Force39) in pursuit of targets in Pakistan’s tribal areas—m

undertaken in immediate response to a cross-border raid from Pakistan. 

sions reportedly were planned but not undertaken up until mid-2008, d

cerns about the likely success of such missions, the effect on relation

government of Pakistan, and the risks attendant to special forces bein

captured.40 In July 2008, however, President Bush reportedly issued sec

for such operations to occur even in the absence of express and prior Pak

ernment approval. According to the New York Times, which broke the s

The new orders reflect concern about safe havens for al Qaeda and the Taliba

Pakistan, as well as an American view that Pakistan lacks the will and ability to 

militants. They also illustrate lingering distrust of the Pakistani milit

intelligence agencies and a belief that some American operations ha

compromised once Pakistanis were advised of the details.41

On September 3, 2008, the first operation occurred, involving US Na

crossing the border on helicopters, supported by an AC-130 gunship, 

Angor Adda (in the South Waziristan tribal agency), killing about two d

pected Al Qaeda fighters and then returning to Afghanistan by helicopt

stani authorities strongly objected to the operation and threatened, if su

continued, to cut off US supply lines through Pakistan to US forces in l

Afghanistan.43

Potential Legal Bases for US Cross-Border Operations

Article 2(4) of the UN Charter provides that “[a]ll Members shall refra

international relations from the threat or use of force against the territo

rity or political independence of any state, or in any other manner in

with the Purposes of the United Nations.”44 The three forms of cross-b

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with respect to drone aircraft, potentially cross

border) operations no

prior section would likely be regarded as violations of Article 2(4) in th

of some form of justification, for they entail military personnel or we

tering Pakistani territory and inflicting considerable violence upon per

ent in Pakistan and their property. There are, however, four potentia

justifying these cross-border operations under international law: (A) c

the Pakistani government, (B) authorization by the UN Security Counc

herent self-defense against non-State actors operating from Pakistan 

herent self-defense against Pakistan itself. Each justification is briefly di

turn.

US Cross-Border Action Taken with the Consent of Pakistan

To the extent that the government of Pakistan has consented to US cro

military operations from Afghanistan into Pakistan, that consent ob

question about the legality of those operations under international law

rules on State responsibility accept that conduct does not violate an obli

State if that State has consented to the conduct,45 and that view applies 

of the jus ad bellum as well.46 While the legal justification for US cross-bo

ations appears heavily reliant on Pakistani consent, the existence of such 

the three forms of US cross-border operations discussed above is not at 

may not prove enduring.

Media reports, largely based on off-the-record comments by senior U

kistani officials, indicate that Pakistan’s civilian and military leadersh

prepared publicly to support US cross-border operations into Pakistan

lack of public consent does not mean that Pakistani consent does not 

veying the background to US cross-border operations, the Washingto

noted that although Pakistan “formally protests such actions as a viola

sovereignty, the Pakistani government has generally looked the other way 

CIA conducted Predator missions or US troops respond to cross-border 

the Taliban.”48 There may be internal documents or communications fro

kistani government that clarify such consent and, if so, the United States 

strong position to establish the legality of these operations in whateve

necessary, assuming such information can be made public. Certainly the 

government’s knowledge of Predator drones being based in Pakista

knowledge that such aircraft are being used for missile strikes, present

picture of tacit consent so long as such knowledge can be established. H

the claim of the Pakistani government’s consent is based solely on a beli

Pakistani government is “looking the other way,” then establishing conse

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difficult in the face of the various public protests about US cross

bord

that have been made by Pakistan.

With respect to the more recent special operations missions, the 

Times reported that a “senior American official said that the Pakistan

ment had privately assented to the general concept of limited ground a

Special Operations forces against significant militant targets, but that 

approve each mission.”49 Yet the public stance of the Pakistani governm

such operations are not permitted.50 In the wake of the September 3, 2

border operation by US Navy SEALs, and the adverse reaction of the 

army and public opinion to such raids, the Chief of the Army Staf

Ashfaq Parvez Kayani, asserted: “There is no question of any agreement 

standing with the coalition forces whereby they are allowed to conduct o

on our side of the border.”51

Confusion about the existence of consent stems in part from the fra

ture of the Pakistani government.52 The President of Pakistan, Asif Ali 

the official head of State, while Prime Minister Syed Yousaf Raza Gillani 

of government. The President and his designees would normally be loo

Pakistani consent to the use of force by another State in Pakistan. Unde

law, the President appoints the Chief of the Army Staff, currently Gene

Parvez Kayani, an individual who might be seen as deputized to provid

on behalf of the President. Yet, at present, there is a considerable divide in 

tween President Zardari and the Army leadership, including over Paki

sent to US cross-border operations.53 The Army’s disagreements with t

leadership are not simply bureaucratic maneuvers; on several occasions 

has overthrown the President and Prime Minister, most recently in Oct

when the Army deposed the elected Prime Minister, Nawaz Sharif, in a 

coup.54 Moreover, as indicated above, with the “Talibanization” of the w

gion, Pakistani sovereign power in the FATA is almost de minimis, sugge

scent insurgency that already contests Islamabad’s authority in the wes

may ultimately contest it nationwide. Depending on how Pakistani polit

discerning consent solely from the President may or may not reflect the t

of sovereign power in Pakistan.

Even if sovereign consent may be discerned, there are disadvanta

United States in basing the jus ad bellum legality of its operations solely o

sent of the Pakistani government. That consent, whether given explicitly 

itly, may be withdrawn at any time, unless it is expressed as a legal

commitment for a specified period of time. With the changes in leaders

Pakistan in recent years, consent from the government cannot be relie

steadfast. Moreover, consent may always be predicated on certain requ

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such as prior notification of a given action to the Pakistani government, w

be difficult for time-sensitive operations or where concerns exist about 

ing confidentiality. Since the host government’s consent only establishe

ity of action taken within the scope of the consent, any US operations tak

that scope will implicate Article 2(4). For example, if it is true that Pred

strikes are only authorized for attacks against Al Qaeda or foreign figh

pursuit of such strikes against the Taliban could be regarded as a violation 

ad bellum.

Finally, while consent is a valid justification when it is received from 

government fully in control of its territory, it might become invalid if th

ment no longer controls or only partially controls its territory. Traditio

bellum doctrine regards support for a government as permissible until s

as an internal insurgency has risen to the level of being a co-belligeren

government, at which point arguably the government is no longer “in a p

invite assistance in the name of the state.”55 If the apparent “Talibanizat

western provinces of Pakistan continues apace, and spreads throughou

at some point the ability of the de jure government to consent to US cro

operations under international law may be regarded in the internationa

nity as insufficient to support the legality of those operations.56

In short, consent of the Pakistani government is a strong legal justif

the use of US Predator aircraft in Pakistan, so long as Pakistan continu

them to be launched from a Pakistani base. US cross-border operations

can only rely upon this justification if authoritative decisionmakers in 

have formally consented to the type of operation at issue, and so long as 

sent remains intact. The facts publicly available suggest Pakistani toleran

not necessarily formal consent to, US cross-border operations undertak

mediate response to attacks by militants staged from Pakistan. Even for t

ations, Pakistan appears to expect notification and avoidance of actions 

harm Pakistani forces or civilians. By contrast, Pakistan publicly appea

rejected cross-border operations by US special forces undertaken deep

stani territory and not in response to an immediate raid from Pakistan

given the potential difficulty in proving the existence of Pakistani con

cross-border operations, and the possibility of such consent ending, ot

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 suppo

some of the US cross-border operations, an alternative basis for legality 

pursued in the form of Security Council authorization. When acting 

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Charter Chapter VII, the Security Council is empowered to decide upon 

necessary for maintaining or restoring peace and security, including mea

are forcible in nature.57 The Security Council has adopted several resolut

ing to Afghanistan in the aftermath of the attacks of 9/11, but none of tho

tions appear to authorize US cross-border operations into Pakistan.

Prior to the overthrow of the de facto Afghan government of the Talib

curity Council adopted two resolutions that affirmed, in the context of t

tacks, the inherent right of individual and collective self-defense and th

combat by all means” the “threats to international peace and security 

terrorist acts.”58 These resolutions did not constitute a Chapter VII aut

from the Security Council to use force; rather, they were a confirmation 

herent right of self-defense that preceded and was preserved through pas

resolutions.59 The next subsection considers whether US cross-border o

into Pakistan can be justified on the basis of individual or collective self

After the de facto Taliban government was overthrown in late 2001, t

Nations facilitated negotiations in Bonn, Germany to establish a frame

timeline for the establishment of new Afghan political institutions. Mor

nex 1 of the Bonn Agreement provided that “the participants request the 

of the international community in helping the new Afghan authorities in 

lishment and training of new Afghan security and armed forces,” and 

“the early deployment to Afghanistan of a United Nations mandated f

Resolution 1386, the Security Council endorsed the Bonn Agreement a

rized the establishment of the International Security Assistance Force 

assist the Afghan Interim Authority in the maintenance of security in Ka

surrounding areas, so that the Afghan Interim Authority as well as the pe

the United Nations can operate in a secure environment.”61 The resol

called upon “Member States participating in the International Security 

Force to provide assistance to help the Afghan Interim Authority in the 

ment and training of new Afghan security and armed forces.”62 Shortly 

the interim Afghan government concluded a bilateral agreement with 

concerning the size of the deployment and the tasks it would undertake.

the Security Council adopted Resolution 1413, authorizing “Member Sta

ipating in the International Security Assistance Force to take all necessary 

to fulfill the mandate of the International Security Assistance Force.”64 S

resolutions have extended ISAF’s mandate temporally65 and geographi

as allowing ISAF

to support the Afghan Transitional Authority and its successors in the mainte

security in areas of Afghanistan outside of Kabul and its environs, so that the 

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p

civilian personnel engaged, in particular, in reconstruction and humanitarian 

can operate in a secure environment, and to provide security assistance 

performance of other tasks in support of the Bonn Agreement.66

From these instruments, it is apparent that the ISAF is a multination

force authorized by the UN Security Council under Chapter VII of the UN 

The ISAF is not a UN force in the sense of being funded by, and under the c

and-control of, the United Nations; rather, it is a coalition of self-fund

authorized by the Security Council to engage in specified tasks in Af

Though the Security Council theoretically could authorize the ISAF to 

cross-border operations into Pakistan, no such authorization exists in 

Security Council resolutions either expressly or by implication. Indeed

ISAF sees its mission as including efforts to defeat the threat of insurge

ghanistan, NATO’s 2005 Operational Plan, as revised, provides that ISAF

is the stabilization of Afghanistan, not counterterrorism.67

US cross-border operations are not undertaken through the ISAF. Ra

operations occur as a part of the multinational coalition of States pres

ghanistan for Operation Enduring Freedom (OEF). US forces in Afgha

OEF are deployed as Combined Joint Task Force–82 (CJTF-82), which 

Bagram Air Base. That task force reports to the US-led Combined Forces C

Afghanistan, which is based in Kabul. CJTF-82 operates and supervis

bined Joint Special Operations Task Force–Afghanistan, which consists 

operations forces. Yet there is also reportedly an “Other Coalition Forc

special operations forces, which does not report to CJTF-82. This latter

cretive unit may be the one responsible for the covert US cross-borde

into Pakistan.

In any event, all of these US forces deployed for OEF are separate fro

forces deployed in support of the UN-mandated and NATO-led ISAF 

discussed above, is focused on providing security in Kabul and its surrou

eas for the Afghan government, and assisting the government in the esta

and training of Afghan security and armed forces. The ISAF and OEF h

pletely separate mandates and missions, with the ISAF focusing on a st

and security mission, while OEF focuses on the counterterrorism missio

the Security Council resolutions discussed above relate to OEF and hen

serve as a basis for a Security Council mandate for the United States to 

cross-border operations into Pakistan.

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US Cross

Border Action Taken in SelfDefense against NonState Act

A third basis for finding US cross-border operations into Pakistan p

under the jus ad bellum relies upon the United States’ inherent right of se

or its right to engage in collective self-defense at the request of Afghanist

51 of the UN Charter indicates that the prohibition on the use of force 

in Article 2(4) may be overcome when acting in self-defense, since “[n

the present Charter shall impair the inherent right of individual or coll

defence if an armed attack occurs against a Member of the United Nat

the Security Council has taken the measures necessary to maintain int

peace and security.”68

In considering this basis, there are several key and perhaps troubling 

that arise: What was the preceding use of force against which the Unite

defending? Does that preceding use of force rise to the level of an “arm

within the meaning of UN Charter Article 51? Can the United States invo

51 when defending against the conduct of a non-State actor? Are the 

border actions necessary and proportionate defensive responses? Each q

discussed in turn.

What Was the Preceding Use of Force against Which the United States Is D

There are two candidates for the preceding use of force to which the Un

is responding in self-defense. First, the United States might be seen today 

fending against Al Qaeda’s attacks of 9/11 (as well as perhaps other action

Al Qaeda globally against the United States, such as the 1998 bombing 

bassies in Tanzania and Kenya and the 2000 attack on the USS Cole in Y

the initial US invasion of Afghanistan was a permissible act of self-defen

the perpetrators of 9/11, one designed to diminish or destroy Al Qaeda’

then cross-border operations today might be seen as part of a continuo

to accomplish that objective, albeit years later. There has been no temp

ruption in the deployment of US forces for this purpose, nor has there b

graphic interruption given that Al Qaeda elements fled toward and 

Pakistani border.

One complicating factor, however, arises from the use of cross-border 

to diminish or destroy the Taliban instead of Al Qaeda. Even at the tim

there were some doubts expressed about the right of the United States 

against the 9/11 attacks by using force for the purpose of ousting and dest

Taliban.69 While selective attacks on the Taliban that were necessary to 

forces hunting down Al Qaeda elements post-9/11 were squarely within 

of self-defending against Al Qaeda’s 9/11 attacks, operations directed sol

the Taliban were seen as more problematic, since the Taliban was n

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involved in the 9/11 attacks, in the sense of planning, funding, sending 

otherwise sponsoring those attacks.

An alternative preceding act triggering a right of US self-defense is th

cent cross-border raids into Afghanistan by militants based in Pakista

Taliban, but with support from Al Qaeda and other foreign fighters) to s

or coalition forces, or the government of Afghanistan. This approach do

phasize the attacks of 9/11 but, rather, the contemporary cross-border o

that are harming coalition and Afghan interests in Afghanistan. So long a

stan has consented to the presence of US forces as a means of assisting A

in defending against such attacks, US actions fall within the scope of eith

ual or collective self-defense, though they should be notified to the UN 

Council in accordance with UN Charter Article 51. Afghan Preside

Karzai himself has asserted Afghanistan’s right to defend itself from such 

crossing the border into Pakistan and destroying “terrorist nests.”70 Her

the complicating factor is the converse of that noted above; to the exte

Taliban is principally responsible for such cross-border operations, th

conduct that may be seen as triggering a right of self-defense and it is i

against which defensive measures may be taken. Only to the extent that A

engaged in the cross-border attacks into Afghanistan can US defensive 

against those attacks target Al Qaeda elements.

The upshot is that the preceding acts at issue may be a hybrid. US cro

actions against Al Qaeda in the form of covert special forces missions 

Predator attacks when launched from Afghanistan) are probably best v

continuing defensive response to the attacks of 9/11, whereas actio

Taliban and other militants infiltrating Afghanistan are best viewed as de

sponses against attacks occurring today on coalition forces in Afghanist

as the Afghan government.

Do Those Preceding Uses of Force Rise to the Level of an “Armed Attack” 

Meaning of UN Charter Article 51?

Article 51, by its terms, preserves a pre-existing right of self defense “if an 

tack occurs.” Scholars and States differ over whether such language nece

quires that an “armed attack” occur before the resort to self-defe

governments typically argue that such an attack has occurred whenever t

to self-defense.72 As such, a key question is whether the preceding action

tify US cross-border operations rise to the level of being an “armed atta

the meaning of Article 51. In the case concerning Military and Paramili

ities in and against Nicaragua (Nicaragua v. United States of America), th

tional Court of Justice provided some guidance on this point. On the o

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State

s deployment of regular armed forces across a border, or the sen

State of “armed bands, groups, irregulars or mercenaries which carry o

armed force,” can constitute an armed attack; on the other hand, a Sta

tance to rebels in the form of the provision of weapons or logistical or 

port” does not constitute an armed attack.73 Hence, there is a sliding scal

one assesses the level of intrusiveness and gravity of the act at issue to 

whether it rises to a level of “armed attack” that triggers a right of self-d

der Article 51.

With respect to the preceding act of Al Qaeda’s conduct on 9/11, there 

little doubt that such coercion constitutes an “armed attack,” given the s

struction and loss of life that occurred, as well as the reactions of the Un

and relevant international organizations, all of which characterized the c

attacks triggering a right of self-defense.74

With respect to the preceding act of Taliban cross-border operation

ghanistan, the gravity of those actions to date are of a much different ch

terms of the loss of life and destruction. Nevertheless, as indicated prev

attacks are occurring at a rate of from twenty a month in March 200

three a month in April 2008, causing considerable injury and deaths t

and the coalition forces that are in Afghanistan with Afghan consent. 

given cross-border raid into Afghanistan by militants from Pakistan mig

to fall below the threshold of an armed attack, and instead constitute 

“frontier incident,”75 the cumulative effect of all these cross-border 

militants would likely be seen as constituting an “armed attack” within 

ing of Article 51.

Can the United States Invoke Article 51 When Defending against the Con

Non-State Actor?

Article 2(4) prohibits uses of force by one State against another State. A

less clear in speaking solely to conduct between two States, since its lang

ply speaks of a UN member’s inherent right of self-defense against an arm

without indicating whether it is a State that must be undertaking that at

so, it might be argued that the Charter was designed solely to speak to 

obligations as between States, and any act of self-defense must be in resp

armed attack committed by or attributable to another State.76 In the M

Paramilitary Activities case, the International Court of Justice regarded a

of non-State actor conduct to a State as the critical factor when we

permissibility of defensive action against that State, but did not directly a

issue of defensive action against the non-State actor itself.77 However, in th

Opinion on the Israeli Wall, the Court—without much analysis—reject

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claim that it was acting in self

defense against attacks by terrorist gr

Court opined that Israel could not be acting in self-defense under Art

cause (1) Israel had not claimed that the terrorist attacks at issue were im

a foreign State and (2) those attacks were not transnational in nature, h

curred wholly within territory occupied by Israel.78

If the advisory opinion is correctly interpreting the jus ad bellum, th

not be possible to engage in Article 51 self-defense against a non-State act

self-defense is reserved for actions against another State, perhaps in 

where the acts of the non-State actor have been imputed to that other 

Court’s opinion, however, has been subjected to considerable criticism

which notes the fact that the global community (including the Securit

NATO, and the Organization of American States (OAS)) appears to hav

the attacks by Al Qaeda of 9/11 as justifying a response in self-defense.79 

cisms may explain a possible retreat by the Court in its 2005 case concern

Activities on the Territory of the Congo. In that case, rather than repeat its 

tion from the advisory opinion, the Court stated that, given the facts at 

case, there was “no need to respond to the contentions of the Parties as t

and under what conditions contemporary international law provides 

of self-defense against large-scale attacks by irregular forces.”80 Bo

Kooijmans and Simma stated in separate opinions that, if the Court still v

cle 51 as restricted to self-defense only against an attack by another Stat

Court is out of step with both the Security Council and State practice.81

While this area of the law remains somewhat uncertain, the dominan

contemporary interstate relations seems to favor the view that States ac

least tolerate acts of self-defense against a non-State actor. Turkey has e

various cross-border operations against the Kurdish separatist guerrilla 

tion known as the Kurdistan Workers’ Party,82 without being condemn

Security Council, General Assembly, or International Court. In early 200

bian military forces bombed and crossed into Ecuador to attack guerr

Revolutionary Armed Forces of Columbia, which is regarded by Colomb

rorist and drug-trafficking organization. Again, none of the principal or

United Nations criticized the action; while the Organization of Ameri

adopted a resolution declaring the Colombian raid to be a violation of 

sovereignty, the OAS stopped short of expressly condemning Colombia

the summer of 2006 sent military forces into, and bombed portions of

Lebanon in an effort to strike at the Hezbollah movement, which has op

of Lebanon to attack and kill Israeli nationals.84 Similarly, in early 2

launched a major military ground operation, as well as airstrikes, again

fighters in the Gaza Strip.85 In neither instance did the principal UN orga

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the conduct unlawful self

defense. The United States undertook an airst

Syria in October 2008 reportedly to stem the flow of foreign fighters an

from that country into Iraq.86 As is the case for most customary law on 

bellum norms, it is not possible to demonstrate through widespread and 

State practice that the concept of self-defense embraces action against no

tors, but the better view appears to be that it does.

Are the US Cross-Border Actions Necessary and Proportionate Defensive 

Although Article 51 of the UN Charter does not expressly require that se

be undertaken only as necessary and proportionate to the threat faced, 

straints present in customary international law on the use of force 

deemed applicable to the post-Charter jus ad bellum. As the Internationa

Justice has stated:

The submission of the exercise of the right of self-defence to the conditions of n

and proportionality is a rule of customary international law. As the Court stat

case concerning Military and Paramilitary Activities in and against N

(Nicaragua v. United States of America): there is a “specific rule whereby self

would warrant only measures which are proportional to the armed att

necessary to respond to it, a rule well established in customary international law

Reports 1986, p. 94, para. 176). This dual condition applies equally to Article 

Charter, whatever the means of force employed.87

In considering whether force is “necessary,” the International Court 

and scholars typically first consider whether there are peaceful alternati

defense, such as pursuing available diplomatic avenues.88 This might en

mining whether the attacker has been asked to desist from further atta

make reparation for injuries it has caused. Assuming that no reasonable 

means exist, the concept of “necessity” focuses on the nature of the targ

by the defender; where the target is the source (or one of the sources) of 

to the defender, it is considered necessary defense to attack that target. “

does not require a defender to limit itself to actions that merely repel an 

tack; a State may use force in self-defense to remove a continuing threa

security,89 such as pursuing action against Japan in the 1940s until its m

gime had capitulated. An example of a lack of necessity may be seen in th

tional Court of Justice’s Oil Platforms case, where the Court found that t

States did not complain to Iran about the military activities allegedly u

from the platforms, nor prove that the platforms were the source of th

the United States in the Gulf such that attacking them was necessary for 

ing that threat.90

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Proportionalitydoes not require that the force be a mirror image of 

attack, or that the defensive actions be restricted to the particular geogra

tion in which the initial attack occurred. Rather than focus on the form, 

or strength of the initial attack, proportionality calls for assessing the res

for eliminating that threat and the means being used to achieve that r

suggested by Professor Roberto Ago, a rapporteur for the International 

mission on the rules of State responsibility and later judge on the Int

Court of Justice, “[I]n the case of action taken for the specific purpose 

and repelling an armed attack, this does not mean that the action shoul

or less commensurate with the attack. Its lawfulness cannot be measured 

its capacity for achieving the desired result.”92 Such reasoning is reflected 

tional military manuals adopted by many States; for instance, the US Com

Handbook on the Law of Naval Operations indicates that proportionality 

“requirement that the use of force be in all circumstances limited in int

ration, and scope to that which is reasonably required to counter the 

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 w

that a shore-based missile had been launched by Iran against a US flag ve

portionate defensive response could include destroying an Iranian oi

elsewhere in the Gulf, so long as the platform was shown to be engaged i

attacks on US vessels in the Gulf. In other words, the Court found that 

tionate defensive response to a missile attack on a vessel was not limited 

tion of a missile attack in response, nor limited to the targeting of the fa

which the missile was launched. At the same time, the Court stated that, 

tion where the attack consists of the single mining of a ship (which wa

but not sunk), a defensive response that destroys numerous vessels and 

the attacker, as well as oil platforms, is disproportionate in scale to th

While one might argue about the Court’s treatment of the facts in tha

thrust of the Court’s dicta was to consider the nature of the threat bein

the defender and whether the defensive conduct, by its nature and scal

signed to eliminate that threat. Similarly, in Armed Activities on the Terr

Congo, the Court indicated that the armed “taking of airports and to

hundreds of kilometers from [the defending State’s] border would not 

portionate to the series of transborder attacks it claimed had given rise t

of self-defence, nor to be necessary to that end.”95

In considering the necessity and proportionality of US cross-border o

against Pakistan, it is important to focus on the two preceding threats t

to have prompted those operations: the attacks of 9/11 and the more rec

border attacks from Pakistan into Afghanistan.

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First, the Al Qaeda attacks of 9/11 serve as a preceding 

armed attac

the United States triggering a right of self-defense in the form of oper

signed to remove the threat of Al Qaeda. Given that for years the United 

demanded that Al Qaeda desist from its activities and had sought extradi

Laden and his lieutenants from Afghanistan, and given that the 9/11 at

attributable to planning, training and funding emanating from Afghani

defensive response taken against Al Qaeda personnel and camps in Afg

properly regarded as both necessary and proportionate.97

Yet most international observers or courts would likely find that the s

true with respect to the ability of the United States to pursue defensi

against Al Qaeda across a national boundary into Pakistan or any othe

Here the use of force in self-defense in response to the attacks of 9/11 w

be seen as both unnecessary and disproportionate, principally because Pa

third country that in no sense harbored Al Qaeda elements at the time of 

use of force is unnecessary given Pakistan’s stated willingness to ally itse

United States in its counterterrorism efforts to strike at Al Qaeda. T

States no doubt disagrees and distrusts aspects of Pakistani policy on h

engage in counterterrorism; yet those disagreements alone do not provid

justification for the United States to engage in unilateral uses of force in 

While working in conjunction with the Pakistani government is no dou

cult diplomatic challenge, most observers would likely say that it is an 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 P

response to the 9/11 attacks would be found disproportionate, in that 

and temporal displacement of the threat of Al Qaeda to a different nat

duces important competing values, to wit the territorial integrity and p

dependence of a nation that did not knowingly support, sponsor or t

Qaeda in the years preceding 9/11. The violence that invariably accomp

lateral uses of force, even those taken in self-defense, intrudes severely in

ues of peace and stability to which Pakistan is entitled under the jus ad b

does so without justification when the targeted State bears no responsibi

initial armed attack against which defensive action is being deployed.99 C

Osama Bin Laden were to turn up in a nation such as Bulgaria or Tunisi

cumstance would introduce multiple new variables for any proportiona

sis, such that the United States could not rely on the same analysis tha

intervening in Afghanistan in 2001. The same holds true for Pakistan

standing its existence as a neighbor to Afghanistan.

A final consideration is that, arguably, the threat to the United Stat

Qaeda itself has changed since 9/11; the Al Qaeda now in Pakistan is a co

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reduced and weakened entity, one forced to hide out in the hills, with d

sustaining the same infrastructure it operated in Afghanistan. Some ob

Al Qaeda as having mutated into an almost headless hydra, such that the 

of attacks to the United States now largely lies in numerous cells locat

wide.100 If so, then the elements of Al Qaeda present in Afghanistan, 

Osama Bin Laden, remain dangerous, but may not be seen as operationa

ening the United States in the same manner as they did in 2001. As such, 

sive action that may be taken against those elements, in order to be prop

could be viewed as of a lesser magnitude than what was regarded as perm

the immediate aftermath of 9/11. Not all analysts, however, see the th

Qaeda as having changed so significantly since 9/11. While there may 

level probability that al Qaeda will be able to attack the United States i

five years,” Al Qaeda even based along the Afghan-Pakistani border is s

train personnel for and direct attacks abroad, such as the July 2005 Lond

ings, the foiled August 2006 plot in the United Kingdom to blow up U

with liquid explosives and Al Qaeda attacks in Iraq.101

Could circumstances change in Pakistan that might generate a consen

able to the unilateral resort to armed force in Pakistan against Al Qaeda b

latter represents a broad threat to US national security? Certainly if the 

cumstances arose as existed at the time of 9/11—with a radical Islamic go

in Islamabad, one hostile to the United States and with close connect

Qaeda, resulting in a major Al Qaeda attack on the United States—then 

eral use of force in self-defense against Al Qaeda in Pakistan would likely 

justified, just as it was in Afghanistan in 2001. A more difficult question 

whether such force would be justified in the period prior to Al Qaeda in 

attack on the United States, perhaps due to highly credible information c

an imminent attack. At present, however, Pakistan simply is not like A

under the Taliban in 2001, and it is hoped that with proper support 

United States and other allies, and avoidance of tactics that fuel militancy

will not descend to that level.

The second type of preceding armed attack are the cross-border raid

tants from Pakistan, principally Taliban but with support from Al Qaed

US and coalition forces and the Afghan government in Afghanistan. Her

bellum requirements of necessity and proportionality do not lend the

broad conclusions, but do provide guidance for analyzing confrontatio

arise along the border. For example, the necessity of US forces reacting 

sions by militants from Afghanistan will turn in part on whether the Un

has pursued and continues to pursue all avenues possible to obtain Pak

ernment support for preventing such incursions. Responses by US 

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militant incursions will be regarded as necessary if it is evident that Pak

thorities are unwilling or unable to stem such incursions from their terr

ther, responses by US forces that react to an actual raid by mili

Afghanistan likely will be regarded as more necessary than those that ac

dict anticipated incursions, given that there is always uncertainty as to w

anticipated event will actually occur. Responses by US forces that reac

sions by directly and immediately targeting those militants, using force o

rable nature and scale, likely will be regarded as more proportionate than 

that target other militants in other places and times, using force of co

greater magnitude, though even the latter can be proportionate if desig

move the overall threat of cross-border incursions from Pakistan.

A perhaps harder question concerns the necessity and proportionali

ing at Al Qaeda officials, camps or convoys as a response to Al Qaeda’s s

militant cross-border raids into Afghanistan. Such attacks are more rem

porally and spatially from the cross-border raids by militants. Yet if A

providing training and other support for such raids, and in some insta

commanding them, then most observers would likely regard it as propo

the threat posed to respond by attacking persons and entities behind-th

rectly associated with the raids. The facts of Al Qaeda’s association w

cross-border raids would have to be well understood and the acts of se

by the United States against Al Qaeda, in order to be proportionate, wou

be designed to prevent that association. As for whether such actions are 

they are not necessary in the sense of providing immediate defense to U

Afghanistan who are under attack, but they are necessary if it can be show

the absence of such actions, the cross-border raids from Pakistan will c

The distinction drawn here may seem meaningless, if it allows the Un

to strike at Al Qaeda not for purposes of responding to 9/11, but instea

poses of responding to Al Qaeda’s association with cross-border raids int

istan. Yet the point is that while jus ad bellum requirements of proportio

necessity do not preclude US cross-border operations in response to ra

itants from Pakistan, nor attacks on Al Qaeda elements in support of th

those requirements will likely be regarded as conditioning the manner in 

US operations may be conducted. Rather than testing the necessity an

tionality of US operations against the threat posed by Al Qaeda from its 

9/11, they must be tested against the threat posed by Al Qaeda in its a

with the cross-border raids, which, depending on the facts, can lead to co

differences in the scope and intensity of US measures that may be unde

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US Cross

Border Action Taken in SelfDefense against Pakistan

At present, the United States has not regarded Pakistan itself as posing 

the security of the United States, but this may change in the future. As 

above, while the Pakistani government’s relationship with militant act

western part of Pakistan is obscure, it is reasonably clear that Pakistan

and objectives are not fully synchronized with those of the United State

Pakistani officials seem to have no particular sympathy for Al Qaeda, t

not uniformly true with respect to Tehrik-e-Taliban Pakistan. Over t

stan’s tolerance if not support for Tehrik-e-Taliban Pakistan may lea

level of indirect support for Al Qaeda, which would place Pakistan at co

odds with US interests.

The jus ad bellum disfavors action taken in self-defense against a go

that is simply associated with a malfeasant non-State actor. The lesson o

ragua case is that when a State simply harbors or even funds a bad acto

bad actor engages in an act of extreme violence against another State, the 

is not viewed as itself having committed an armed attack against the atta

Rules of State responsibility on the attribution of conduct to a State wou

the host State itself to order the bad actor to engage in the violent condu

power the bad actor to act on the State’s behalf, to endorse the violent c

perhaps to fail to prevent the violent conduct knowing that it was about 

and having the means to prevent it.102 As such, imputing the armed att

Qaeda or of the Taliban as being armed attacks of Pakistan would be a 

leap, at least in the absence of far greater connections between the Pak

ernment and those militants than is presently understood to exist.

Conclusion

To date, US cross-border operations from Afghanistan into Pakistan h

three forms: the use of Predator drones to target Al Qaeda fighters (alth

drones may be launched solely from within Pakistan); the “hot pursui

tants who engaged in raids from Pakistan against US and allied forces in 

stan, as well as the Afghan government; and the deployment of special o

forces into Pakistan as a means of striking at Al Qaeda.

These types of cross-border operations clearly implicate the jus ad 

that they entail one State projecting highly coercive military force int

State. Arguably Pakistan has consented to at least some of these types of cr

operations, but that consent is poorly documented, suffers from the c

and diffuse sources of authority within the Pakistani government, and 

may not endure given the vicissitudes of Pakistani domestic politics

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though consent is a powerful and useful basis for supporting the lega

cross-border operations, other justifications should be considered as we

Assuming Pakistani consent is lacking, other justifications for US cro

operations must be considered. The UN Security Council has on several 

addressed the legality of foreign forces in Afghanistan. Yet the Security 

Chapter VII resolutions are best seen as either authorizing the presence 

national force designed to stabilize Afghanistan (without having as i

counterterrorism operations, let alone operations outside Afghanistan)

recognizing the inherent right of self-defense of the United States and its 

inherent right of self-defense (individual and collective) does justify US cr

operations that respond to raids by militants from Pakistan into Afgha

long as the US operations remain necessary and proportionate to the 

those raids, and so long as the Afghan government consents to the prese

forces. Such self-defense would also support unilateral uses of US force 

Qaeda in Pakistan, in the form of either covert operations by special forc

the launching of Predators from Afghanistan to strike at targets in Pakist

as it can be shown that those Al Qaeda targets are ones that are supp

cross-border raids into Pakistan, and so long as Pakistan is unwilling or 

prevent Al Qaeda’s support for those raids.

A broader right of self-defense against Al Qaeda targets in Pakistan ba

attacks of 9/11, however, is far more problematic, since the requirement

sity and proportionality likely preclude unilateral uses of force against a 

that was not implicated in those attacks. In general, the jus ad bellum 

important rights of a defending State to maintain its security against the v

a non-State actor, but those values must coexist with the rights of othe

their own security, rights that are not lost simply because the remnants o

ous non-State actor turn up on their territory. While circumstances may 

the future that could justify unilateral uses of US force against Pakist

broader threat Al Qaeda poses to the United States, the jus ad bellum at p

quires the United States, when pursuing that objective, to cooperate wit

ernment of Pakistan in finding and neutralizing Al Qaeda, not launch 

attacks through covert missions and missile strikes by the United Stat

Pakistani consent.

Notes

1. See Congressional Research Service, Pakistan-U.S. Relations 24 (Aug. 25, 200

at http://www.fas.org/sgp/crs/row/RL33498.pdf [hereinafter “CRS Report”]; Ann S

Gates Is Pessimistic on Pakistani Support, WASHINGTON POST, Sept. 24, 2008, at A1

comments of Senators Carl Levin and John Warner).

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yppp

3. See Polly Nayak, The Impact of Pakistan’s and Bangladesh’s National Strategie

terests, in STRATEGIC ASIA 2008–09: CHALLENGES AND CHOICES 297, 318–20 (Ash

Merch Kuo & Andrew Marble eds., 2008).

4. For instance, Pakistan might invoke against the United States the 1959 bilate

Friendship and Commerce, U.S.-Pak., Nov. 12, 1959, 12 U.S.T. 110, which provides 

tional Court of Justice jurisdiction when disputes arise. Iran and Nicaragua have b

similar treaties against the United States in response to US military or paramilitary 

5. See Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.

6. The exact mechanism for applying the crime of aggression in a given circum

yet known, though ICC jurisdiction might be triggered based on decision making a

self (without affirmative action at the Security Council) in circumstances where th

gression is undertaken from or against a party to the Rome Statute. At present, Afgh

party to the Rome Statute, while the United States and Pakistan are not. SeeInternati

nal Court, Assembly of States Parties, available at http://www.icc-cpi.int/asp/statespa

7. See PERCY SYKES, SIR MORTIMER DURAND 200–17 (1956); MARTIN EWANS

STAN: A NEW HISTORY 106–07 (2002).

8. See OWEN BENNETT JONES, PAKISTAN: EYE OF THE STORM 137 (2003) (“Ever 

tion, Kabul has argued that the Durand Line was never meant to be an internation

and has complained that it deprived Afghanistan of territory that had been historica

control”).

9. For a more detailed discussion of these points and the history of the border

R. Rubin & Abubakar Siddique, Resolving the Pakistan-Afghanistan Stalemate, US 

Peace Spec. Rep. 176 (Oct. 2006), available at http://www.usip.org/pubs/specialre

.html.

10. See RIZWAN HUSSAIN, PAKISTAN AND THE EMERGENCE OF ISLAMIC MILITA

GHANISTAN 55–92 (2005).

11. The graphic appears in Seth Jones, Counterinsurgency in Afghanistan, RAND 

surgency Study Vol. 4, at 45 (June 9, 2008), available at http://www.rand.org/pubs/m

2008/RAND_MG595.pdf, and is reprinted with permission of RAND Corpora

Monica, CA.

12. See Eric Schmitt & Mark Mazzetti, Pakistan’s Planned Accord With Militants A

NEW YORK TIMES, Apr. 30, 2008, at A10; see also CRS Report, supra note 1, at 20–21; 

note 11, at 43–44; National Intelligence Council, National Intelligence Estimate: T

Threat to the US Homeland 6 (July 2007), available at http://www.dni.gov/pre

20070717_release.pdf.

13. US cross-border operations at issue in this paper are focused on the FATA reg

North West Frontier Province (NWFP) or Baluchistan. It should be noted, howeve

stani militants have also begun holding territory (and attacking Pakistani military 

ment targets) in certain areas of the NWFP.

14. SeeJones, supra note 11, at 58–59 (“Afghan insurgents used Pakistan as a sta

offensive operations. Taliban insurgents that operated in the southern Afghan p

Kandahar, Oruzgan, Helmand, and Zabol had significant support networks in su

provinces as Baluchistan and the Federally Administered Tribal Areas, in

Waziristan. . . . The Taliban conduct much of their financing and recruiting opera

Pakistani side of the border”).

15. See id. at 38, 50–51.

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the assassination of former Pakistani Prime Minister Benazir Bhutto in December 2

October 2008, unconfirmed reports began circulating of Mehsud’s death from illne

17. See Jones, supra note 11, at 46.

18. Id. at 62–63.

19. Quoted in Peter Bergen, Assessing the Fight Against Al Qaeda, Testimony 

House Permanent Select Committee on Intelligence, at 8 (Apr. 9, 2008), availab

www.fas.org/irp/congress/2008_hr/040908bergen.pdf.

20. See Tyson, supra note 1, at A16 (reporting testimony of General Cartwrig

Jones, supra note 11, at 64–65 (“The use of suicide attacks was encouraged by al Qae

Pakistan .... Suicide bombers included Afghans, Pakistanis, and some foreigners. M

bombers through 2007 came from Afghan refugee camps in Pakistan”).

21. Jane Perlez, Pakistan Defies U.S. On Halting Attacks, NEW YORK TIMES, May 

A6 (referring to NATO and US sources); CRS Report, supra note 1, at 31.

22. SeeJones, supra note 11, at 65; see also Bergen, supra note 19, at 7 (“The use o

tacks, improvised explosive devices and the beheadings of hostages—all techniques t

perfected in Iraq—are methods that the Taliban has increasingly adopted in Afghan

ing much of the south of the country a no-go area”).

23. See HUSAIN HAQQANI, PAKISTAN: BETWEEN MOSQUE AND MILITARY 301

CRS Report, supra note 1, at 26–27; Jones, supra note 11, at 59–60.

24. See Jones, supra note 11, at 56 (finding that parts of the Pakistani governmen

members of the Inter-Services Intelligence Directorate and Frontier Corps, provid

the Taliban in Pakistan); CRS Report, supra note 1, at 23; Ann Scott Tyson, Border 

War in Afghanistan, WASHINGTON POST, Apr. 4, 2008, at A1 (quoting a frontline U

saying the “Frontier Corps might as well be Taliban . . . . They are active fa

infiltration”).

25. See Jones, supra note 11, at 21.

26. See CRS Report, supra note 1, at 27–28; Jones, supra note 11, at 57–58

Mazzetti, supra note 12, at A10; see also Ismail Khan & Carlotta Gall, Pakistan Lets T

Keep Control Along Border, NEW YORK TIMES, Sept. 6, 2006, at A8.

27. SeeJoby Warrick, U.S. Officials: Pakistani Agents Helped Plan Kabul Bombing

TON POST, Aug. 1, 2008, at A1, available at http://www.washingtonpost.com/wp-d

article/2008/08/01/AR2008080100133.html; CRS Report, supra note 1, at 25; Jones

11, at 54–57.

28. See Craig Whitlock, In Hunt for Bin Laden, a New Approach, WASHINGTON 

10, 2008, at A1.

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 

Committee, stated publicly that unmanned Predator aircraft engaging in attacks in 

flown from an air base in Pakistan, marking the first time a US official had publicly 

on where the Predator aircraft patrolling Pakistan take off and land. See Greg Mill

Comment on U.S. Drones Likely to Embarrass Pakistan, LOSANGELES TIMES, Feb. 13, 2

32. See CRS Report, supra note 1, at 36; Robin Wright & Joby Warrick, U.S. Step

eral Strikes in Pakistan, WASHINGTON POST, Mar. 27, 2008, at A1.

33. See Whitlock, supra note 28.

34. See Officials Report Airstrike, WASHINGTON POST, Oct. 27, 2008, at A10.

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Concerns in the War on Terror and the Damadola Incident, 14 WILLAMETTE J

INTERNATIONAL LAW & DISPUTE RESOLUTION 49, 51 (2006).

36. See, e.g., Reza Sayah, Pakistan fury over U.S. ‘hot pursuit’ act, CNN, June 11, 

www.cnn.com/2008/WORLD/asiapcf/06/11/pakistan.troops.killed/index.html.

37. See Carlotta Gall & Eric Schmitt, Pakistan Angry as Strike by U.S. Kills 11 So

YORK TIMES, June 12, 2008, at A1; CRS Report, supra note 1, at 34–35. In at least o

Pakistani military forces may have fired warning shots to prevent US troops from 

border into Pakistan. See Candace Rondeaux, Pakistan Allegedly Repulses U.S. Raid

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 

NEW YORK TIMES, Sept. 11, 2008, at A1.

42. Id.; Whitlock, supra note 28, (reporting that “U.S. commandos crossed fro

stan into Pakistan in helicopters and killed about 20 people in a suspected Taliban co

South Waziristan”). The rules of engagement for special operations forces operating 

stan are classified.

43. See Naylor, supra note 2 (quoting an unnamed US government official that th

“strategic miscalculation”).

44. UN Charter art. 2(4).

45. See, e.g., International Law Commission, Articles on Responsibility of States 

tionally Wrongful Acts art. 20, in Report of the International Law Commission, Fifty-t

U.N. Doc. A/56/10 (2001) (“Valid consent by a State to the commission of a given ac

State precludes the wrongfulness of that act in relation to the former State to the ex

act remains within the limits of that consent”).

46. See, e.g., Oscar Schachter, The Right of States to Use Armed Force, 82 MICHIG

VIEW 1620, 1644–45 (1984) (seeing no violation of UN Charter Article 2(4) “wh

force is invited by the government to help put down an attempted coup or assist in r

and order”).

47. See Tyson, supra note 1, at A16 (reporting testimony of Secretary of Defens

48. See Whitlock, supra note 28; Eric Schmitt & David E. Sanger, Pakistan Shift C

Drone Strikes, NEW YORK TIMES, Feb. 22, 2008, at A1 (reporting that “American offic

a quiet understanding with Pakistan’s leader last month to intensify secret strikes 

pected terrorists by pilotless aircraft launched in Pakistan”).

49. See Schmitt & Mazzetti, supra note 41.

50. See CRS Report, supra note 1, at 34 (“Permission for U.S.-led attacks on forc

command of militant leaders . . . is not overtly forthcoming to date”).

51. SeeJane Perlez, Pakistan’s Military Chief Criticizes U.S. Over a Raid, WASHIN

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 

Kayani over the permissibility of the September 3, 2008 cross-border special forces 

54. See, e.g., JONES, supra note 8, at 34–35.

55. WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONA

(1964).

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malia in 2006 for the purpose of suppressing the Union of Islamic Courts (UIC). Wh

vention was conducted at the request of the Somali Transitional Government, whi

established with the backing of the United Nations, the African Union and the Arab 

transitional government controlled only a small portion of southern Somalia at the 

intervention, while the UIC controlled the Somali capital and much of the rest of 

“In such a fragile situation and in a crisis mainly of an internal nature, military inte

invitation may be very controversial indeed . . . .” Zeray W. Yihdego, Ethiopia’s Mi

Against the Union of Islamic Courts and Others in Somalia: Some Legal Implications, 5

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. 1

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

59. See MICHAEL J. MATHESON, COUNCIL UNBOUND: THE GROWTH OF UN 

MAKING ON CONFLICT AND POSTCONFLICT ISSUES AFTER THE COLD WAR 157 (20

60. Agreement on Provisional Arrangements in Afghanistan Pending the Re-es

of Permanent Government Institutions, annex 1, Dec. 5, 2001, printed in Letter date

ber 2001 from the Secretary-General addressed to the President of the Security Co

Doc. S/2001/1154 (2001).

61. S.C. Res. 1386, ¶ 1, U.N. Doc. S/RES/1386 (Dec. 20, 2001).

62. Id. at ¶ 10. The Security Council also subsequently created a very modest UN 

Mission in Afghanistan of fewer than two thousand persons (mostly Afghan nation

with assisting the Afghan government in rebuilding the country and strengthening 

tions of peace and constitutional democracy.

63. Military Technical Agreement, Afghan.-ISAF, Jan. 4, 2002, available at 

.operations.mod.uk/isafmta.pdf. After NATO assumed control of the ISAF, a furt

agreement was concluded between NATO and the Afghan government on Decemb

64. S.C. Res. 1413, ¶ 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 

a period of twelve months beginning October 13, 2008).

66. S.C. Res. 1510, ¶ 1, U.N. Doc. S/RES/1510 (Oct. 13, 2003).

67. See NATO Press Release, Revised Operational Plan for NATO’s Expanded 

Afghanistan (updated July 4, 2007), available at http://www.nato.int/issues/afghani

index.html; see also MATHESON, supra note 59, at 116.

68. UN Charter art. 51.

69. See, e.g., Jordan J. Paust, Use of Armed Force against Terrorists in Afghanista

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 (He

David Rodin eds., 2007); W. Michael Reisman & Andrea Armstrong, The Past and F

Claim of Preemptive Self-Defense, 100 AMERICAN JOURNAL OF INTERNATIONAL LAW 

26, 547–48 (2006) (finding that “the International Court of Justice and most intern

yers have steadfastly insisted on the strict application of the Charter regime” and that 

of the more recent statements [of governments] seem to contemplate or claim a ri

preemptive attacks against other states”).

72. See, e.g., CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 

2004).

73. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 103–04 

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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 R

Defence,7JOURNAL OF CONFLICT & SECURITY LAW 1, 7 (2002) (arguing that “[t]he 

tion of the terrorists attacks on New York and Washington as an ‘armed attack’ withi

ing of article 51 is problematic to say the least .... Self-defence, traditionally speakin

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 Palestinia

Advisory Opinion, 2004 I.C.J. 136, 194 (July 9).

79. See, e.g., Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opin

Dixit from the ICJ?, 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 62 (2005); see 

DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 192 (3d ed. 2001) (stating that “f

attack to justify counter-measures of self-defense under Article 51, it need not be co

another State”); Rein Müllerson, Jus ad Bellum and International Terrorism, in INTE

LAW AND THE WAR ON TERROR 75, 107, 109 (Fred L. Borch & Paul S. Wilson eds., 

79, US Naval War College International Law Studies) (finding that “terrorism belon

main of jus ad bellum as terrorist attacks may constitute a specific, non-traditional . . 

armed attack that gives rise to the right of self-defense . . .” and “the right to self-defen

cludes measures undertaken against non-state entities”).

80. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Ug

I.C.J. 168, 223 (Dec. 19).

81. Id., Separate Opinion of Judge Kooijmans, para. 28; id., Separate Opini

Simma, para. 11.

82. See, e.g., Alissa J. Rubin & Sabrina Tavernise, Turkish Planes Strike Iraqi Kur

YORK TIMES, Feb. 5, 2008; Sabrina Tavernise & Richard A. Oppel Jr.,After 8 Days, Tu

Troops Out of Iraq, NEW YORK TIMES, Mar. 1, 2008, at A8.

83. See Organization of American States, Convocation of the Meeting of Consulta

isters of Foreign Affairs and Appointment of a Commission,CP/Res. 930 (1632/08) (Ma

84. See Andreas Zimmerman, The Second Lebanon War: Jus ad Bellum, Jus in B

Issue of Proportionality, 11 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 99 

man Rights Watch, Civilians under Assault: Hezbollah’s Rocket Attacks on Israel in th

(Aug. 29, 2007), http://hrw.org/reports/2007/iopt0807/.

85. See Griff Witte, 60 Gazans Killed in Incursion By Israel, WASHINGTON PO

2008, at A1.

86. See Ernesto Londono, U.S. Airstrike Allegedly Kills 8 Inside Syria, WASHING

Oct. 27, 2008, at A9.

87. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

245 (July 8).

88. See, e.g., DINSTEIN, supra note 79, at 237.

89. SeeJUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORC

4–8 (2004).

90. See Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 196–98 (Nov. 6).

91. See GARDAM, supra note 89, at 8–19; see also Enzo Cannizzaro, The Role of Pr

in the Law of International Countermeasures, 12 EUROPEAN JOURNAL OF INTERNAT

889, 892 (2001) (finding that “even responses greatly exceeding the magnitude of 

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necessary to terminate it”).

92. Roberto Ago, Addendum to Eighth Report on State Responsibility, U.N. Doc. 

& Add. 104 (1979).

93. ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW 

OPERATIONS § 4.3.2 (A. Ralph Thomas & James C. Duncan eds., 1999) (Vol. 73, US 

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 U

TIONS SECURITY COUNCIL AND WAR: THE EVOLUTION OF THOUGHT AND PRAC

1945 (Vaughan Lowe, Adam Roberts, Jennifer Welsh & Dominik Zaum eds., 2008)

97. See Müllerson,supra note 79, at 109 (finding that when “terrorists operate fro

tory of a state and that state is unable or unwilling to end the terrorist acts, milita

other states directed at the terrorists within the state where the terror operations are 

from can be justified as a state of necessity”) & 113 (stating that “[o]nly the refusal of 

regime to comply with US demands and their active defense of the Qaeda network le

of force in self-defense against both al Qaeda and the Taliban”).

98. For policy recommendations on US support to Pakistan for counterinsurg

tions, see Bergen, supra note 19, at 22.

99. See GREGOR WETTBERG, THE INTERNATIONAL LEGALITY OF SELF-DEFEN

NON-STATE ACTORS 221 (2007).

100. See, e.g., Lieutenant General Michael D. Maples, US Army Director, Defense 

Agency, Current and Projected National Security Threats to the United States, Statem

Record before the Senate Armed Services Committee, at 8 (Feb. 27, 2007), availab

armed-services.senate.gov/statemnt/2007/February/Maples%2002-27-07.pdf (“In 

Qaida remained a loose network, broadly defined by the strategic objective of re-

their version of an Islamic caliphate, and unified by a common ideology rooted in th

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; Müllerson, supra note 79

dicating that “if the territorial state, which has itself been unable to prevent terrori

other states or their nationals and interests, resists the victim-state (or its allies) in th

eliminate the terrorists, it itself becomes an accomplice to the terrorist organizat

(stating that “[o]nly the refusal of the Taliban regime to comply with US demands a

tive defense of the al Qaeda network led to the use of force in self-defense against bo

and the Taliban”).

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VI

Legal Issues in Forming the Coalitio

Alan Cole*

“’Tis our true policy to steer clear of permanent alliances, with any po

the foreign world.”

George Washington, on leaving of

“Personally I feel happier now that we have no allies to be polite to 

pamper.”

King George VI, on hearing Bri

alone against Hitler, J

Unlike George Washington and George VI, those who contemp

tary action in Afghanistan in 2001 were eager to be part of a broa

and committed coalition. As well as the obvious practical benefits in term

tional military assets and the crucial staging and basing support, they w

Taliban and al Qaeda to know that the resolve to defeat them stretched 

continents and many governments. The attacks of September 11, 2001 w

traordinary in both scale and ferocity that no nation was likely to hesitate 

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 gener

sus among its members: consensus on the horror of the attacks of 9/11, 

on the fact that they represented an armed attack for the purposes of A

* Commander, Royal Navy. The views expressed in this article are those of the autho

represent those of the Royal Navy, the United Kingdom Ministry of Defence or H

Government.

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consensus that for those in NATO the Article 5 right to act in defe

United States was triggered2 and consensus that there was sufficient 

tween al Qaeda and the Taliban for an invasion of Afghanistan to be a 

sponse. Indeed, it is difficult to find much divergence of approach at 

among those who came to the support of the United States. United Nat

rity Council Resolution 13733 made it quite clear that the inherent rig

vidual and collective self-defense had been triggered.

The United Kingdom’s position, set out in a letter to the United Nat

rity Council on October 7, 2001,4 seems to have reflected the view of mo

who took part in the early stages of the Afghan campaign. It identified t

tack triggered the United States’ inherent right of self-defense and the rig

to act in collective self-defense. That said, the United Kingdom govern

not rely solely on the attacks of September 11, 2001 as a basis for acting in 

self-defense of the United States. It referred also to the need to avert att

the same source in the future, and the continuing threat posed by al Qa

was also reference to the August 7, 1998 attacks on the US embassies in 

and Kenya and the October 12, 2000 attack on the USS Cole at anchor in 

all of which al Qaeda had claimed responsibility. The United Kingdom 

make it clear it was not retaliation it contemplated, but self-defense in res

campaign of international terrorist violence.

The German government, who had until 1994 been constrained from 

troops outside Germany and retained a reputation for being cautious in 

pretation of the international law right to act in self-defense, had no do

lawfulness of US actions. On September 19, 2001, Chancellor Schröder st

[t]he [North Atlantic] Council—like the Security Council—now also re

terrorist attack as an attack on a Party to the Treaty. The attack on the Unite

thus constitutes an attack on all NATO partners. What rights do these decisio

for the United States? Based on the decision of the Security Council, the Unit

can take measures against the perpetrators, organizers, instigators and sponso

attacks. These measures are authorized by international law. And, under the 

the resolution, which further develops international law, they can and may tak

resolute action against States which support and harbour the perpetrators.5

Similarly, there is no evidence that the connection between the perp

the attacks and the government of Afghanistan troubled the coalition me

very long. Most, if not all, were satisfied that the Taliban were the de fac

ment of Afghanistan even if they were not recognized as the legitimate go

by the United Nations. The generally held view was that the Taliban had 

a period of two years to comply with Security Council resolutions6 foll

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bombings of the embassies in Kenya and Tanzania and could be regard

inextricably linked with and sheltering al Qaeda. Certainly the Taliban d

assistance with removing al Qaeda from their territory, nor did they c

publicly. They were given a “last chance” by the United States to surrend

Bin Laden, which they refused.

Early coalition contributions to the invasion of Afghanistan also re

generally held view that this was an international armed conflict. The de

of forces and the details of their rules of engagement (ROE) were bas

premise that this was a conflict between the “coalition of the willing” o

hand and Taliban forces, al Qaeda and the Afghan army on the other. T

doubt that the four 1949 Geneva Conventions7 applied and, for those 

signatories, Additional Protocol I.8

Operation Enduring Freedom (OEF) began October 7, 2001, when 

Bush made the following statement:

On my orders, the United States military has begun strikes against Al Qaeda 

training camps and military installations of the Taliban regime in Afghanista

carefully targeted actions are designed to disrupt the use of Afghanistan as a 

base of operations, and to attack the military capability of the Taliban regime

joined in this operation by our staunch friend, Great Britain. Other close 

including Canada, Australia, Germany and France, have pledged forces 

operation unfolds. More than 40 countries in the Middle East, Africa, Eur

across Asia have granted air transit or landing rights. Many more have 

intelligence. We are supported by the collective will of the world.9

President Bush’s words set the scene for a coalition of broad internat

and substantial military depth: the Afghan government had few friends 

ternational community. The coalition enjoyed rapid success and by N

2001 the Taliban had evacuated Kabul, melting back into the Pushtun p

southern Afghanistan and the Pakistani tribal areas. With this short-ter

objective complete, attention (particularly in Europe) turned to the form 

pose of an enduring presence in Afghanistan. It is at this point that th

understandings of the legal basis for presence, use of force, detention 

military activity begin to impact more noticeably on the conduct of ope

Operation Enduring Freedom and International Security Assistanc

Different Missions and Different Legal Frameworks

The United States continued to consider its activities in Afghanistan as o

its Global War on Terror. Although it is not suggested that this term is t

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literally as an indication that the law of armed conflict applied to all re

terrorism, it was clear the United States saw the pursuit of al Qaeda, b

and outside Afghanistan, as primarily a military mission. As such, OE

sented to other militaries as part of a regional international armed confli

ber of the nations that had supported the invasion continued to provid

OEF, including the United Kingdom, Canada and Australia, albeit the

have (and certainly the United Kingdom did not) endorsed the concept o

War on Terror. The OEF mission not only covered all parts of Afghan

stretched across the entire region, although most coalition partners lim

military activity to the territory of Afghanistan. President Bush had set o

lowing aims of the mission on October 7, 2001, and they remained the ba

sion directives and rules of engagement:

By destroying camps and disrupting communications, we will make it more 

for the terror network to train new recruits and coordinate their evil plans. Init

terrorists may burrow deeper into caves and other entrenched hiding pla

military action is also designed to clear the way for sustained, comprehen

relentless operations to drive them out and bring them to justice.10

OEF activity included substantial air operations by forces based b

ghanistan and elsewhere, along with operations on the ground. Certain

tended across the whole of Afghanistan and were often similar in intensi

that formed part of the invasion. The embryonic government in Kab

clearly supported efforts to eliminate remaining al Qaeda and Taliban f

least to secure its own position, was not in a position to supervise or ap

conduct of the military mission. It consented to OEF’s continuation in 

but had no veto or control of particular operations. The business of esta

national democratic government for the first time in the nation’s histo

allow for detailed involvement in OEF operational decisions. The exten

it would have been consulted had it sought to be is not clear. The absenc

involvement by the Afghan government in 2001–2 tends to support th

that OEF remained the expression of an international armed conflict be

OEF forces and the remaining Taliban and al Qaeda forces, albeit the T

al Qaeda were never capable of being high contracting parties for the p

the Geneva Conventions.11

In parallel and following the Bonn conference in December 2001, th

tional Security Assistance Force (ISAF) was established by Security Coun

tion 1386.12 On December 20, 2001, a UK general, Lieutenant General Joh

took command of forces from nineteen nations, including the United 

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United Kingdom, Canada and Australia, that were contributing to OEF. 

nations, including the United Kingdom and Canada, this was the poin

they may have judged that the international armed conflict had come 

The Taliban government had been replaced by one drawn from the Nor

ance, which had itself fought alongside the coalition and was very muc

preferred replacement. That government had sought the assistance of t

Nations in establishing security in its country and provided forces from t

National Army to fight alongside ISAF and against the remaining Taliban

who wished to see it fail.

The ISAF mission was much more narrowly drawn in both geograp

military terms. ISAF forces restricted their operations to Kabul and 

rons:13 they saw their role as the provision of support to the new gove

Kabul in its continuing internal armed conflict with Taliban, al Qaeda a

who sought to overthrow it. The ISAF mission was generally based on se

activity (including the collective defense of Afghan government forces)

exceptional recourse to the use of offensive force under the law of arme

in part this reflected fear of “mission creep.” The characterization of the 

“non-international” also seemed to find favor with the International C

of the Red Cross (ICRC), which, in June 2002, used the same descrip

though positions on the legal basis for operations varied among ISAF co

nations, most relied on a combination of the Security Council Resolutio

consent of the government of Afghanistan. In fact, many contributin

were pleased to distance themselves from the US notion of the Global W

ror, understanding it (rightly or wrongly) to be the concept of an int

armed conflict against international terrorist organizations wherever t

be in the world. They judged counterterrorism to be a law enforcement 

characterized those they engaged under the laws of armed conflict withi

text of the non-international armed conflicts in Iraq and Afghanistan 

had to be members of identified groups that were considered party to t

flicts) as insurgents.

In Afghanistan, the narrower mission of ISAF in supporting the fled

ernment in Kabul, with its wide international support and Security Coun

tion basis, was altogether more palatable for some of the European nation

rarely engaged in expeditionary operations since 1945. It was also a cruci

if that government was to survive. For some NATO nations, uncertainty 

as to whether the remaining operations in Afghanistan amounted to an a

flict and, if so, whether it justified the scale of operations undertaken by 

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Beyond Security Council Resolution 1510: Caution and Cavea

In late 2003, Security Council Resolution 1510 vested command of ISAF 

and extended its remit beyond Kabul. “Stage 1 Expansion,” as it became k

gan in the north and followed a request from the Afghan Minister of Fore

for assistance with security in the wider country. Notwithstanding that N

celebrated its fiftieth birthday some years before, the coalition was now e

the most complex operations in its history. As it became clear there wa

stantial fighting to be done if the conditions for political and physical reco

were to be created, member States found themselves having to determin

they were prepared to commit their militaries in a nation well outside the 

lantic area and on a type of operation that had not been contemplated in 

result was the steady emergence of policy, legal and capability constraint

characterized ISAF operations (although not always hindered them) to th

Targeting

One of the first areas in which differing national appetites became obvi

the targeting process. Although nations were very clear as to their duty t

the collective self-defense of coalition troops who found themselves in co

the enemy, their positions regarding preplanned targeting under the law 

conflict were less consistent. ISAF remained a wholly self-defense mis

2005, but OEF operated a formal target clearance process, designed to e

where force was contemplated against the enemy (“target sets” to use th

jargon) it was going to be used in accordance with the principles set out 

of armed conflict.

The first issue that arose was identifying the enemy. Soldiers who targe

who does not present an imminent threat to their lives15 have to be sat

they are attempting to kill a person who falls within the definition of a c

In the context of a war between States, and in the early days of the Afg

paign, this was a reasonably straightforward matter. The Taliban, al Q

Afghan military were the combatants and tended to fight in conventiona

by 2003, it had become more complex. As well as the fighting elements o

and the Taliban, there were other tribal groups that wished to see the go

in Kabul fail. There were also groups that were apathetic toward the go

but opposed to the presence of foreign troops. Finally there were other

peared to enjoy the support of neighboring States or who had traveled to 

stan to fight. Different nations took different views of whom they wer

with in an armed conflict, so coalition targeting arrangements had to e

the nation that owned the assets likely to be allocated to the particular 

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satisfied that the individuals they were likely to kill were within its own na

derstanding of who was a combatant. It is fair to say that the United Sta

wider view of whom might legitimately be targeted than some of its Europ

The US approach reflected the widespread political and public suppor

while the European position reflected their more cautious national positi

The application of Additional Protocol I to the conflict (and particula

tinued application once the conflict arguably ceased to be an internatio

conflict in June 2002) is an issue that has exercised academic minds bu

impact on the conduct of operations. Those States that are signatories to 

applied it throughout their targeting operations (because it applied as a 

ter of law or because it is their policy to apply it) and those who are not ap

own understandings on the customary international law framework rela

use of force in offensive operations. The application of a uniform targetin

throughout the period from invasion to the current day is for two reason

a matter of national policy, many nations will say that the principles set o

in an international armed conflict, be they in Additional Protocol I or 

similar customary international law, ought to be applied in any offens

tions. It is difficult to make an argument that those who find themselve

collateral damage, for example, in a non-international armed conflict a

to less consideration that those in the vicinity of an international arme

The second reason is a purely practical one. Targeting processes have t

fully constructed to meet international law requirements and to allow 

gets to be engaged as quickly and effectively as possible. Once a proces

put in place, it has to be rehearsed and personnel trained in their roles. T

separate set of standards for a commander to apply (albeit advised by 

lawyer) is simply to overcomplicate the process. The better approach is t

the highest standards that can be said to be applicable (those for an int

armed conflict) and use them for all kinetic targeting operations. Quite a

the practical benefits of the latter approach, it made determination of th

which the conflict changed from international to non-international irr

the tactical commander.

Furthermore, the application of the principle of proportionality vari

States. NATO developed its own position on what was an acceptable leve

eral damage for the air campaign in Afghanistan but some nations took 

strictive view than NATO. Not only did that mean that assets of tho

would not conduct the mission, but officers of those nations embedded 

geting process might be barred from contributing to its success. Although 

a legal entity for contractual and other purposes and was created by tre

not set out a single position on public international law matters which ar

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solely for States. NATO is not, nor can it be, a signatory to the Genev

tions, the Ottawa Treaty or other law of armed conflict treaties, but its m

tions have individual treaty obligations which are reflected in the orga

planning and procedures.

The position was further complicated by the multinational staffs at I

quarters (HQ) and regional HQs. Although brigade-level formations te

wholly or largely from a single nation, thereby making it obvious whic

provisions would apply, HQ staffs were invariably mixed. At ISAF HQ, 

cers of more than ten nations regularly involved in an operation, de

whose caveats applied was not straightforward. In fact, for the military 

sues of State responsibility for the actions of others are some of the mos

that they encounter in coalition operations. The long-standing principle 

dier will not assist a colleague from another nation to carry out an action 

he is forbidden from doing himself is now reflected at the State level in th

tional Law Commission’s Draft Articles on Responsibility of States fo

tionally Wrongful Acts, notably at Articles 16 and 17.16 But even the pub

these Articles, which are not binding, did little to settle an approach to 

Officers of some States when asked to authorize a mission which their na

icy or legal positions prevented their authorizing would take the view 

were required to prevent the mission from taking place, because in the vi

governments it was unlawful. Officers of other States, faced with the s

would choose to step aside and hand their roles to officers whose natio

them to assist. Although this approach reduced the number of operation

thwarted, it required the reorganization of command structures depend

nature of the mission and the nationality of the post holder. The operatio

and targeteer needed to understand not only which nations were barre

sisting, but also whether their officers would thwart the mission or merel

A related issue is the commander’s responsibility for the manner in w

who are of another nationality, but under his command, carry out thei

Putting aside the issue of command responsibility for war crimes, whic

well addressed elsewhere, there remains the issue of the extent to whi

mander is obliged to scrutinize the means by which troops under his 

conduct their mission to ensure they comply with his own national lega

A useful illustration is the use of anti-personnel mines (APM) in respec

many nations are signatories to the Ottawa Convention,17 although the 

example should not be seen as an indication that any nation employed A

ghanistan. Is a commander whose nation has ratified the Ottawa C

(noting particularly the requirement “[n]ever under any circumstances 

sist, encourage or induce, in any way, anyone to engage in any activity p

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to a State Party under this Convention

)obliged to ensure that those 

command do not employ them even if their own nations have not r

Convention?

A parallel example from the maritime environment is the exercise of t

visit. Some nations take the view that the right to visit in the absence of 

legal bases set out in Article 110 of the 1982 Convention on the Law of th

quires the specific permission of the flag State in each instance. Other

that consent to board can be given by the ship’s master. If a naval comma

a nation that requires specific flag State permission wants to have a vess

but is unable to obtain the consent of the flag State, he could direct a ves

tion that permits boardings on the basis of a master’s consent to co

boarding on that basis. Alternatively, on what might be called the restri

he might seek assurances from all vessels under his command that they 

the flag State consent approach for the duration of the time they are unde

mand. Each nation will reconcile these matters in a different way, bu

proach that was seen in the ISAF structure was for the commander simply 

that any mission or direction he gives is capable of being carried out with

nation’s legal commitments and interpretations. Hence, an order by a co

from an Ottawa Convention signatory nation to troops from a non-sig

tion to lay APM would not pass the test, while an order to a ship to co

forcement and search operations in a particular sea area might do so: i

presuppose an activity which the commander is not allowed to carry ou

Detention

The second area in which significant divergence in approach became ev

in respect to detention. Prior to June 2002 (the period in which all coaliti

agreed that the conflict was international in nature), those who were 

might have expected their custody to be governed by the 1949 Geneva 

tions. Combatants other than members of the armed forces of Afghan

have been entitled to prisoner of war status under Geneva Convention I

expectation was that this issue would be resolved by way of Article 5 trib

ICRC persists to this day in the view that the Taliban were not de facto p

war but ought to have had their status properly determined. Those who w

mined not to have been entitled to prisoner of war status ought to have b

cuted. In practice, significant numbers of those captured on the battlef

forces were adjudged to be unlawful combatants and held at US facili

ghanistan or elsewhere.

From June 2002, although the United States continued with the use o

lawful combatant” categorization, the other coalition members moved s

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model which they considered better fit the recategorization of the conflic

international armed conflict. Many ISAF nations were extremely uneasy 

coming involved in any kind of detention operation, and to this day will 

or detain Afghan nationals. Others accepted that the campaign wou

some detention element if it was to succeed and settled on short-term de

behalf of the Afghan government as the preferred concept. In practic

volved detention for short periods (days rather than weeks) to facilitate 

the Afghan National Police or other law enforcement agency. The legal b

tention was, like the basis for presence itself, considered to be the relevan

Council resolutions and the consent of the government of Afghanistan. 

there has never been an explicit authority to detain in the resolutions, th

necessary means,” notably in Resolution 151020 and subsequent resolu

considered to give the requisite authority for detention for the purpo

defense and mission accomplishment. The Afghan government suppo

detention operations, both in political and practical terms, by cooperatin

resting units and providing Afghan National Police to ISAF missions tha

a detention element. Despite these two firm legal bases for detention, m

nations were reluctant to take part in detention operations.

In terms of the legal framework that was judged to govern the det

rangements, Common Article 3 of the 1949 Geneva Conventions, certa

of customary international law and applicable human rights law were m

cited. For most European nations that meant giving consideration to th

tion of the European Convention on Human Rights,21 a regional hum

treaty widely ratified by European States.

The extent of application of the European Convention on Human Ri

ployed operations was (and remains) not entirely clear, but what was clea

start was that some nations considered that it had a bearing on detenti

tions. So far as can be determined, no signatory State took the view th

rights law was suspended during an armed conflict. They took the positio

man rights law, while only capable of binding the State (it does not fo

bind al Qaeda), certainly continues to apply to some extent during arme

a position subsequently approved by the International Court of Justice

the Convention concerns appear to have been a factor in dissuading so

from taking any part in ISAF detention operations. The better view,23 it 

ted, is that the “all necessary means” provision in the Afghan resolutions

implied authority to conduct detention operations for the purposes of ac

ing the mission. That implied authority does not set aside obligations un

cable human rights law but it does give a basis for detention that is not d

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human rights treaties. What the Afghan resolutions certainly did not 

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 i

effect a transfer to the Afghan authorities, those nations who take pa

detentions may hope that by limiting their operations in such a way the

gating the risk of challenge under human rights law.

Conclusion

Given the extraordinary speed with which an ad hoc coalition was form

vade Afghanistan in October 2001 and the wide range of nations that co

to the mission, conflicts in legal positions appear to have been few. Perh

be expected that an attack such as that on September 11, 2001 will cau

ments to set aside concerns about the strict interpretation of the UN 

Charters. Certainly the militaries of coalition nations, which concern t

chiefly with in bello rather than ad bellum issues, were left in no doub

were taking part in an international armed conflict against Afghanista

became clear that ISAF, on the one hand, and OEF, on the other, had d

sions for the nature of operations subsequent to the installation of the 

Alliance in June 2002 as the governing body of Afghanistan, internationa

tions on a number of issues began to diverge. There were concerns then

remain concerns now, that operating two separate missions at two diff

pos in the same country in an attempt to suppress the same enemy is a r

conflict of laws, but the nations that contribute to both missions have 

learned to reconcile the legal differences to ensure they do not prejudice 

Notes

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

Doc. S/RES/1373 (Sept. 28, 2001) expressly authorized the right of self-defense at a t

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 

the attack met the requirements of Article 5 of the Washington Treaty and would be 

an attack on all signatories.

3. S.C. Res. 1373, supra note 1, “Reaffirming the inherent right of individual 

self-defence as recognized by the Charter of the United Nations as reiterated in reso

(2001).”

4. Letter dated October 7, 2001 from the Chargé d’affaires a.i. of the Permanen

the United Kingdom of Great Britain and Northern Ireland to the United Nations a

the President of the Security Council, U.N. Doc. S/2001/947 (2001).

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gp(gp) (

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

RES/1333 (Dec. 19, 2000) and S.C. Res. 1390, U.N. Doc. S/RES/1390 (Jan. 28, 2002), 

Security Council obliged all member States to freeze the assets; prevent the entry into 

sit through their territories; and prevent the direct or indirect supply, sale and tran

and military equipment with regard to individuals and entities belonging or re

Taliban, Osama Bin Laden and the al Qaeda network.

7. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [Geneva Convention I]; Conven

Amelioration of the Condition of the Wounded, Sick and Shipwrecked Member

Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [Geneva Convention II]; Convention Re

Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 [Geneva Conventi

Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 

U.N.T.S. 287 [Geneva Convention IV]; all reprinted in DOCUMENTS ON THE LAW

(Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 222, 244 and 301, respec

8. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S

in DOCUMENTS ON THE LAWS OF WAR, supra note 7, at 422.

9. President George W. Bush, Address to the Nation (Oct. 7, 2001), availab

www.whitehouse.gov/news/releases/2001/10/20011007-8.html.

10. Id.

11. 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 answ

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 thi

broadly reflects the position in most NATO nations.

16. Draft Articles on the Responsibility of States for Internationally Wrongful A

of the International Law Commission on the Work of its Fifty-third Session, U.N. G

Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), available at http://untreaty.un.o

instruments/english/draft%20articles/9_6_2001.pdf.

17. Convention on the Prohibition of the Use, Stockpiling, Production and 

Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, reprinted in DOC

THE LAWS OF WAR, supra note 7, at 648.

18. Id., art.1.1.c.

19. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N

20. S.C. Res. 1510, S/RES/1510 (Oct. 13, 2003).

21. Convention for the Protection of Human Rights and Fundamental Freedo

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. Ug

I.C.J. 116 (Dec. 19).

23. And the one adopted by the European Court of Human Rights in Behrami v. 

Saramati v. France, Germany and Norway, Apps. Nos. 71412/01 and 78166/01, 45 E

41 (2007), available at http://www.echr.coe.int./echr/en/hudoc.

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g pp

U.N. Doc. S/RES/1419 (June 26, 2002); S.C. Res. 1510, supra note 20; and those th

ISAF to the present day.

25. See S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004) and annexed lette

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PART III

THE CONDUCT OF HOSTILITIES

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VII

Afghanistan and the Nature of Confl

Charles Garraway*

Introduction

The story is told of a traveler in the west of Ireland. Thorough

stopped beside a field and asked the farmhand working there how 

Limerick. The answer was somewhat disconcerting: “Well, if I was 

wouldn’t start from here!” There have been times over the last seven y

that phrase has come to mind. Decisions have been made and conseque

followed—none more so perhaps than in the relationship between th

terror” and the law of armed conflict/laws of war. Much of this uncerta

out of the initial conflict in Afghanistan in 2001. While it may not be p

change the start point, it may help to look back and try to ascertain w

where we are. Perhaps then, we will be in a better position to plan tha

Limerick.

The End of the Beginning

Our story has to start somewhere and where better than in the White H

with a presidential decision. On February 7, 2002, President Bush issued 

orandum on the subject of humane treatment of al Qaeda and Taliban d

In paragraph 1, he stated:

* Visiting Professor, King’s College London; Associate Fellow, Chatham House; a

Fellow, Human Rights Centre, University of Essex.

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gg Q

confirm that the application of Geneva Convention Relative to the Treat

Prisoners of War of August 12, 1949, (Geneva) to the conflict with al Qaeda 

Taliban involves complex legal questions. By its terms, Geneva applies to 

involving “High Contracting Parties,” which can only be states. Moreover, it 

the existence of “regular” armed forces fighting on behalf of states. However

against terrorism ushers in a new paradigm, one in which groups with 

international reach commit horrific acts against innocent civilians, sometimes 

direct support of states. Our nation recognizes that this new paradigm – usher

by us, but by terrorists – requires new thinking in the law of war, but think

should nevertheless be consistent with the principles of Geneva.

Although this memorandum was not released to the public until s

later, its effect upon the debates on both the classification of conflicts and 

cation of the laws of war has been immense. No study of Afghanistan

other conflict since 2002 in which the United States has been involved

place without considering the effect of this memorandum. Indeed so piv

become to many of the arguments that now rage over the US position on 

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 

detainees confirm that the application of Geneva Convention Relative 

Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflic

Qaeda and the Taliban involves complex legal questions. By its terms, Genev

to conflicts involving “High Contracting Parties,” which can only be states. M

it assumes the existence of “regular” armed forces fighting on behalf o

However, the war against terrorism ushers in a new paradigm, one in which 

with broad, international reach commit horrific acts against innocent c

sometimes with the direct support of states. Our nation recognizes that t

paradigm – ushered in not by us, but by terrorists – requires new thinking in 

of war, but thinking that should nevertheless be consistent with the prin

Geneva.

2. Pursuant to my authority as commander in chief and chief executiv

United States, and relying on the opinion of the Department of Justice dated 

22, 2002, and on the legal opinion rendered by the attorney general in his 

February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determ

none of the provisions of Geneva apply to our conflict with al Qaeda in Afgh

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g, g , Q

High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Depart

Justice that I have the authority under the Constitution to suspend Ge

between the United States and Afghanistan, but I decline to exercise that aut

this time. Accordingly, I determine that the provisions of Geneva will appl

present conflict with the Taliban. I reserve the right to exercise the authority i

future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determ

common Article 3 of Geneva does not apply to either al Qaeda or Taliban d

because, among other reasons, the relevant conflicts are international in sc

common Article 3 applies only to “armed conflict not of an international cha

d. Based on the facts supplied by the Department of Defense a

recommendation of the Department of Justice, I determine that the 

detainees are unlawful combatants and, therefore, do not qualify as prisoner

under Article 4 of Geneva. I note that, because Geneva does not apply to our 

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 nation

world, call for us to treat detainees humanely, including those who are no

entitled to such treatment. Our Nation has been and will continue to be 

supporter of Geneva and its principles. As a matter of policy, the Unite

Armed Forces shall continue to treat detainees humanely and, to the 

appropriate and consistent with military necessity, in a manner consistent 

principles of Geneva.

4. The United States will hold states, organizations, and individuals w

control of United States personnel responsible for treating such personnel hu

and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the Secretary of Defen

United States Armed Forces requiring that the detainees be treated humanely 

the extent appropriate and consistent with military necessity, in a manner co

with the principles of Geneva.

6. I hereby direct the Secretary of State to communicate my determinatio

appropriate manner to our allies, and other countries and inter

organizations cooperating in the war against terrorism of global reach.

/s/ George W. Bush2

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Learned treatises have been written on almost every part of this mem

in particular on the issue of the application of what the President r

“Geneva” law. However, for the purposes of this article, it is necessary 

beyond the application of the law to the facts. It is the issue of classifica

conflict itself that raises challenges to the existing legal framework. Was 

tion in Afghanistan, and also in the wider context of worldwide terrorism 

ing in part at least from that country, a “new paradigm,” removing it 

framework of law that had been painstakingly constructed over the pre

years? Or was it a mutation of an existing structure and well capable of a

dation within the current framework?

In order to attempt to answer these questions, it is necessary to examin

rent framework and also to examine the legal debate that raged within th

ministration. This memorandum was not the product of a “Eureka m

the Oval Office but the result of a need for a decision by the President 

conflicting legal advice from within the administration itself. As with t

randum itself, much of the debate revolves around classified material

both of evidence and of the written advice itself. There have been leaks an

the advice given, in particular by the Department of Justice, is now in 

domain. Greenberg and Dratel have sought to bring these together in th

lation The Torture Papers: The Road to Abu Ghraib.

3 At a later date, so

State Department advice also came into the public domain. However, it i

the full picture remains locked in the corridors of power and it is unlik

will emerge for some time to come. In the meantime, scholars and ot

make do with what we have.

The History

The factual history is comparatively straightforward. On September 11, 

rorists hijacked four airliners in US airspace and used them as missiles to 

gets in New York (the World Trade Center) and Washington (the Penta

airliner was brought down short of its target when passengers fought to r

trol of the aircraft. Within days, it was apparent that these attacks were 

by al Qaeda, operating primarily out of Afghanistan. Afghanistan at the 

lawless State. Its location had made it a battleground for the power str

tween the British Empire and Russia in the nineteenth century. Altho

fully colonized, it had not regained full independence until after the F

War, in 1919, but even then its history was not a happy one. Since 1973

been a series of bloody coups, culminating in a Soviet invasion after M

Daoud was murdered in 1978. The Soviet forces were themselves 

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withdraw in 1989 and in 1996 the Taliban movement claimed control of 

try and imposed a rigid Shari’a regime. Despite having territorial control 

the country, the Taliban regime was not recognized by the vast majority 

tions of the world and the “officially recognized” government was the No

liance, which remained in control of a small enclave in the north of th

The Taliban had provided support, refuge and facilities for the al Qaed

whose leader, Osama Bin Laden, a Saudi national, had been driven out o

sanctuaries, including Sudan.

On October 7, 2001, following advice on his authority under the US 

tion to conduct military operations “against terrorists and nations s

them”4 President Bush, in conjunction with other allies, launched milit

against both al Qaeda and Taliban targets in Afghanistan. In the letter s

Representative of the United States of America, John Negroponte, to the 

of the Security Council, the United States invoked “its inherent right of 

and collective self-defense following armed attacks that were carried o

the United States on September 11, 2001.”5 After describing the backgro

9/11 attacks, the letter went on to say:

The attacks on September 11, 2001, and the ongoing threat to the United State

nationals posed by the Al-Qaeda organization have been made possible by the 

of the Taliban regime to allow parts of Afghanistan that it controls to be use

organization as a base of operation. Despite every effort by the United States 

international community, the Taliban regime has refused to change its polic

the territory of Afghanistan, the Al-Qaeda organization continues to train and 

agents of terror who attack innocent people throughout the world and targe

States nationals and interests in the United States and abroad.6

While this made clear the connection drawn by the administration b

Qaeda and the Taliban, the letter also contained a slightly more omino

“We may find that our self-defense requires further actions with respe

organizations and other States.”7

The “war on terror” had begun.

The Laws of War

The history of the laws of war had developed in treaty terms since the m

of the nineteenth century. The laws had developed amid the Westpha

ture, where States were the principal subject of international law. Interna

governed relations between States and did not generally concern itself w

ties within States, which were reserved to the jurisdiction of the States th

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War was an activity conducted between States and, as a result, the laws o

applied to such wars.

That does not mean that there was nothing that happened that today 

classified as “terrorism.” However, much of this was inevitably interna

considered beyond the boundaries of international law. Occasionally su

spread across borders and indeed one of the best-known principles in int

law, that of self-defense in the ius ad bellum, the Caroline case, arose ou

border raids by irregulars. This led to the famous exchange of correspon

tween Lord Ashburton, representing the United Kingdom, and the Se

War for the United States, Daniel Webster.8 It is perhaps interesting that 

lesser-known parts of that particular incident was the fate of one 

McLeod, who was arrested and detained by the US authorities for his al

ticipation in the destruction of the Caroline. He was tried, and acquitte

York and indeed it was his detention that led to the exchange of d

correspondence.

As a matter of practice, terrorism had normally been considered a ma

enforcement—at times extraterritorial. It was dealt with by domestic 

than international law and certainly not by the laws of war.

In 1949, the text of the four Geneva Conventions of that year9 extende

of war beyond the traditional inter-State conflict. Conflicts were divide

types. The first were described in Common Article 2 as follows:

In addition to the provisions which shall be implemented in peacetime, the 

Convention shall apply to all cases of declared war or of any other armed confli

may arise between two or more of the High Contracting Parties, even if the sta

is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupatio

territory of a High Contracting Party, even if the said occupation meets with n

resistance.

Although one of the Powers in conflict may not be a party to the present Con

the Powers who are parties thereto shall remain bound by it in their mutual r

They shall furthermore be bound by the Convention in relation to the said Pow

latter accepts and applies the provisions thereof.10

This requires an “armed conflict” between “two or more High C

Parties.” As only States can be High Contracting Parties, this means 

conflicts. However, Article 3 Common to the four Conventions cov

ground:

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g 

of one of the High Contracting Parties, each Party to the conflict shall be b

apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members o

forces who have laid down their arms and those placed “hors de combat” by s

wounds, detention, or any other cause, shall in all circumstances be 

humanely, without any adverse distinction founded on race, colour, religion 

sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time an

place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilatio

treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and de

treatment;

(d) the passing of sentences and the carrying out of executions without p

judgment pronounced by a regularly constituted court, affording all the 

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 

Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by m

special agreements, all or part of the other provisions of the present Conventi

The application of the preceding provisions shall not affect the legal status of th

to the conflict.11

The key elements governing the application of this particular “mini-co

are as follows: (1) “an armed conflict,” (2) “not of an international char

(3) “occurring in the territory of one of the High Contracting Parties.” C

excluded any armed conflict that fell within the confines of Common A

conflict between two or more High Contracting Parties. However, 

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armed conflictremained undefined and it was unclear as to the statu

flict primarily “occurring in the territory of one of the High Contractin

when it crossed over international borders. It should be noted that the o

tention of the International Committee of the Red Cross (ICRC) wa

whole of the Conventions should apply to non-international armed 

Common Article 3 therefore was an irreducible minimum so far as it 

cerned. Attempts were indeed made to define what was meant by “arme

but these were abandoned and it was the view of the ICRC that this “wise

meant that the term should be interpreted “as widely as possible.”12 T

avoiding the application of any threshold test.

Similarly, although the geographic restriction was designed to catch 

there does not appear to have been any intention to exclude conflicts w

border elements. Few conflicts are contained entirely within the bounda

territory and it has generally been considered sufficient if the conflict i

within the territory of a High Contracting Party, even if it does have cer

border features. Many rebel groups operate from “safe havens” on the ot

international borders. Those who argued consistently that Norther

amounted to a Common Article 3 conflict during the “Troubles” of the l

eth century would hardly have been amused to be told that the fact that e

the Irish Republican Army operated from across the border in the Irish 

excluded the application of Common Article 3.

However, regardless of these arguments, what was clear was the divisi

flict into two separate categories. This division was confirmed by the ad

the two Additional Protocols to the 1949 Geneva Conventions in 1977

applied primarily to international armed conflicts as defined by Comm

213 and the second to non-international armed conflicts.14 However, A

Protocol II adopted a much more restricted field of application and a

duced a threshold—a negative definition of what does not amount to 

conflict. Article 1 reads:

1. This Protocol, which develops and supplements Article 3 common to the 

Conventions of 12 August 1949 without modifying its existing condi

application, shall apply to all armed conflicts which are not covered by Article 

Protocol Additional to the Geneva Conventions of 12 August 1949, and re

the Protection of Victims of International Armed Conflicts (Protocol I) an

take place in the territory of a High Contracting Party between its armed fo

dissident armed forces or other organized armed groups which, under resp

command, exercise such control over a part of its territory as to enable them 

out sustained and concerted military operations and to implement this Pro

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ppy 

such as riots, isolated and sporadic acts of violence and other acts of a similar 

as not being armed conflicts.

The higher threshold rules out a number of low-intensity conflicts w

tory is not held by the dissident armed forces and, equally importantly, 

conflict is between dissident armed groups themselves without any invol

the national forces, if they exist. Thus “failed State” conflicts where the 

between rival warlords would normally be excluded from the applicatio

tional Protocol II. However, that does not mean that Common Article 

apply.

For our purposes, it is the lower threshold that is important. “[S]ituat

ternal disturbances and tensions, such as riots, isolated and sporadic a

lence and other acts of a similar nature” are excluded “as not bei

conflicts.” Terrorism was generally deemed to fit within this exclusion. 

lustrated by the statement made by the United Kingdom on ratificatio

tional Protocol I in 1998. It read: “It is the understanding of the United 

that the term ‘armed conflict’ of itself and in its context denotes a situ

kind which is not constituted by the commission of ordinary crimes inc

of terrorism whether concerted or in isolation”15 (emphasis added). This 

came from a nation that had been plagued by cross-border terror

generation.

Back to the Future

The events of 9/11 undoubtedly caused a rift within the Bush administr

language was all of “war” but what was not clear was whether this was see

cal rhetoric or legal analysis. The sheer scale of the atrocity undoubtedl

uted to this, but war against whom? The term “war on terrorism” canno

as a legal description. “Terrorism” is a tactic and one cannot wage war ag

tic in any meaningful legal sense. The planning obviously focused on Af

where Osama Bin Laden was based, and the United States, with support f

parts of the world, prepared for war in Afghanistan.

It seems that, at this point, there was growing confusion between US 

tional law and international law. This may be because of the trend for 

taught together in universities in the United States. On September 25, 2

Yoo wrote the memorandum opinion to Timothy Flanagan, Deputy C

the President, already mentioned.16 In that memorandum, which run

twenty pages, there is only one reference in the main text to internatio

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That reference is in relation to declarations of war. It states: 

Instead of 

an authorization to begin hostilities, a declaration of war was only ne

‘perfect’ a conflict under international law.”

Apart from that isolated instance, the whole of the remainder of the m

dum deals with the position under US constitutional law. There is, how

sentence which possibly sums up the change of opinion in the United 

also shows that such a change predates the presidency of George W. Bush

tence refers to the address to the nation delivered by President Clinton on 

1998 in relation to the strike which he had ordered that day on Afghanist

dan following the bombing of the US embassies in Kenya and Tanzania

tence reads: “Furthermore, in explaining why military action was nec

President noted that ‘law enforcement and diplomatic tools’ to combat 

had proved insufficient, and that ‘when our very national security is cha

we must take extraordinary steps to protect the safety of our citizens.’”

appears that, as early as 1998 under President Clinton, the United States w

ning to move away from treating terrorism as solely a matter of law enf

The “war on terror” had not arrived but the initial skirmishes were und

Hostilities

The legal debate took a backseat during the conduct of hostilities. While 

some discussion over the ius ad bellum issues, the campaign was condu

cordance with the principles of the law of armed conflict. Regardless o

there was one conflict or two, the Department of Defense directive pro

the armed forces should “comply with the law of war during all armed 

however such conflicts are characterized, and with the principles and sp

law of war during all other operations.”19

However, the issue became live again when prisoners began to be 

Were they prisoners of war under the Third Geneva Convention or were 

Was there any distinction to be made between al Qaeda and the Taliban? 

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 

domain and therefore the discussion must inevitably be tentative. H

number of documents have either been released or leaked and these in t

make very interesting reading and go some way to explaining the decisio

President Bush on February 7, 2002.

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On January 9, John Yoo circulated a draft memorandum prepared b

Special Counsel Robert Delahunty addressed to the General Counsel 

partment of Defense, William J. Haynes.20 This memorandum, signific

based on the War Crimes Act, a domestic statute.21 It sought to argue 

propositions: (1) “[N]either the Geneva Conventions nor the [War Cr

regulate the detention of al Qaeda prisoners captured during the Afghan

flict” and (2) the Geneva Conventions did not apply to “captured mem

Taliban militia.”22 The simple argument was that neither al Qaeda no

fighters were entitled to prisoner of war status. Put in those terms, the 

while controversial, would have fitted within the traditional law of wa

However, it was not so much the propositions themselves but the argu

forward to support them that were to cause controversy.

First, starting from the War Crimes Act, Yoo and Delahunty began to ex

nature of conflict. They drew the usual distinction between Common Art

3 to the Geneva Conventions but sought to narrow the application of Com

ticle 3, stating it “should not be read to include all forms of non-int

armed conflict.”23 Their argument was that, “in enacting the [War Cr

Congress did not understand the scope of Common Article 3 to extend b

wars to all other types of internal armed conflict.”24 In their view Commo

only applied to “large-scale conflicts between a State and an insurgent g

similar threshold to that later incorporated into Additional Protocol II.

Second, they argued that “Al Qaeda’s status as a non-State actor rend

gible to claim the protections of the treaties specified by the [War Crim

The argumentation is confused as it is not made explicit whether the 

this conclusion is the nature of al Qaeda or the nature of the conflict it

are elements of both arguments and certainly when discussing Common 

and 3, the memorandum states, “Our conflict with al Qaeda does not 

ther category.”28

Yoo and Delahunty then move to the “Taliban militia.” They argue 

matter of constitutional law, “the Executive has the plenary authority to 

that Afghanistan ceased at relevant times to be an operating State and 

that members of the Taliban militia were and are not protected by the Ge

ventions.”29 There follows detailed argument as to why Afghanistan wa

State” and a conclusion that “Afghanistan under the Taliban militia was 

tion of ‘statelessness,’ and therefore was not a High Contracting Pa

Geneva Conventions for at least that period of time.”30

A secondary argument was that, even if the Geneva Conventions did a

ghanistan, the members of the Taliban militia themselves did not fall withi

gory of prisoner of war, outlined in Article 4 of the Third Geneva Con

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They argued that the Taliban 

cannot even be considered a gover

authority’” for the purposes of Article 4A(3), which covers “[m]embers 

armed forces who profess allegiance to a government or an authority 

nized by the Detaining Power.” It was accepted that the United States 

recognized the Taliban regime as the government of Afghanistan.32

The memorandum continued with a review of previous US campaign

that wherever the Geneva Conventions had been applied—Korea, Viet

ama, Somalia, Haiti and Bosnia—a distinction needed to be drawn bet

application as a matter of law and their application as a matter of polic

on to discuss whether, even if the Geneva Conventions were prima facie a

the President had the power to suspend their application either in whole 

in relation to Afghanistan. They concluded that as a matter of constitu

“the President may regard a treaty as suspended for several reasons.”34 

justified such a course essentially on the basis that “Afghanistan under t

could be held to have violated basic humanitarian duties under the Ge

ventions and other norms of international law.”35 They agreed that the

precedent for such a suspension by the United States but pointed out 

both the Korean War and the Persian Gulf War, the United States ha

from the strict terms of the Convention by allowing voluntary repatriati

oners of war rather than the mandatory repatriation required by the le

law in Article 118 of the Third Geneva Convention.36

The position under international law was also considered but wit

introduction:

We emphasize that the resolution of that question [whether the Geneva Con

were applicable], however, has no bearing on domestic constitutional issues, o

application of the [War Crimes Act]. Rather, these issues are worth considera

means of justifying the actions of the United States in the world of inter

politics.37

Their conclusion was that “it appears to be permissible, as a matter of b

law and of customary international law, to suspend performance of Ge

vention obligations on a temporary basis.”38 The reference to customar

tional law was necessary as the United States is not party to the Vienna C

on the Law of Treaties39 though, somewhat reluctantly, the memora

cepted that “some lower courts have said that the Convention embodi

tomary international law of treaties, and the State Department has at var

taken the same view.”40

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The memorandum concludes with a general examination of customar

tional law. It comes to the firm conclusion that it does not amount to fe

citing Chief Justice Marshall, who described customary international 

guide which the sovereign follows or abandons at his will. The rule, like 

cepts of morality, of humanity, and even of wisdom, is addressed to the 

of the sovereign; and although it cannot be disregarded by him withou

yet it may be disregarded.”41 However, somewhat unusually, the autho

to hold that “the President can properly find the unprecedented conflic

the United States and transnational terrorist organizations a ‘war’ for th

of the customary or common laws of war.”42 The purpose of this, howev

subject al Qaeda and the Taliban to those laws rather than US forces to t

is one of the few examples of the wider conflict against “transnationa

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 Con

would apply to the detention conditions in Guantanamo Bay, Cuba, or to 

military commission of al Qaeda or Taliban prisoners. We also conclu

customary international law has no legal binding effect on either the Presiden

military because it is not federal law, as recognized by the Constitution. Non

we also believe that the President as Commander-in-Chief, has the const

authority to impose the customary laws of war on both the al Qaeda and 

groups and the U.S. Armed Forces.43

It should be noted again that the main subject of this memorandum is 

conditions and the role of the military commissions. As such, the nature o

flict or conflicts in themselves is a secondary consideration other than as 

on the main issue. There is thus no argument specifically on the issue o

the conflict within Afghanistan itself was a single conflict governed by th

lating to international armed conflict or whether it was bifurcated i

against al Qaeda and a war against the Taliban. Indeed, the main purp

memorandum seems to be to argue that the laws relating to armed confl

apply at all!

The State Department Response

The draft memorandum had been copied to, inter alia, the State Depar

brought a swift response from William H. Taft IV, the Legal Adviser. In 

note to his memorandum in response to the Yoo/Delahunty draft, he sa

found “the most important factual assumptions on which your draft is 

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its legal analysis are seriously flawed.

Again, the main purpose of th

was to examine the issues relating to detention rather than the nature o

flict. The comments were grouped into four sections. The first dealt wit

tinuing applicability of treaty relations and made the point that “t

inability or even unwillingness of a State to perform international trea

tions is a question entirely separate from the question of its status. Afgha

continued to be a State and a party to the Geneva Conventions during th

period.”45 There followed detailed legal and factual argument including 

reference to United Nations practice:

The UN Security Council [UNSC] has also indicated that the Taliban and othe

to the Afghan conflict were bound to comply with the Geneva Conventions. I

Resolution 1193(1998), the Security Council reaffirmed that: All parties to the 

[in Afghanistan] are bound to comply with their obligations under inter

humanitarian law and in particular the Geneva Conventions of 12 August 19

UNSC Resolution 1214, also concerning the conflict in Afghanistan, u

tially the same language in a preambular clause. The parties referred to i

stances are the Taliban and those forces fighting against the Talib

Resolutions, in which the United States joined the consensus, describ

tions” to adhere to the Geneva Conventions. The Security Council coul

issued a resolution containing such a clause if it had not been convinced 

was a proper legal basis to apply international law obligations to the par

conflict within Afghanistan. Evidently, the Council—and the United S

not believe that Afghanistan was a “failed State” where the Geneva Co

had become inapplicable.

The second section addresses application of the Geneva Conventions 

“This section concludes that the [Third Geneva Convention] applies b

situation as between the United States and the Taliban is one of an arm

arising between two or more High Contracting Parties under Article 2.”4

be noted that this refers solely to “the situation as between the United 

the Taliban.”

The section makes clear that, in the view of the State Department, Com

ticle 2 to the Geneva Conventions applied and that Afghanistan “remain

Contracting Party by virtue of accepted principles of international law

opinion, “the United States’ refusal to recognize the Taliban as the govern

not a conclusion that the Taliban was not in effective control of the great 

ghanistan territory.”48 The State Department also resisted the Justice D

argument that the Taliban and al Qaeda were indistinguishable.

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The memorandum then examined whether, on the basis that the Ge

ventions applied, the Taliban still qualified under Article 4A of the Thi

Convention as prisoners of war. The conclusion was reached that, prima 

qualified as “regular armed forces” under Article 4A(3) but that in cases 

the appropriate course would be to hold tribunals under Article 5 of 

Geneva Convention.49 In this section, there is a very interesting footn

reads:

For instance, one reason among many that the Al Qaeda forces may not be en

POW status is that their operations are designed to violate the laws of war 

particularly, to target and attack civilian populations as such, civilians and 

property. It is this kind of systematic violation which excludes organized for

Article 4(A)(3).50

This does not rule out judging al Qaeda by the standards of the Genev

tions but in order to do so, they would have to be applicable.

The section concludes by taking issue with some of the conclusions dr

Justice Department memorandum on US practice in previous military c

before taking further issue with the Justice Department position on the 

of suspending obligations under the Geneva Conventions. As the Stat

ment pointed out, the United States had not sought to invoke any bre

time as grounds for suspension and it was somewhat late now.

The final section examined the position under customary internation

pointed out one basic tenet:

Were the President, as contemplated by the Draft Opinion, to act lawfull

federal law in a manner that would be inconsistent with the obligations of th

States under customary international law, that action would, notwithstan

lawfulness under U.S. domestic law, constitute a breach of an internatio

obligation of the United States.51

The memorandum pointed out how often the United States invokes 

law in its relations with other States, outlining, somewhat mischievously

United States relies upon customary international law to provide the Pre

his family with immunity from prosecution and legal process when 

abroad, by virtue of the doctrine of head of State immunity, which is enti

ter of customary international law.”52

The memorandum concludes with an annex on possible conseque

Bush administration were to decide against the application of th

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Conventions, both in domestic and international fora. It is a clear wa

any such action would not be without consequences.

As will be seen, the Taft memorandum bases itself on refuting the sp

arguments put forward by the Justice Department. It does not deal with t

cation of the conflict except when it is directly relevant to the subject ma

is nothing in the memorandum that indicates that the author takes the 

there is a bifurcated conflict in Afghanistan rather than a single conflict t

all the various participants. Such indications as there are tend toward t

conflict” point of view though it may be that the author never considere

ticular point as an issue.

The Justice Riposte

There followed a strong response from John Yoo and Robert Delahunt

they effectively maintained their previous position.53 Interestingly, t

mented, “Although we have similar bottom lines, we differ in reasoning 

there.”54 Indeed the argument was not so much on the practical effect o

sion on whether or not al Qaeda or the Taliban should be granted priso

status, but more on the legal reasoning that led to any such decision. T

sion on the conflict itself was limited though they did refer to “the unpr

nature of our war with al Qaeda and the Taliban,”55 the singular being 

here. The result was a new version of the Yoo/Delahunty memorandum

January 22, 2002.56

However, there had been a development in that, on January 18, the 

acting as Commander in Chief, had directed that al Qaeda and Taliban i

under the control of the Department of Defense were not entitled to p

war status. This was communicated by a memorandum to the Chairm

Joint Chiefs of Staff from the Secretary of Defense.57

Although the Yoo/Delahunty memorandum had been restructured, 

little change to the main arguments. There was reference to “a confl

Qaeda,” stating that it “is not properly included in non-internationa

armed conflict”58 and later that it “does not fall within Article 2” of th

Conventions.59 “It is not an international war between nation-States 

Qaeda is not a State. Nor is this conflict a civil war under Article 3 bec

conflict of ‘an international character.’”60 This last quote is in a section de

the application of the War Crimes Act and associated treaties to al Qaed

When the memorandum turns to discussing the application of the Ge

ventions to the Taliban militia, it refers to “the present conflict with res

Taliban militia.”61 Later on, in discussing the possible suspension of th

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Conventions, the authors talk of the suspension of the Conventions 

as 

the Taliban militia in the current war in Afghanistan.”62 Later still, when 

the possible status of Taliban prisoners under Article 4 of the Third Ge

vention, there is reference to the need, if the Geneva Conventions are to 

“the Afghanistan conflict” to be qualified as an international armed conf

is followed up with a telling sentence: “At this point in time, we cann

what consequences this acceptance of jurisdiction would have for futur

the war on terrorism.”64

An overall study of the memorandum leaves the reader with a sense th

sult of the confused debate on the application of the law, the issue of w

ghanistan was one conflict or two was not really considered. At some stag

indeed reference to “a conflict with al Qaeda” but in others there seems t

dication that the conflict in Afghanistan was homogeneous though the a

of the law might differ in respect to al Qaeda and Taliban detainees. P

confusion seems to arise from the uncertainty as to whether al Qaeda wa

the conflict (which seems to be the view taken) or whether it was merely 

pant in a conflict. The issue of how many conflicts were coexisting was n

addressed.

The Final Arguments

The Justice Department riposte led to a strong response from the Sta

ment. On January 23, William Taft wrote to Judge Gonzales, Counsel to 

dent, attaching a further memorandum which he had sent that day to Jo

This in fact referred to a second draft of the original Yoo/Delahunty mem

though it actually followed the dispatch of the final version. In it, Taft ma

sition clear. He stated:

As you know from our previous comments, our view is that, as a m

international law, the Third Geneva Convention applies to the armed co

Afghanistan because it “arises between” two High Contracting Parties 

Convention under common Article 2. The legal status of both al Qaeda and 

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 

gle conflict and could not be bifurcated between al Qaeda and the Taliba

went on to deal with the application of that Convention, confirming tha

members were not entitled to prisoner of war status, though invoking 

Article 3 as providing “minimal standards applicable in any armed conf

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On January 25, 2002, Judge Gonzales prepared a draft memorandu

President entitled “Decision Re Application of the Geneva Conventio

oners of War to the Conflict with Al Qaeda and the Taliban.”68 The title 

teresting as, though the memorandum allies itself almost entirely 

positions being taken by the Justice Department—and indeed affirms t

terpretation on legal issues of this sort is “definitive”—the heading ref

[c]onflict with Al Qaeda and the Taliban.” This use of the singular seem

firm that the issue of bifurcation simply was not considered.

The draft memorandum brought a swift response from the Secretar

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 c

between

Option 1: Determine that the Geneva Convention on the treatment of Pris

War (GPW) does not apply to the conflict on “failed State” or some other g

Announce this position publicly. Treat all detainees consistent with the prin

the GPW;

and

Option 2: Determine that the Geneva Convention does apply to the co

Afghanistan, but that members of al Qaeda as a group and the Taliban individu

a group are not entitled to Prisoner of War status under the Convention. An

this position publicly. Treat all detainees consistent with the principles of the 

There followed three pages of argument, as well as a page of comment on th

draft memorandum, but it seems clear that, in the view of the Secretar

there was only one conflict and the debate was only as to how al Qaed

Taliban should be treated within whateverlegal regime was deemed to ap

conflict. If the Secretary of State had considered that there was an i

whether the “conflict in Afghanistan” was one or bifurcated, it might be 

to expect that there would be some argument on the point in his letter. The

The intervention of the Secretary of State brought a riposte from th

General, John Ashcroft, on February 1, 2002.71 In his letter to the Presid

gues strongly for Option 1, stating that “this will provide the United Stat

highest level of legal certainty available under American law.”72 At no poi

take issue with the statement by the Secretary of State that the conflict i

The purpose of his letter is made clear when he states:

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[

] gy ppy p

assurance that no court would subsequently entertain charges that American 

officers, intelligence officials, or law enforcement officials violated Geneva Con

rules relating to field conduct, detention conduct or interrogation of detain

War Crimes Act of 1996 makes violation of parts of the Geneva Convention a 

the United States.73

William Taft, in a memorandum dated February 2, 2002,74 made one la

ing effort to repair what he apparently saw as an obvious departure by t

States from its traditional stance on the laws of war. He began by saying

per should make clear that the issue for decision by the President is w

Geneva Conventions apply to the conflict in Afghanistan in which U

forces are engaged.”75 After arguing forcefully for the application of th

tions, he continued tellingly: “It is not inconsistent with the DOJ [Depa

Justice] opinion that the Conventions generally do not apply to our worl

fort to combat terrorism and to bring al Qaeda members to justice.”7

cluded by saying:

The structure of the paper suggesting a distinction between our conflict with 

and our conflict with the Taliban does not conform to the structure 

Conventions. The Conventions call for a decision whether they apply to the co

Afghanistan. If they do, their provisions are applicable to all persons involve

conflict – al Qaeda, Taliban, Northern Alliance, U.S. troops, civilians, et

Conventions do not apply to the conflict, no one involved in it will enjoy the b

their protections as a matter of law.77

This is the first occasion that any argument is given on this specific issue. A

that memorandum are some notes entitled “Status of Legal Discussio

notes clearly state that:

• DOJ lawyers have concluded as matter of law that our conflict with al 

regardless of where it is carried out, is not covered by GPW. Lawyers from DOD

and OVP support that legal conclusion.

• DOJ, DOD, WHC, and OVP lawyers believe that this conclusion is desi

from a domestic law standpoint because it provides the best possible insul

from any misapplication of the War Crimes Act to the conflict with al Q

whether in Afghanistan or elsewhere.

• DOJ, DOD, WHC, and OVP lawyers further believe that this conclusi

appropriate for policy reasons because it emphasizes that the worldwide co

with al Qaeda is a new sort of conflict, one not covered by GPW or some 

traditional rules of warfare.

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yppQ

captured in Afghanistan on the theory that GPW applies to the conflict in Afgh

not to particular individuals or groups.

• DOS lawyers believe this conclusion is desirable from a domestic 

international law standpoint because it provides the best legal basis fo

intended treatment of the detainees and strengthens the Geneva Conven

protections of our forces in Afghanistan and other conflicts.

• DOS lawyers further believe this conclusion is appropriate for policy rea

because it emphasizes that even in a new sort of conflict the United States 

its conduct on its international treaty obligations and the rule of law, not ju

policy preferences.

At last, the issue was out in the open after being the “elephant in the 

so long. Five days later, President Bush issued his memorandum79 and t

cast.

Conclusion

Why was the matter not dealt with in detail in any of the earlier docum

Surely, if the State Department had realized that it was a live issue, it w

featured in the earlier correspondence. For example, the Secretary 

memorandum80 seems to have taken for granted that the conflict in A

was one entity and so, intriguingly, does the memorandum for the Presi

ten by Judge Gonzales on January 25.81 However, it was clearly an issu

perhaps the key issue—by the time that William Taft wrote on Februar

Was this a sudden realization by the State Department or did the issue 

in those few days at the end of January 2002? In any event, it would seem t

the most fundamental rulings that President Bush made was the least su

gal discussion. A further irony is that it might not have been necessary

President followed the advice of the State Department in respect to Af

the creation of the detention facility at Guantanamo Bay would still 

pened. Members of al Qaeda would still have been denied prisoner of 

and it is likely that the vast majority of Taliban detainees would have b

same position. The argument would have been on a different issue—whe

is a gap between the Third and Fourth Geneva Conventions where “un

belligerents” are concerned. That is a case where the United States would 

on far stronger legal ground. Would it have had an effect on the worldwid

combat terrorism or would it have actually helped the United States in 

to lead the effort from the moral high ground? Unfortunately, we will ne

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Now we struggle to deal with the issues caused by that fateful decision bo

tion to Afghanistan and elsewhere in the world. We are still strugglin

Limerick but we have no choice but to start from here.

Notes

1. Memorandum from George Bush to Vice President et al., Humane Trea

Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE PAPERS: TH

ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005).

2. Id. at 134–35.

3. Supra note 1.

4. Memorandum Opinion from John Yoo to Timothy Flanagan, Deputy Co

President, The President’s Constitutional Authority to Conduct Military Operat

Terrorists and Nations Supporting Them (Sept. 25, 2001), reprinted in TORTURE PA

note 1, at 3.

5. Letter from John Negroponte, Representative of the United States of Am

United Nations, to the President of the Security Council (Oct. 7, 2001), availab

avalon.law.yale.edu/sept11/un_006.asp.

6. Id.

7. Id.

8. The relevant correspondence is available at Yale Law School Avalon Projec

Ashburton Treaty – The Caroline Case, http://www.yale.edu/lawweb/avalon/diplom

br-1842d.htm.

9. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convent

vention for the Amelioration of the Condition of the Wounded, Sick and Shipwreck

of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Con

Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S

U.N.T.S. 135 [Geneva Convention III]; and Convention Relative to the Protection 

Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Con

all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelf

2000) at 197, 222, 244 and 301, respectively.

10. Geneva Conventions I–IV, supra note 9, at 198, 222, 244 and 301, respectiv

11. Geneva Conventions I–IV, supra note 9, at 198, 223, 245 and 302, respectiv

12. 1 COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 

Pictet ed., 1952).

13. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts art. 1(3), June 8, 1977, 1125 

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 Re

Protection of Victims of Non-International Armed Conflicts art. 1, June 8, 1977, 11

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, 

dent of the Swiss Confederation statement (d) (Jan. 28, 1998), reprinted in DOCUME

LAWS OF WAR, supra note 9, at 510.

16. Supra note 4.

17. Id. at 7.

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19. Deputy Secretary of Defense, Department of Defense Directive 5100.7, DoD 

Program para. 5.3.1 (Dec. 9, 1998), available at http://biotech.law.lsu.edu/blaw/d

html2/d510077x.htm.

20. Memorandum from John C. Yoo & Robert Delahunty to William J. Hayne

Counsel, Department of Defense, Re. Application of Treaties and Laws to al Qaeda 

Detainees (Jan. 9, 2002), reprinted in TORTURE PAPERS, supra note 1, at 38 [here

Delahunty Memorandum].

21. 18 US Code sec. 2441 (Supp. III 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. Id. at 69.

39. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 33

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. Id. at 77.

43. Id. at 79.

44. Memorandum from William H. Taft IV, Legal Adviser, Department of State

Yoo, Deputy Assistant Attorney General, Office of the Legal Counsel, United States 

of Justice, Your Draft Memorandum of January 9, at 1 (Jan. 11, 2002), availab

hei.unige.ch/%7Eclapham/hrdoc/docs/TaftMemo.pdf [hereinafter Taft Memorand

45. Id., attachment at 4.

46. Id. at 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. Id. at 31.

52. Id. at 33.

53. Letter from John Yoo, Deputy Assistant Attorney General, Office of Lega

Robert J. Delahunty, Special Counsel, Office of Legal Counsel, to William H. Taft IV

viser, US Department of State (Jan. 14, 2002), available at http://www.cartoo

newyorker/slideshows/02yootaft.pdf.

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55. Id. at 4.

56. Memorandum from John Yoo & Robert Delahunty to Alberto R. Gonzales

the President & William J. Haynes II, General Counsel of the Department of Defens

cation of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), reprin

TURE PAPERS, supra note 1, at 81 [hereinafter Yoo/Delahunty Memorandum of 

2002].

57. Memorandum from the Secretary of Defense to Chairman of the Joint Ch

Status of Taliban and Al Qaeda (Jan. 19, 2002),reprinted in TORTURE PAPERS,supra n

58. Yoo/Delahunty Memorandum of January 22, 2002, supra note 56.

59. Id. at 90.

60. Id.

61. Id. at 91.

62. Id. at 104.

63. Id. at 111.

64. Id.

65. Note from William H. Taft IV, Legal Adviser, Department of State, to Jud

covering Memorandum from William H. Taft IV, Legal Adviser, Department of Stat

Yoo, Deputy Assistant Attorney General, Office of the Legal Counsel, United States 

of Justice, Your Draft Memorandum of January 18 (Jan. 23, 2002), availabl

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 Ap

the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the T

25, 2002), available at http://www.humanrightsfirst.org/us_law/etn/gonzales/memo

_20020125_Gonz_Bush.pdf.

69. Memorandum from Colin L. Powell to Counsel to the President & Assistant 

dent for National Security Affairs, Draft Decision Memorandum for the President o

cability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 2002), 

TORTURE PAPERS, supra note 1, at 122.

70. Id. (emphasis added).

71. Letter from John Ashcroft to the President (Feb. 1, 2002), reprinted in TORTU

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 the President, Comments on Your Paper on the Geneva Conventions (Feb. 2, 200

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 Tal

Qaeda, in TORTURE PAPERS, supra note 1, at 130. The notes reference discussions am

from the DOJ (Department of Justice), DOD (Department of Defense), WHC (the W

Counsel’s office) and OVP (Office of the Vice President).

79. Supra note 1.

80. Supra note 69.

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p

82. Supra note 74.

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VIII

Making the Case for Conflict Bifurcati

in Afghanistan: Transnational Arme

Conflict, al Qaida and the Limits of t

Associated Militia Concept

Geoffrey S. Corn*

In response to a Committee for Human Rights inquiry related to th

killing of an alleged al Qaida operative in Yemen, the United States 

The Government of the United States respectfully submits that inquiries re

allegations stemming from any military operations conducted during the cou

armed conflict with Al Qaida do not fall within the mandate of the Special Rapp

...

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 

over. The Al Qaida network today is a multinational enterprise with opera

more than 60 countries.1

* Associate Professor of Law, South Texas College of Law.

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This assertion of the existence of an armed conflict between al Qaid

United States was both clear and emphatic, specifically rejecting the p

that the killing was governed by human rights norms. It also represents w

believe is a radical theory of law: that an armed conflict can exist betwe

and a transnational non-State entity.2

In no location has this latter proposition been more contested than i

istan. Although al Qaida may very well operate in over sixty countries a

world, the reality is that almost all the US military effort directed again

emy has occurred in Afghanistan, where much of that effort has been in

with the effort to defeat the Taliban armed forces. Because of the conti

ture of these operations, most scholars and law of armed conflict (LOA

have asserted from the outset of Operation Enduring Freedom that o

directed against al Qaida in Afghanistan are subsumed within the broa

conflict in Afghanistan. Accordingly, they reject categorically the sugge

there was, or is, in Afghanistan a distinct armed conflict between t

States and al Qaida.3 Instead, operations directed against al Qaida we

just a component of the broader international armed conflict between t

coalition and the Taliban regime, and thereafter of the non-internatio

conflict between the Kharzai government and its coalition backers and 

nants of the Taliban.

But if the premise asserted in the US response excerpted above is valid

armed conflict does exist between the United States and al Qaida—the q

the nature of that conflict in Afghanistan is arguably more complex. By s

a new category of armed conflict, what I have labeled in previous article

national armed conflict, the United States created the potential to treat t

uous conflicts in Afghanistan as distinct.

Such a theory of conflict bifurcation has potentially profound conseq

there was and is only one armed conflict in Afghanistan, then rights a

tions related to al Qaida operatives must be analyzed under the regulato

related to that broader conflict. This would impact a wide array of le

ranging from status of detainees, transferability and command responsib

risdiction related to criminal sanction for violation of the LOAC. If, in co

conflict between the United States and al Qaida occurring in Afghanistan 

as distinct from the conflicts related to the Taliban, a far more unce

framework would dictate a distinct package of rights and obligations v

Qaida. This framework would be, at best, composed of general LOAC 

perhaps supplemented by policy extension of conventional LOAC prov

This article will analyze the two primary impediments to recognizing su

cated conflict theory. The first of these is related to recognition in the con

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international armed conflict

that in such a context al Qaida is proper

clusively treated as a militia or volunteer group associated with the Talib

forces. The second is related to recognition in the context of a non-int

armed conflict—that unless al Qaida is an element of the insurgent forc

against the Kharzai government, operations conducted against al Qaida 

characterized as armed conflict but must instead be characterized as ex

rial law enforcement.

A theory of bifurcated armed conflict is concededly unconvention

such a theory is viable in the abstract, it is particularly problematic in rela

conflict in Afghanistan. This is because of the unavoidable reality that 

type of “one off” operations exemplified by the Predator strike that gen

Department of State assertion above, operations in Afghanistan directed 

Qaida are geographically and often operationally contiguous with thos

against the Taliban. Further complicating the theory is that operations 

by al Qaida were, and are often are, intertwined with those conduct

Taliban. However, these complicating realities only highlight the ultim

tion: does all this mean that the legal character of the armed conflicts t

must be contiguous? It is precisely because the United States has asserte

tence of a distinct armed conflict with al Qaida that this question must b

considered.

Transnational Armed Conflict: Has Reality Outpaced Legality

Defining the nature of the armed conflict against al Qaida—if there can 

armed conflict—is obviously critical to this analysis. As I have asserted i

articles,5 the traditionally understood law-triggering paradigm that evo

the development of Common Articles 2 and 3 of the Geneva Conventio

insufficient to respond to the need for battlefield regulation of counterte

bat operations.6 These operations, particularly those conducted in respo

attacks of September 11, 2001 reflect the reality that the basic regulato

work of the law of armed conflict must be triggered by any armed conflic

this is the critical predicate for the application of a bifurcated conflict the

ghanistan, this section (reproduced with light edits from my pri

“Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need 

nize a Hybrid Category of Armed Conflict”7) will explain the underlyin

for a transnational, or any, armed conflict theory.

The “either/or” law-triggering paradigm of Common Articles 2 and 

generally sufficient to address the types of armed conflicts occurring up 

However, this fact no longer justifies the conclusion that no other 

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standard should be recognized. Instead, as the events since 9/11 have illu

convincingly, such recognition is essential in order to keep pace with th

nature of armed conflicts themselves. The prospect of an unregulated ba

simply unacceptable in the international community, a fact demonstra

response to the conflict in Lebanon.9 The ultimate question, therefore, is 

is best to continue to try and fit the proverbial square “armed conflict” p

round “Common Article 3” hole, or whether the time has come to ack

that the essential trigger for application of basic LOAC principles is just a

flict, irrespective of the enemy or the location.

The stress on the existing paradigm of law of war application reflected 

verging conclusions of both the DC Circuit and the Supreme Court in th

case is in no way fatal to the ability of the law to adapt to the necessi

changing nature of warfare. All law is adaptive, but this is particularly tru

gard to the LOAC, a conclusion illustrated by the fact that this law has en

centuries. This area of international legal regulation has been historical

precisely because the law has always responded to the changes in the natu

fare. Perhaps more importantly, these responses have been implemented 

ner considered credible by States and the armed forces called upon 

military conflicts.

It is essential that the applicability of the principles of the laws of war—

that operate to limit the brutality of war and mitigate the suffering of 

war—not be restricted by an overly technical legal triggering paradigm

ingly, the ongoing evolution in the nature of warfare requires acknow

that any armed conflict triggers the foundational principles of the laws 

this outcome is achieved by characterizing such military operations as “

Article 3” conflicts that trigger the humane treatment obligation plus 

customary LOAC principles, the regulatory purpose of the law can be 

However, because Common Article 3 conflicts have become generall

mous with internal conflicts, it is more pragmatic to expressly endorse a h

egory of armed conflict: transnational armed conflict.10

The recognition of this “hybrid” category would not render Common 

or 3 irrelevant. Instead, these articles would continue to serve as triggers 

cation of the treaty provisions to which they relate. But this new category 

responsive to the rapidly changing nature of warfare, a change that cre

creased likelihood that States will resort to the use of combat power to r

threats posed by non-State armed entities operating outside their terri

armed conflicts justify a more precise interpretation of the de facto cond

trigger the foundational principles of the laws of war, supporting the c

that any de facto armed conflict serves as such a trigger. Common Artic

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would then serve to trigger layers of more defined regulation in some w

dant to, and in other ways augmenting, these principles. This “layered” m

ogy will ensure no conflict falls outside the scope of essential baseline r

while preserving the technical triggers for more detailed regulation requ

plication of specific treaty provisions.

This bifurcated methodology of distinguishing between treaty provis

and the principles providing the foundation for these treaty provisions 

sential aspect of the first major international war crimes trial since the 

Common Articles 2 and 3. In the seminal decision defining the jurisdic

first international war crimes tribunal since World War II, Prosecutor v. T

International Criminal Tribunal for the former Yugoslavia (ICTY), an a

crimes court created by the United Nations Security Council to prosecu

war criminals from the conflict that followed the breakup of the former Y

relied on a similar methodology. The Tribunal was able to sustain many w

allegations only by extending to the realm of non-international armed co

damental principles of the laws of war derived from treaty articles appli

to international armed conflicts.12 According to this seminal decision, th

ments for application of individual criminal responsibility under Arti

Statute (vesting the Tribunal with competence to adjudicate violations 

or customs of war) were that “(i) the violation must constitute an infring

rule of international humanitarian law” and “(ii) the rule must be custom

ture or, if it belongs to treaty law, the required conditions must be met . 

cordingly, the Tribunal relied on this methodology to fill a regulatory ga

to establish individual criminal responsibility in relation to the armed co

exact same logic that supports a further reliance on this methodology t

transnational armed conflicts.

The pragmatic logic of adopting an ipso facto application of these fun

principles to any armed conflict suggested in the Tadic ruling has also b

core of US military policy for decades. It also provided the ratio decide

Hamdan majority holding that the principle of humane treatment app

armed conflict between the United States and al Qaida. The Hamdan m

dorsed a modified version of the Common Article 2/3 “either/or” para

scope of international armed conflict defined by Common Article 2 was 

However, instead of endorsing the intra-State qualifier to the alternate 

armed conflict, the Court concluded that the term “non-international” 

Common Article 3 operates in juxtaposition to international armed con

therefore covers all armed conflicts falling outside the scope of Common 

Accordingly, the Court determined that a non-international arme

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includes the traditional category of internal armed conflicts, but also ex

rial armed conflicts between a State and non-State forces. As Justice Steve

The Court of Appeals thought, and the Government asserts, that common 

does not apply to Hamdan because the conflict with al Qaeda, being “‘interna

scope,’” does not qualify as a “‘conflict not of an international character

reasoning is erroneous. The term “conflict not of an international character

here in contradistinction to a conflict between nations. So much is demonst

the “fundamental logic [of] the Convention’s provisions on its application.” C

article 2 provides that “the present Convention shall apply to all cases of decl

or of any other armed conflict which may arise between two or more of t

Contracting Parties.” High Contracting Parties (signatories) also must abid

terms of the Conventions vis-à-vis one another even if one party to the con

nonsignatory “Power,” and must so abide vis-à-vis the nonsignatory if “t

accepts and applies” those terms. Common article 3, by contrast, afford

minimal protection, falling short of full protection under the Convent

individuals associated with neither a signatory nor even a nonsignatory “Pow

are involved in a conflict “in the territory of” a signatory. The latter kind of c

distinguishable from the conflict described in common article 2 chiefly becaus

not involve a clash between nations (whether signatories or not). In context, 

phrase “not of an international character” bears its literal meaning.

14

This interpretation of the scope of Common Article 3 was the essential p

the Court’s holding that the procedures established by the President fo

tary commission violated the laws of war. It is also thoroughly consisten

view that all situations of armed conflict require regulation, the view that 

vated US military policy for decades.

Recognition that combat is an endeavor that must trigger an effective 

framework is derived from a long-standing history of self-imposed 

codes adopted by professional armed forces. As is suggested by A.P.V. Ro

book Law on the Battlefield,

15 prior to the development of the legal “

mechanisms” controlling application of this regulatory framework, arm

did not appear to consider “conflict typing” as an essential predicate for 

within the limits of such a framework. While it is true that throughout m

tory this framework took the form of self-imposed limits on warrior 

these limits provided the seeds for what are today regarded as the fou

principles of the laws of war.17 Thus, the pragmatic military logic reflect

the Hamdan decision and the Department of Defense law of war polic

rooted in the history of warfare.

This history undoubtedly includes examples of combat operations 

by the regular armed forces of States against non-State armed groups p

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development of Common Article 3. These operations ranged from colo

ditions to what would today be characterized as “coalition” operations, s

multinational response to the Boxers in China. In his book Savage Wars 

Max Boot provides several examples of such combat operations conduc

armed forces of the United States prior to the Second World War, rangin

conflict against the Barbary Pirates to the punitive expedition against Pan

Armed forces executing such operations must have invoked what today 

characterized as the principle of military necessity, asserting the author

all measures not forbidden by international law necessary to achieve th

submission of their opponents. However, these forces must have also 

what would today be regarded as the principle of humanity, as understo

torical context.19 While the nature of the constraint on the conduct of th

tions may have been understood more in terms of “chivalry” and less i

law,20 the basic premise that runs through this history to the contempor

field is that combat operations trigger a framework of regulation necessa

ciplined operations. Today, this framework is best understood not in 

chivalric code, but in terms of compliance with the principles of necessit

ity, distinction and the prohibition against inflicting unnecessary suffer

It is, of course, improper to assert that the pre-1949 history of milit

tions supports a conclusion that armed forces regarded such operations 

ing legal obligations. On the contrary, the international legal character o

of war in relation to contemporary warfare was based primarily on treati

plied to conflicts between States. This point is emphasized by Professo

his book The Contemporary Law of Armed Conflict:

Historically, international law was concerned only with the relations between s

a result, the international law of armed conflict developed in relation to in

conflicts was not in any way concerned with conflicts occurring within the ter

any state or with a conflict between an imperial power and a colonial territor

However, this history does suggest that the seeds that grew into the fou

principles of the contemporary laws of war extended to the realm of inter

conflict by the Tadicruling and applied to all US military operations by w

icy were derived from these internal military codes. Indeed, the fact tha

temporary laws of war find their origins in the practices of armed for

highlighted by Professor Green: “the law of armed conflict is still governe

principles of international customary law which have developed virtu

feudal times . . . .”23 It therefore seems significant that armed forces did n

cally qualify application of these internal codes of conflict regulatio

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character of the armed conflict. Nor can it be legitimately asserted t

forces bound by such internal codes were employed exclusively in th

State-versus-State conflict. While this may have been the most comm

their combat operations, the history of the nineteenth and twentieth cen

include military engagements falling outside this category.24

Nonetheless, the historical context of the range of combat operation

in by regular armed forces during this critical period of legal developmen

icant when assessing appropriate scope of application of the contempor

ples of the laws of war. This history supports the inference that regu

forces historically viewed combat operations—or armed conflict—as an 

trigger for principles that regulated combatant conduct on the battlefield

tory is also instructive in exposing the fact that this “basic framework” co

severely strained during the years between the First and Second World W

strain was exacerbated by the fact that the scope of the emerging treaty-b

latory regime was strictly limited to “war,” which was understood in 

terms of a contention between States.25

In this regard, it also seems relevant that even Common Article 2 was 

to a perceived failure of the traditional expectation that armed forces wou

regulatory framework derived from either the laws and customs of war 

disciplinary codes when engaged in “war” between States.26 The rejectio

as a trigger for application of the laws of war during inter-State conflicts 

the “armed conflict” trigger was an attempt to prevent what one might u

as “bad faith avoidance” of compliance with the customary standards rel

jus in bello.

27 The qualifier of “international” was, as indicated in the Int

Committee of the Red Cross (ICRC) Commentary, an effort to emphasiz

cific provisions of the Geneva Conventions were triggered by armed con

ducted under State authority.28 However, as that same Commentary ind

the “armed conflict” aspect of military operations that distinguish such a

and the law that regulates them—from the wide range of government ac

involving the application of combat power by armed forces. It is there

oughly consistent with the purpose and history of the Geneva Conventio

principal emphasis on the existence of armed conflict when assessing the 

ate trigger for the foundational principles reflected in those and other 

treaties.

This general concept—that the need to provide effective regulation 

armed conflicts warrants resort to foundational principles reflected in tr

are technically inapplicable to a given conflict—was also endorsed by th

tional Criminal Tribunal for the former Yugoslavia. In Prosecutor v. T

Tribunal held that “an armed conflict exists whenever there is a resort 

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force between States or protracted armed violence between governm

thorities and organized armed groups or between such groups within 

Of course, because the question before this Tribunal dealt with applica

laws of war to international and/or internal armed conflict, or a com

thereof, the significance of this language is primarily related to these t

categories of armed conflict.31 What was far more significant about thi

was the recognition that non-international armed conflicts trigger a 

regulation more comprehensive than only humane treatment. In rul

obligations applicable to participants in such non-international arme

that provide a basis for individual criminal responsibility, the Tribun

beyond the humane treatment mandate of Common Article 3. In addit

obligation, the Tribunal concluded that many of the fundamental rules 

the methods and means of warfare applicable in international armed 

had evolved to apply as a matter of customary international law to non

tional armed conflicts.32 While the Tribunal noted that this evolution d

sult in a “mechanical transfer” of rules from one category of armed con

other, this ruling clearly encompassed what are characterized by many 

the foundational principles of the law of war.33 According to the rul

principles

cover such areas as protection of civilians from hostilities, in particul

indiscriminate attacks, protection of civilian objects, in particular cultural p

protection of all those who do not (or no longer) take active part in hostilities, a

prohibition of means of warfare proscribed in international armed conflicts an

certain methods of conducting hostilities.34

The wisdom of the Tadic judgment recognizing the necessity of exten

ciples originally associated with international armed conflicts into th

non-international armed conflict logically extends to both internal an

tional armed conflicts. Indeed, there seemed to be virtually no hesitation am

scholars and diplomatic officials for demanding application of these pr

the recent conflict in Lebanon.35 Obviously, the alternate was unthink

intense combat operations could fall beyond the scope of any legal regul

would application of the Hamdan ruling satisfy the perceived necessity t

such a conflict, as that ruling in no way addressed application of principl

ing the methods and means of warfare. Instead, the reaction to the con

cated an emerging international expectation that participants in such c

and especially State forces—would be legally bound to comply with a ra

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of war principles intended to mitigate the suffering inflicted by combat o

This evolution is achieving the imperative proposed below by Professor 

[I]n anti-terrorist military operations, certain phases and situations may 

different from what was envisaged in the main treaties on the laws of war. T

differ from the provisions for both international and non-international armed 

Recognising that there are difficulties in applying international rules in th

circumstances of anti-terrorist war, the attempt can and should nevertheless 

to apply the law to the maximum extent possible.36

In short, the logic animating the Department of Defense law of war p

extended to the realm of internal armed conflicts by the Tadic Tribunal

further extended to the realm of transnational armed conflicts. This evo

sentially treats the foundational principles of the law of armed conflict a

regulation upon which more comprehensive treaty regimes are built. In s

addresses the pragmatic necessity of regulation of de facto armed confl

preserving the continuing significance of the Common Article 2 ap

criteria.

The Contiguous Conflict Dilemma:

Does Any Association Create a Unified Armed Conflict?

Acknowledging that certain military operations conducted by the Un

against al Qaida trigger basic LOAC principles does not in and of itself 

bifurcated conflict approach to Afghanistan. Instead, the viability of a di

flict theory vis-à-vis al Qaida mandates analysis of whether the facts rela

erations in Afghanistan render such operations under this category or 

broader category of the armed conflict against the Taliban. This analysis 

turn on the relationship between al Qaida in Afghanistan and the Talib

The LOAC, specifically Article 4A(2) of the Third Geneva Conventio

to the Treatment of Prisoners of War (GPW), specifically addresses th

militia or volunteer corps personnel associated with a State party to a

tional armed conflict. That article provides that so long as certain cond

satisfied, such personnel are to be treated as prisoners of war upon cap

gesting that their status is no different from that of members of the arm

This in turn suggests that such militia and volunteer corps personnel are 

connected to the international armed conflict triggering application of th

tion and Article 4.

This provision provides the strongest basis to assert a unified arme

theory for Afghanistan. Indeed, this is the conventional approach to add

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conflict classification issue related to al Qaida. The logic of this unified co

ory is quite simple: Article 4 provides a basis to treat militia or volunteer 

sonnel as prisoners of war; this suggests that such personnel are connec

international armed conflict triggering Article 4; accordingly, their treat

suant to Article 4 indicates that their operations must be within the con

broader international armed conflict.

While this logic is certainly appealing, it has unquestionably been un

by the emergence of a transnational armed conflict theory. Prior to thi

ment in the law, the presumption that armed groups operating in associ

a State party to a conflict were part of that international armed conflict w

sive, because no alternate theory of armed conflict could apply to suc

However, if it is conceptually possible that such groups can be involved in 

armed conflict with the State party opposing the forces with which they 

ated, this presumption can no longer be considered conclusive, but 

better understood as rebuttable.

It therefore seems more appropriate to treat al Qaida personnel opera

ghanistan in association with the Taliban as presumptively part of the int

armed conflict between the United States and Afghanistan. Pursuant t

sumption, the status and treatment of captured al Qaida personnel wou

suant to Article 4A(2) of the GPW: if they met the express qu

requirements of that article they were prisoners of war; if they did not th

vilians who had taken part in hostilities (with all the targeting and liabi

quences that flow from such participation). Was there, however, a legiti

to treat this presumption as rebutted? Answering this question requires 

ation of the underlying purpose and meaning of the “associated militia” 

of the GPW.

Article 4A(2) of the GPW was developed for a very clear purpose: to e

individuals fighting on behalf of a party to an international armed conflic

certain qualification conditions could claim the protections of prisoner 

tus. The ICRC Commentary to this provision indicates that the primary 

disagreement among delegates to the drafting conference was the treatm

tisan and resistance groups in occupied territories. However, one aspect 

velopment of this provision seems clear: there is no disagreement 

organized group claiming the benefit of Article 4 must be fighting on 

State party. According to the Commentary

[i]t is essential that there should be a de facto relationship between the re

organization and the party to international law which is in a state of war, 

existence of this relationship is sufficient. It may find expression merely 

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g, py 

organization is fighting.37

Thus, while such a relationship need not take the form of a formal agr

declaration, it is clear that the militia must be operating on behalf of th

the Commentary notes, organized militia groups that are not fighting on 

party to the conflict do not benefit from Article 4, but instead “the pro

Article 3 relating to non-international conflicts are applicable, since su

and volunteer corps are not entitled to style themselves a ‘Party to the c

This comment seems to explicitly recognize that geographically contigu

conflicts are indeed subject to legal bifurcation.

The emphasis of connection to a State party is also manifest in the pr

Article 4 granting prisoner of war status to members of armed forces f

behalf of a belligerent State authority not recognized by an opponent St

ment of such individuals apparently did not generate disagreement amo

egates to the drafting sessions, precisely because it was clear the belligeren

of such forces was conducted on behalf of a de facto State authority:

At the Conference of Government Experts, delegations immediately appro

International Committee’s proposal for a special clause to cover “members o

forces claiming to be under an authority not recognized by the enemy.” It wa

however, that the proposal might be open to abusive interpretation, 

Conference therefore decided to add that such forces must, in order to benef

Convention, be fighting “in conjunction” with a State recognized as a belliger

by the enemy.39

This express “in conjunction” language was removed in subsequent 

only because it was clear that the situation that motivated the provision—

ment of forces fighting on behalf of the Free French authority during W

II—made it clear that the provision would only be applicable when th

junction” component was satisfied. Accordingly, the significance of fight

half of a “State” remained the sine qua non for such application.

Few experts would likely dispute the conclusion that fighting on behal

party is a condition precedent to application of Article 4 of the GPW. 

what exactly does this mean? Unfortunately, the ICRC Commentary pr

tually no guidance, a likely result of the fact that the primary concern for 

ers at the time Article 4 was revised was not this condition, but the four “c

qualification” conditions required by Article 4A(2). However, the lack 

sion on this condition does not justify the conclusion that it has no s

meaning.

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What does seem clear from the spirit and purpose of Article 4 is that th

tion of an organized militia group to a State party must be more than m

dental. Simple geographic continuity of operations does not in itself se

above the concept of incidental association, a fact implicitly acknowled

Commentary when it indicates that some militia groups might fall unde

international armed conflict legal regime. However, does a shared opera

jective suffice to move beyond incidental association to the type of asso

quired to trigger Article 4? In the opinion of this author, the answer is n

The “on behalf” of language used by the ICRC Commentary to e

meaning of article 4A(2) suggests more than a shared operational object

gests that the militia or volunteer group be seeking to achieve that object

primary purpose of contributing to the State’s strategic objective. Thus, 

tia group to be operating “on behalf” of a State party, its operation

“nested” within the strategic and operational objectives of the State and 

armed forces. If the militia group is operating for the purpose of achievi

independent strategic objectives, the mere fact that some of these object

be shared by the State party, or that the operational implementation of 

tinct objectives leads the militia group to collaborate with the State party 

execution, does not warrant the conclusion that it is operating on beh

State.

There is a legitimate argument that it was this latter type of linkage th

the Taliban–al Qaida association in Afghanistan when the United State

operations against both these entities. There is no indication that al Qaid

ordinate to the Taliban in either a de jure or de facto sense. On the contr

dicators suggest that al Qaida had established what could be characte

parasitic relationship with the Taliban—using the territory and resourc

by the Taliban to further its own independent strategic goals. In many wa

flects a perverse inversion of the type of association envisioned by the 

the GPW. Instead of al Qaida militia operating under the command and 

the Taliban, Taliban forces were ostensibly subordinated to al Qaida 

and control to serve al Qaida interests.40

It also seems clear that the events that caused the United States to targ

with combat power—the terror attacks of September 11—were not cond

behalf” of Afghanistan. While it is undisputed that al Qaida had exploit

haven provided to it by the Taliban, this was at the time merely the latest b

erations al Qaida had exploited.41 There is no evidence to indicate tha

launched the terror attacks of September 11 at the direction of the Tal

further some Taliban strategic objective. On the contrary, the independ

of these attacks resulted in the destruction of the Taliban regime.

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All of this supports the conclusion that the association between al Qai

State of Afghanistan was insufficient to support the presumption of Artic

cability discussed above. If al Qaida initiated an armed attack on the Un

as a distinct strategic objective, the mere fact that the military response 

tack led the United States to engage in armed conflict with the State tha

safe haven to al Qaida does not necessarily justify the legal windfall of lo

conflict with al Qaida within the realm of the international armed confl

Afghanistan.

The alternate conclusion is, of course, not without merit. It is certainl

that at least within the confines of Afghanistan, the conflict between t

States and al Qaida should be treated as derivative of the broader conflic

the United States and Afghanistan. But proponents of this theory sho

quired to muster more than mere geographic continuity, or even shar

objectives. The linkage between these two entities must reflect that al Q

ated in a derivative capacity to the Taliban armed forces, for only such ev

confirm the presumption that al Qaida was in fact operating “on behalf 

to the conflict.

If al Qaida was not sufficiently connected to the Taliban in Afghanista

ify as operating on behalf of a party to the conflict, then what was the nat

itary operations conducted by the United States against al Qaida 

Afghanistan? As I have argued elsewhere and outlined above, the de fac

nature of such operations indicates that they should be considered to qu

armed conflict triggering the basic regulatory framework of LOAC princ

ers, however, argue that unless military operations against al Qaida fall 

broader context of an armed conflict with Afghanistan, such operations 

ing more than extraterritorial law enforcement. It is to the fallacy of thi

tion that this article will now turn.

The Fallacy of Extraterritorial Law Enforcement as a Legal Mode

Transnational Counterterrorism Military Operations

One of the most difficult issues related to military operations direct

transnational terrorist operatives (what I will refer to throughout this 

counterterror military operations) has been determining the approp

framework applicable to such operations. Since the United States charac

response to the terror attacks of September 11, 2001 as an “armed con

well accepted standards for determining when the law of armed conflict i

have been thrown into disarray. In the yearsfollowing that tragic attack, a 

legal theories have been offered to identify the appropriate locus of such o

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within the international legal regulatory continuum. These have ranged 

US position that such operations are armed conflicts triggering LOAC-d

thorities (although what type of armed conflict remains allusive), to the 

sertion that such operations are merely derivative of international arme

triggered whenever a State conducts military operations in the territory 

State, to the assertion of human rights organizations that these operatio

der the human rights regulatory framework because armed conflict betw

and transnational non-State entities is a legal impossibility.

The skeptical reaction to the US assertion of a LOAC-based legal fra

unsurprising considering the breadth of that assertion typified by the h

characterization of a “Global War on Terror.” But just as the nature of th

component of the international struggle against highly organized terror

is much more refined than the broad concept of a “global war,” so m

analysis of which legal framework operates to regulate such military o

Suggesting that the struggle against terrorism justifies invoking the “aut

war” for every aspect of counterterrorism operations—from detaining 

“foot soldier” on what is in all respects a conventional battlefield to captu

rorist operative with law enforcement assets in the midst of a peaceful do

viron—is unjustifiably overbroad. But it is also unjustifiably under-in

demand that military operations launched for the purpose of employin

power against terrorist targets cannot be conducted pursuant to the L

framework because those operations fail to satisfy a law-triggering 

that evolved with an almost exclusive focus on inter-State or intra-St

conflicts.

The stakes related to determining the applicable legal regime to regulat

terror military operations are enormous. Not only do they have profou

on the rights and liberties of individuals captured and detained in the 

such operations, but whether operations are conducted under the L

framework or under the alternate human rights framework fundamental

the authority of State forces to employ combat power. Nor will pigeonho

operation under the inter-State conflict framework always produce a log

While offering the benefit of application of the LOAC, such an approac

ample, treating the 2006 conflict between Israel and Hezbollah as a su

armed conflict between Israel and Lebanon—results in what many con

an unjustified benefit for non-State forces, namely the opportunity to 

the privilege of combatant immunity.

But determining the nature of an armed conflict is secondary to determ

very existence of armed conflict. It is this issue—i.e., whether an armed c

even exist outside the inter-State/intra-State paradigm—that generate

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fundamental debate related to the military component of the fight again

tional terror groups. For the United States, the answer is an unequivo

However, this in no way indicates a consensus on this issue; far from i

many experts in international law have insisted that such operations are 

conflicts, but instead “extraterritorial law enforcement” operations.

This alternate legal framework was recently emphasized by Profess

Dinstein, certainly one of the international community’s most respect

scholars. During the conference which inspired this article, Professor D

ticulated what he asserted was the clear and simple legal framework for th

of transnational counterterror military operations. According to Dins

operations qualify as armed conflict under only two circumstances: first

operations are essentially derivative to an armed conflict with the State 

the terrorist organization; second, when the actions of the terrorist or

can be attributed to a sponsoring State as the result of terrorist authorit

gans of the State. All other uses of force against such a threat must, ac

Dinstein, be regarded as what he labels extraterritorial law enforcemen

ingly, he categorically rejected the proposition that such operations cou

to armed conflict.

I will attempt the unenviable task of challenging the clarity and sim

Professor Dinstein’s extraterritorial law enforcement theory. I will do so 

believe his conception of the legal characterization of counterterror milit

tions employing combat power is fundamentally inconsistent with the u

nature of such operations. A far more important motive, however, is m

tion that under appropriate circumstances treating such operations as e

trigger LOAC obligations is much more consistent with the logic, history 

of that law than attempting to characterize them as law enforcement m

Context for this argument is critical. I do not suggest that there cann

tain uses of the armed forces that do appropriately fall under a law enfor

gal paradigm. Instead, the nature of military operations I will focus on i

application of combat power by the armed forces against a designated 

group. For point of reference and clarity, the focus of this article are tho

operations conducted by the armed forces against non-State actors oper

side the State’s territory pursuant to what are essentially status-based r

gagement. If, as suggested above, operations conducted by the Uni

against al Qaida personnel in the context of Operation Enduring Freed

ghanistan can legitimately be segregated from the broader armed confl

the Taliban, they would fall into this category. Other examples include th

AC 130 strike against an alleged al Qaida base camp in Somalia and the Is

paign against Hezbollah in southern Lebanon during the 1990s and again 

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Determining the nature of such military operations is central to th

struggle against transnational terrorism. Past and future military opera

ducted to destroy, disable or disrupt the capabilities of such organization

will remain operationally and legally complex. More significantly, they 

tinue to strain the accepted construct for determining LOAC applica

depth of entrenchment of this construct no doubt explains Professor 

hostility to the suggestion that such operations could, under certain circu

qualify as armed conflicts for purposes of triggering LOAC obligations. 

any assessment of the controlling legal framework for these military o

must contemplate not only the “accepted” scope of the current law-trigg

adigm, but also the underlying purpose that motivated that paradigm. P

equal importance is the necessity to consider the second- and third-or

quences of characterizing these operations as law enforcement.

This section will therefore focus on the following factors that I believe 

tial to any analysis of the legal framework for military operations conduct

transnational terrorist operatives. These include the underlying nature 

pose of the existing law-triggering paradigm; the relationship between th

ture of employment of combat power and the legal regime that should re

employment; how the nature of the authority invoked reveals a fundam

tinction between the authority derived from the law of armed conflict f

and that derived from the law enforcement framework; the importanc

taining a bright-line distinction between the jus ad bellum and the jus in 

the comparative feasibility of applying each framework to such operat

lieve these factors indicate that, contrary to Professor Dinstein’s assertio

on the LOAC framework to regulate these operations is not only more 

more feasible than relying on a law enforcement legal framework.

The Nature and Purpose of the Traditional LOAC-Triggering Par

All LOAC scholars and practitioners are versed in what I have previously 

ized as the “either/or” law-triggering paradigm created by Common Art

3 of the four Geneva Conventions and the interpretation of these ar

evolved since 1949. This paradigm may have proved generally sufficient 

the types of armed conflicts occurring up until 9/11. However, this fact 

justifies the conclusion that no other triggering standard should be recog

stead, as the events since 9/11 have illustrated so convincingly, such reco

essential in order to keep pace with the evolving nature of armed confl

selves. The prospect of an unregulated battlefield is simply unacceptable 

ternational community, a fact demonstrated by the response to the c

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Lebanon.

The ultimate question, therefore, is whether it is best to cont

and fit the proverbial square “armed conflict” peg into the round “Com

cle 3” hole, or whether the time has come to endorse a new category of a

flict. It is the limited impact of Common Article 3 itself that co

conclusion that recognizing a new law-triggering category is essential.

Both the military components of the US fight against al Qaida and 

conflict between Israel and Hezbollah have strained this traditionally u

LOAC-triggering paradigm.43 While this strain has produced internation

tional uncertainty as to the law that applies to such operations,44 it ha

vided what may actually come to be appreciated as a beneficial reassessm

trigger for application of fundamental LOAC principles. As a result, the t

to consider whether the pragmatic logic that has animated military pol

subject for decades should not be regarded as something more, to wit a re

a general principle of law requiring that all military operations involvin

ployment of combat power fall under the regulatory framework of the L

Before the United States Supreme Court issued its highly publicized 

the case of Hamdan v. Rumsfeld,

45 the Court of Appeals for the District 

bia ruled on Hamdan’s challenge. In the judgment of Hamdan v. Rumsfe

Williams articulated the logic motivating this reassessment in his concur

ion. In that opinion, he responded to the majority conclusion that Com

cle 3 did not apply to armed conflict with al Qaida because the Pre

determined that this conflict is one of international scope:

Non-state actors cannot sign an international treaty. Nor is such an acto

“Power” that would be eligible under Article 2 (¶ 3) to secure protection by co

with the Convention’s requirements. Common Article 3 fills the gap, providi

minimal protection for such non-eligibles in an “armed conflict not of an inter

character occurring in the territory of one of the High Contracting Parties.” 

being filled is the non-eligible party’s failure to be a nation. Thus the words “n

international character” are sensibly understood to refer to a conflict be

signatory nation and a non-state actor. The most obvious form of such a con

civil war. But given the Convention’s structure, the logical reading of “inter

character” is one that matches the basic derivation of the word “internation

between nations. Thus, I think the context compels the view that a conflict be

signatory and a non-state actor is a conflict “not of an international character.” 

a conflict, the signatory is bound to Common Article 3’s modest requirem

“humane” treatment and “the judicial guarantees which are recogn

indispensable by civilized peoples.”47

Although the logic expressed by Judge Williams seems pragmaticall

ling, his interpretation did not sway his peers. This reflected the in

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Common Articles 2 and 3

and the legal paradigm they spawnedo

regulation analysis. But, as Judge Williams recognized, it is fundamenta

sistent with the logic of the LOAC to disconnect the applicability of 

from the necessity for regulation. Judge Williams looked beyond the trad

terpretation of Common Articles 2 and 3 because he recognized that 

needed was a pragmatic reconciliation of these two considerations. Iron

the long-standing policy of the US military that validates this interpreta

LOAC. That policy, as will be explained below, long ago rejected a formal

pretation of applicability of LOAC principles to military operations in 

pragmatic application based on the necessity of providing US forces wit

tent regulatory framework.

Recognizing the Regulatory Gap: How Military Policies Reflect the Ne

a “Principled” Approach to Military Operations

The need to provide a LOAC-based regulatory framework for all com

tions, even those ostensibly falling outside the accepted law-triggering 

derived from Common Articles 2 and 3, is not something that critics of 

erations targeting Hezbollah have only recently suggested. For more than 

cades prior to this conflict, the armed forces of the United States follow

and simple mandate codified in the Department of Defense Law of War P

comply with the principles of the law of war during all military operatio

this policy mandate has never explicitly articulated what precisely is 

“principles,”49 this term is generally understood to refer to the concepts t

the fundamental balance between the dictates of military necessity50 an

gation to mitigate the suffering associated with armed conflict, concept

vide the foundation for the more detailed rules that have evolved to i

these principles. This foundational principle/specific rule relationship is 

by Professor Adam Roberts:

Although some of the law is immensely detailed, its foundational principles ar

the wounded and sick, POWs and civilians are to be protected; military targets 

attacked in such a manner as to keep civilian casualties and damage to a mi

humanitarian and peacekeeping personnel must be respected; neutral 

belligerent states have certain rights and duties; and the use of certain w

(including chemical weapons) is prohibited, as also are other means and me

warfare that cause unnecessary suffering.51

While the US Department of Defense has never explicitly defined the 

the term “principles,” manuals for other armed forces do provide more 

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the content of this term. For example, the recently revised United Kingd

try of Defence Manual for the Law of Armed Conflict provides:

Despite the codification of much customary law into treaty form during the 

hundred years, four fundamental principlesstill underlie the law of armed confli

are military necessity, humanity, distinction, and proportionality.The law of armed 

is consistent with the economic and efficient use of force. It is intended to mini

suffering caused by armed conflict rather than impede military efficiency.52

For US forces and their operations, the significance of the mandate 

with these principles during all military operations is not diminished 

sence of a precise definition of this term. Instead, definition is left to opera

advisors based on their training and experience. What is significant for p

this article is that the policy requires that US armed forces treat any milit

tion, and especially any operation involving the use of combat power (a

flict), as the trigger for application of a LOAC-based regulatory framew

policy has provided the basis for following LOAC principles during ever

the military component of what the Bush administration has character

“Global War on Terror.”54

The motive for this policy was twofold. First, it was intended to prov

mon standard of training and operational compliance during the range 

operations.55 Second, it responded to the reality that such operations are 

tiated prior to a clear government determination of the legal applicab

laws of war.56 Ultimately, the armed forces value this policy because they 

understand that a framework for the execution of combat operations is e

the preservation of a disciplined force. This is a critically important purpo

regulation of the battlefield, a consideration often overlooked by con

commentators. Although no longer commonly cited as a critical purp

LOAC, prior generations clearly understood this purpose. This is clearly 

the emphasis of this purpose in one of the most important precursors to the 

century evolution of the conventional laws of war, the Oxford Manual of 

War on Land:

57

By [codifying the rules of war derived from State practice], it believes it is ren

service to military men themselves . . . . A positive set of rules, on the contrary, if 

judicious, serves the interests of belligerents and is far from hindering them, 

preventing the unchaining of passion and savage instincts—which battle 

awakens, as much as it awakens courage and manly virtues,—it strengthens the d

which is the strength of armies; it also ennobles their patriotic mission in the ey

soldiers by keeping them within the limits of respect due to the rights of huma

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The compelling logic reflected in this extract finds contemporary man

in the policy mandates imposed on US and other armed forces that exten

tion of these principles to all military operations. These mandates indica

application of combat power must always be subject to a basic regulato

work. The gap in the accepted scope of legally required LOAC applicatio

with this logic, led other nations to follow the practice of imposing such 

by policy.59 Even the United Nations, habitually called upon to use mili

in situations of uncertain legal classification, implemented an analogou

for forces operating under its control.60 However, no matter how logical 

dates may be in terms of military efficiency and humanitarian protections

icy characters reveal a perceived gap between situations necessitating LOA

tion and the technical legal triggers for such application. Furthermore, t

characters indicate that these mandates are ultimately subject to modifica

The historical underpinnings of the LOAC and the contemporary app

LOAC principles to a wide spectrum of military operations as a matter o

policy indicate that the dispositive factor in determining when this 

framework should apply is the fundamental nature of the military op

question. When armed forces conduct operations employing comb

against a defined enemy with authority to engage and subdue the ene

solely on that defined status, such operations should be regarded as ar

flicts. Because of this, the underlying logic that has driven the historical a

of LOAC principles to regulate such operations provides compelling e

support of extending this framework to counterterror military operatio

into this category, even when the enemy is a non-State entity with no pla

of attribution to the State in which it operates. As will be discussed belo

lytical focus on the fundamental nature of the authority invoked by the 

cates that the alternate proposition—to characterize such operatio

enforcement—is unsupported by any analogous logic.

The Fundamental Distinction between the Law of Armed Conflict 

Framework and the Extraterritorial Law Enforcement Legal Fram

The discussion above reveals why the regulatory framework applicable 

operations must respond to the de facto existence of armed conflict. H

also reveals why the existing understanding of this law-triggering paradig

erated as an impediment to such application in any armed conflict n

neatly within the inter-State/intra-State conflict categories. As a resul

operations conducted by States against non-State operatives who oper

nationally fall into a category of regulatory uncertainty. In respon

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uncertainty, scholars like Professor Dinstein argue that such operation

understood as extraterritorial law enforcement activities, and not as ar

flicts. This view presumably indicates that it is a law enforcement legal fr

and not LOAC principles, that functions to regulate such operations.

This is a significant assertion, for it dictates a scope of authority that i

inconsistent with the fundamental nature and purpose of such military o

It is undoubtedly true that the ultimate objective of disabling the operati

bilities of terrorist organizations is the common purpose of any countert

action. However, the means by which law enforcement activities achiev

jective differs fundamentally from the means by which military operati

most significantly with regard to the use of deadly force. Indeed, the m

mental distinction between law enforcement and armed conflict is ma

the scope of use of deadly force authority—a distinction between use 

force as a last resort and use of deadly force as a first resort. Law enforcem

ties, governed by international human-rights standards, reserve the use 

force as a measure of last resort. In contrast, use of deadly force against 

objective is a legitimate measure of first resort during armed conflict.

This basic distinction between relative authorities reveals in the starke

the fundamental fallacy of characterizing military operations direct

transnational terrorists as law enforcement operations, not based on an 

the nature of authority associated with such operations, but merely on t

incompatibility with the inter-State/intra-State law-triggering paradigm

instances, the choice by the State to resort to military force against such 

driven by the assessed need to employ deadly force as a measure of firs

last, resort. Consider the example of an airstrike conducted against a terro

ing facility operating with impunity in the territory of another State. I

ceivable that the authority to employ deadly force relied on by the 

executing the mission will be contingent on a provocation from the terro

Nor is it conceivable that the air assets will be obliged to offer the poten

the opportunity to submit to apprehension as a condition precedent t

ployment of combat power. Instead, the authority to employ that pow

most certainly be based on an inherent invocation of the principle o

objective, allowing the use of deadly combat power based solely on the 

tion of the target as one falling into the category of a defined terrorist en

Employment of combat power under this type of authority is not law 

ment. It is, quintessentially, a use of deadly force as a measure of first r

LOAC provides the only legal justification for such a use of force. Ac

based on the nature of the authority related to the military operation, a

flict best characterizes the de facto nature of such activities, if for no ot

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than the State

s implicit invocation of the principle of military objective 

cation for the use of deadly force. Characterizing such operations as law 

ment creates an immediate incongruity that undermines the fundamen

of that characterization: the suggestion that the use of deadly force is li

measure of last resort and that less destructive means must be attempte

such use.

No such incongruity would result from acknowledging that operatio

ing terrorist operatives with combat power are armed conflicts. Instead

knowledgment achieves a critical effect: the authority implicitly invok

State is counterbalanced by the limiting humanitarian principles of th

short, if such operations are categorized as armed conflicts, the law essen

ates a “package deal” for participants. While the principle of military 

military objective may justify the employment of deadly force as a meas

resort, other principles limiting the methods and means of warfare and 

ing baseline standards of treatment for captured and detained personn

come applicable. Unless combat operations conducted against terrorist 

are understood to trigger this “package” of principles, States will cont

free to adopt a selective invocation of the fundamental authority derive

LOAC to take measures necessary to disable terrorist capabilities, while d

legally mandated obligations derived from the same source of law.62

The Bright-Line Distinction between the Jus ad Bellum and the Jus i

Remembering That Application of the LOAC Should Not Be Influe

Use of Force Legality

Another significant objection to treating military operations direct

transnational terrorists as triggering LOAC rights and obligations is tha

will somehow legitimize such uses of force. This argument, however, i

historic bright-line distinction between the jus ad bellum and the jus in 

distinction has long stood for the proposition that the legality of war m

permitted to influence the applicability of the rules for conduct during 

distinction can genuinely be considered a foundational principle of th

Conventions and the de facto law-triggering provisions incorporated th

The ad bellum/in bello distinction is intended to achieve a critical eff

sure that the legal regime protecting the participants in armed conflict 

luted or denied based on the choices of those who decide on armed con

reflection of the basic tenet of the Geneva Conventions—all individuals 

by armed conflict, civilian and warrior alike, are in essence “victims o

they are not responsible for the decision to wage war. Accordingly

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regime that operates to limit the harmful effects of war on both warrior 

ian must be triggered by a pure de facto standard: the existence of armed 

Of course, the primary concern at the time of the drafting of the Co

was preventing States from using the illegality of war as a justification fo

humanitarian protections. The issue related to the application of the LO

itary operations between a State and non-State entity is quite the oppos

context, the concern is that acknowledging that such operations trigger 

legal framework will bolster the legal justification for the use of force by 

Nonetheless, the underlying purpose of the ad bellum/in bello distinction 

applicable to this context and indicates that the legal framework that reg

conduct of military operations should in no way influence the assessmen

gality of those operations.

As I have written extensively elsewhere, this de facto standard is a co

of the existing law triggers of the Geneva Conventions. The focus of these 

on the question of actual hostilities that rise above the level of law enforc

tivities. In such circumstances, the LOAC is the appropriate legal fram

achieve the humanitarian objective of limiting unnecessary suffering.

In the context of inter-State or intra-State hostilities, the line betwee

State power for law enforcement purposes and armed conflict has been 

well defined. However, once States began to employ power outside the

ries for the purpose of combating terrorism, this line became much 

(with my co-author Eric Jensen) have addressed the problem of definin

between law enforcement and armed conflict in this extraterritorial co

prior article, asserting that the nature of the use-of-force authority em

armed forces is the most effective means of definition. It is not my purp

pand upon that theory here. Instead, the basic concept reveals why the 

in bello distinction is equally relevant in such a context. We argue th

State authorizes the use of combat power based on an inherent invocat

principle of military objective (in the form of status-based rules of eng

a situation of de facto armed conflict exists. Even assuming that the u

authorized by the State is in violation of the jus ad bellum, this in no 

the basic reality that the State has implicitly invoked the LOAC for pu

executing the operation. As a result, there is no justification to depriv

ticipants in associated hostilities of the benefit of the fundamental pr

that law.

What seems more appropriate, and certainly more consistent wi

bellum/in bello distinction that is an integral element in determining LO

cability, is to treat the ad bellum/in bello issues as truly independent l

tions. Concluding a State’s use of military force to target a terrorist e

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violation of the jus ad bellum but is nonetheless armed conflict triggeri

mental LOAC rights and obligations seems more satisfactory than ass

jus ad bellum violation requires denying the participants in the hostilitie

efits of the legal framework best suited to regulate such activities.

Of course, characterizing such operations as law enforcement avoids 

entirely. Or does it? It is unlikely that a State will not be held to account 

interventions in the territory of other States simply because the State asse

ercising “extraterritorial law enforcement.” And here lies the potential ir

sessing the jus ad bellum legality of State action, it is almost certain that t

nature of that action will be the focus, and not the characterizations adop

State. As a result, use of combat power under the rubric of extraterritor

forcement creates a double failure: it will be insufficient to avoid condem

a jus ad bellum violation, while at the same time it will deprive the forces e

the operation of the clarity provided by the legal framework developed t

the essential nature of their activities: armed conflict.

The Law of Armed Conflict: A Defined and Intuitive Regulatory Fra

As suggested above, the regulatory framework applicable to the conduct 

operations against transnational terrorist threats should not influence 

ment of the legality of such operations. Accordingly, the primary analytic

eration for determining which legal framework is most appropria

regulation of such operations is how effectively it achieves the regulator

It is here that applying LOAC principles offers substantial benefit over 

law enforcement framework. This conclusion is supported by two prima

erations. First, fundamental LOAC principles are well established and w

stood by professional armed forces. Indeed, these principles are so perv

have formed the foundation for policy regulation of many military oper

are not technically subject to the law. Second, because of this pervasive ap

armed forces are well versed in compliance with these principles and 

conducting operations pursuant thereto is relatively intuitive.

This is not the case with the law enforcement framework. As a genera

tion, armed forces are not trained to conduct law enforcement operatio

their law enforcement counterparts, demanding a careful escalation of fo

sure that resort to deadly force is only a measure of last resort is the excep

mindset normally demanded of military personnel. That mindset requir

ity to engage an enemy with deadly combat power on command. Thi

volves the application of overwhelming, and not graduated, comb

Imposing a law enforcement framework on military personnel require

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modification to the combat mentality, with all the training, planning a

tion challenges associated therewith.

Ironically, one of the common criticisms of the assertion that milit

tions against transnational terrorist groups trigger LOAC principles is 

tainty associated with determining what rules would apply to such oper

Professor Dinstein noted during one presentation, “Where do the r

from? Do you just make them up in a library in Texas?” There is, ho

need to “make up” any rules. Instead, as my co-author and I have n

where, the fundamental LOAC principles—military necessity, military 

proportionality and humanity—are well enough understood as to prov

fective starting point for the regulation of these military operations. 

tending these principles to transnational armed conflicts a radical sugge

instead a process analogous to that which has led to the development o

lation of internal armed conflicts (another point of particular irony, co

that Professor Dinstein has been central to the proposed application of 

provisions developed in the context of inter-State conflict to the realm 

conflict).

What seems particularly invalid about this criticism is that it seems 

legitimately leveled against the extraterritorial law enforcement theo

fundamental LOAC principles, there is no well established source of 

principles that apply to the use of military force for extraterritorial law 

ment principles. If such operations are considered law enforcement, wh

rules that govern those operations come from? While rules applicable to 

law enforcement activities are certainly well developed, there is no bas

that they can simply be transplanted to apply to extraterritorial military o

Use of law enforcement would presumably be governed by the sending 

mestic policing statutes, an odd choice of laws in an extraterritorial us

Accordingly, such a suggestion seems far more fabricated than apply

principles to combat operations against terrorist operatives. In the latter 

the armed forces would apply a body of rules that form the foundation 

training and operations and were developed to limit the harmful conseq

State unleashing combat power. In the former, armed forces would be e

comply with a regulatory framework that was never developed nor inten

ply to armed hostilities.

Policy Application of the Law of Armed Conflict: Its Value and Lim

Perhaps the most compelling evidence in support of the validity of ap

LOAC framework to the type of military operations addressed in this art

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reliance on this framework as a 

defaultstandard has been the longsta

lution to the legal uncertainties associated with contemporary military o

For several decades, the armed forces of major military powers have im

obligation to comply with LOAC principles during all military operat

when those principles were not applicable as a matter of law. This pract

timately emulated by the United Nations as a solution to the dilemma of 

ing a uniform regulatory standard for all UN forces engaged in pea

operations.

The logic behind this policy application of LOAC principles reinforce

ment that the LOAC is better suited to provide for the regulation of cou

military operations than the law enforcement framework. Military lea

long understood that setting a LOAC-based default standard of regu

hances the probability of disciplined operations by facilitating uniform 

and planning criteria. Perhaps more important, because the LOAC i

source of international law that evolved for the specific purpose of regul

tary operations, its extension to all military operations was understood as 

ically and operationally logical. In short, these policies indicate tha

operations are best regulated by the law developed for such a purpose, a

some artificial application of a body of law developed for an entirely 

purpose.

Indeed, the past effectiveness of this policy application of LOAC prin

led some to assert that there is no need to wade into the controversial wat

flict characterization in relation to counterterror military operations

compliance with these policies provides an effective solution to the regu

lemma. But this argument is flawed for two reasons. First, it is in effect an 

edgment that these operations require the regulatory framework provi

LOAC, with an effort to avoid the difficult question of why this framewo

be applied. However, if the assumption is valid—that the nature of the o

requires LOAC regulation—then that issue must be addressed head o

reason for this is revealed in the second flaw of this argument.

Until the US response to the terror attacks of September 11, the 

enough” argument held great merit. This was because issues related to t

tion of military operations and treatment of individuals captured and 

during those operations were left almost exclusively to military decisi

However, it is widespread knowledge that this paradigm shifted dramat

those attacks. No longer was the military free to “apply the principles of 

war” with little or no interference from civilian policy- and decisionm

stead, the intervention of these individuals exposed the limits of policy a

of these principles.

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In what are now regarded as notorious legal opinions, senior US go

lawyers and the decisionmakers they advised adopted policies related to 

ment of captured and detained personnel that deviated from the “prin

the LOAC. The justification for these decisions was clear: unlike law, pol

leable. Accordingly, Department of Defense policy became ineffective 

leadership of the department or the nation chose to adopt inconsistent 

action. This process exposed why simply asserting a policy-based app

LOAC principles to counterterror military operations is insufficient to a

regulatory issue. Participants in these endeavors—and the individuals th

with combat power, subdue, capture and detain—require a legally de

mandated regulatory framework. While the long-standing policies requ

pliance with LOAC principles certainly indicate that these principles ar

logical and appropriate source of regulation for these operations, pol

mately insufficient to provide this certainty. Only by acknowledging 

mandated applicability of LOAC principles to such operations will thi

be achieved.

Case-by-Case Application and the Rejection of the Zero-Sum Ga

What I have attempted to do in this article is expose why it is invalid and d

ous to characterize counterterror military operations employing com

under a “deadly force as a first resort” authority as extraterritorial law 

ment. Instead, these operations should be treated as triggering the fou

principles of the LOAC. However, I am not suggesting a zero-sum game 

that all uses of the military in the struggle against transnational terrorism 

characterized as triggering LOAC principles; far from it. What I have 

here and previously is that the essential nature of the use-of-force author

to any use of military power must dictate whether that use falls into the c

armed conflict or instead remains under the assistance-to-law-enforcem

gory. This may often be a difficult line to decipher. But rejecting the appl

LOAC principles to those operations that cross this line simply because to 

viates from the entrenched law-triggering paradigm seems to defy the u

logic of the conventions that paradigm evolved from: a truly de facto law-

standard that ensured the assertion of authority derived from the LOAC 

compliance with limiting principles of the same body of law.

Acknowledging that under the appropriate circumstances armed 

bound to comply with LOAC principles when conducting counterter

tions will not dilute the effectiveness of this law. It will instead ensure a 

authority and obligation. Nor will it result in a parade of horribles beca

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uncertainty as to what rules apply to such operations. Applying the fun

principles of the LOAC to such operations is a feasible first step for such r

and one with which many armed forces are familiar pursuant to the polic

tion of these same principles that has been required for decades. Further

uncertainty as to the content of regulatory provisions derived from app

the LOAC is insignificant in comparison to the subjection of such oper

law enforcement regulatory framework designed for a radically different 

Nor do I believe that such acknowledgment will increase the uses 

power by States. While characterizing counterterror operations under 

framework will undoubtedly trigger more expansive authorities than law 

ment operations, requiring compliance with LOAC principles of cons

limit the scope of that authority. Furthermore, there are other significa

that will offset any tendency to treat such operations as armed conflict 

the benefit of expanded authority. These include not only jus in bello 

ations, which, when dealing with a terror target in anything other than a f

are profound, but also domestic political considerations, internationa

considerations and, perhaps most important, assessment of the mo

means to achieve the neutralization objective. All that is suggested h

when a State, after considering all these factors, chooses to unleash com

to achieve the national objective, the benefit of the LOAC regulatory f

should not be denied simply because the enemy is a transnational or

without traditional military structure.

Conclusion

Conflict classification is the essential first step in determining the rights a

tions of parties involved in armed hostilities. For decades, this classific

cess has been premised on the assumption that international law recog

two types of armed conflict: inter-State and intra-State. This led to the ev

an “either/or” law-triggering paradigm: either the conflict was between t

satisfying the triggering criteria of Common Article 2, or the conflict was 

State and a non-State armed entity within the territory of the State, sat

triggering criteria of Common Article 3.

The increasing prevalence of extraterritorial military operations con

States against non-State armed organized groups has resulted in an asse

such operations can qualify as armed conflicts. This theory of law appl

exemplified by the US treatment of the struggle against al Qaida as an “a

flict,” a position clearly reflected in the Department of State enunciation 

at the beginning of this article. Although controversial, it seems unden

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this theory of what can be functionally characterized as 

transnation

conflict is gaining legal momentum.

The assumption that such a category of armed conflict can exist calls 

tion the related assumption that military operations conducted by t

States against al Qaida in Afghanistan could only be categorized as fall

the broader armed conflict against the Taliban. While such a unified arm

theory is certainly plausible, and concededly the presumptive position, i

be the only position. Instead, a careful assessment of the relationship b

Qaida and the Taliban is necessary to determine whether such an outcom

fiable. If, as is suggested in this article, the facts reveal that al Qaida did n

truly “on behalf” of the Taliban, but instead had established more of a p

lationship to serve its own independent strategic objectives, then this pre

becomes invalid. Such invalidity suggests that the conflict between al Qai

United States in Afghanistan can and should be characterized as distinc

conflict between the United States and the Taliban.

This conflict bifurcation leads to another inevitable question: are ex

rial counterterror operations armed conflicts? Or are they simply exerc

traterritorial law enforcement? Resolving this question and determ

most appropriate legal framework for the regulation of extraterritori

operations directed against transnational terror operatives is no easy ta

essential because of the increasing prevalence of such operations. 

United States began asserting it was engaged in an armed conflict with 

scholars, legal advisors, policymakers and courts have struggled with 

tion, producing a wide variety of outcomes. Two major theories have 

response to this question. The first, epitomized by the US position, is 

operations qualify as “armed conflicts” within the meaning of internat

triggering a heretofore undefined package of legal authorities and ob

The second is that armed conflict can only occur within the inter-Stat

State law-triggering paradigm established by Common Article 2 and 

Article 3, and that military operations can be considered “armed conflic

they can be pigeonholed into one of these categories. In all other cases, 

the use of combat power to target terrorist operatives in the territory o

State, the military operations must be characterized as extraterritori

forcement activities, presumably regulated by law enforcement autho

human rights obligations.

This article has asserted that this latter approach—rejecting the possib

armed conflict between a State and a transnational non-State entity—pr

illogical outcome disconnected from the underlying purpose of the LO

sentially pushing a square peg into a round hole, it unjustifiably denies 

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forces and the people they encounter on what is indisputably a 

battl

benefit of the regulatory framework developed specifically to limit th

consequences produced when States unleash their combat power. While 

broad reach of LOAC authority resulting from the Bush administration’

of a “Global War on Terror” certainly justifies a cautious approach to th

of legal characterization, an under-inclusive backlash is equally invalid.

What is necessary is a careful assessment of the fundamental nature 

operations on a case-by-case basis. When those operations are conducted 

to a “use of deadly force as a first resort” authority—normally revealed i

of status-based rules of engagement—it indicates an inherent invocation 

thority of the LOAC. Under such circumstances, armed forces must ope

the obligations established by the fundamental principles of the same bo

These principles are generally well understood and have formed the foun

operational regulation of a multitude of military operations conducted 

armed forces for decades. Whatever uncertainty that may be inheren

principles is relatively insignificant compared to the far more uncertain 

content of an extraterritorial law enforcement legal framework. Wha

more problematic, however, is that military operations conducted pu

status-based rules of engagement are fundamentally inconsistent with 

forcement legal framework, for the use of deadly force as a measure of fir

the quintessential nature—and in all likelihood purpose for—such oper

such, it is the principles of the LOAC, and not those related to law enforc

tivities, that are most logically, pragmatically and appropriately suited 

operations.

Notes

1. See The Report of the UN Special Rapporteur on Extrajudicial, Summary 

Executions, U.N. Doc. E/CN.4/2004/7/Add.1 (Mar. 24, 2004).

2. See International Committee of the Red Cross, International humanitarian 

rorism: questions and answers (May 5, 2004), available at http://www.icrc.or

siteeng0.nsf/html/5YNLEV#a3, asserting that unless associated with a “traditiona

armed conflict (such as Afghanistan), the “war on terrorism” is not an armed confl

However, much of the ongoing violence taking place in other parts of the world 

usually described as “terrorist” is perpetrated by loosely organized groups (net

or individuals that, at best, share a common ideology. On the basis of currently a

factual evidence it is doubtful whether these groups and networks can be chara

as a “party” to a conflict within the meaning of IHL.

3. This rejection was evident from the reaction of many of the distinguished ex

bled for the conference that generated this article. Included among those who explic

such a contention were Professor Michael Schmitt, Professor Charles Garrawa

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ppg y 

titioners, seemed to find the proposition more appealing.

4. See Geoffrey S. Corn & Eric T. Jensen, Transnational Armed Conflict: A ‘Pri

proach to the Regulation of Counter-Terror Combat Operations (forthcoming in ISRA

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: 

Recognize a Hybrid Category of Armed Conflict, 40 VANDERBILT JOURNAL OF TRAN

LAW 295, 316, 341 (2007);see also Geoffrey Corn & Eric Jensen, Untying the Gordian 

posal for Determining Applicability of the Laws of War to the War on Terror (fort

TEMPLE LAW REVIEW), available at http://papers.ssrn.com/so13/papers.cfm?a

1083849; Corn & Jensen, Transnational Armed Conflict, supra note 4.

6. See Corn, Hamdan, Lebanon, and the Regulation of Armed Conflict, supra no

341.

7. Id.

8. Articles 2 and 3 are referred to as “common” because they are found identica

the four Geneva Conventions. See Convention for the Amelioration of the Cond

Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U

Convention for the Amelioration of the Condition of Wounded, Sick and Shipwre

bers of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Conventio

the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; a

tion Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 

75 U.N.T.S 287; all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Robert

Guelff eds., 3d ed. 2000) at 197, 198; 222, 223; 244, 245; and 301, 302; respectively. A

vides in pertinent part that “the present Convention shall apply to all cases of declar

any other armed conflict which may arise between two or more of the High Contrac

. . . ,” i.e., international armed conflict. Article 3 applies to all cases “of armed confl

international character occurring in the territory of one of the High Contracting Part

non-international armed conflict.

9. See Human Rights Watch, Lebanon/Israel: U.N. Rights Body Squanders Cha

Civilians (Aug. 11, 2006), http://hrw.org/english/docs/2006/08/11/lebano13969_txt

ments by Louise Arbour) [hereinafter Lebanon/Israel]; see also Human Rights W

Open Independent Inquiry into Civilian Deaths (Aug. 8, 2006), http://hrw.org/e

2006/08/08/lebano13939.htm (statements by Kofi Annan) [hereinafter Open I

Inquiry].

10. Recognition of this new classification of armed conflict might be viewed by s

suming the continuing role for the “internal” armed conflict classification. Such a c

somewhat justified, because the principles triggered by transnational armed confli

sentially be synonymous with those triggered by internal armed conflicts. Howeve

considerations warrant caution in this regard. The entire rationale for proposing a t

designation is to respond to the policy reality that States will continue to seek to mat

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

1995), reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32 (1996).

12. See Anthony Cullen, Key Developments Affecting the Scope of Internal Arme

International Humanitarian Law, 183 MILITARY LAW REVIEW 66 (2005) (providing 

analysis of the significance of the Tadic ruling).

13. Tadic, supra note 11, para. 94.

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() () (p

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 T

ARMED CONFLICT: INTO THE NEXT MILLENNIUM 141 (Michael N. Schmitt & Les

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 T

AMERICAN POWER (2003).

19. See LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 54

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

ples of such “non inter-State” military operations include several campaigns condu

armed forces of the United States, such as the operations during the Boxer Rebellion

campaign against Pancho Villa, and numerous “stability” operations in Haiti, the 

Republic, the Philippine Islands and Nicaragua. See generally BOOT, supra note 18.

25. During this period, brutal internal conflicts in Spain, Paraguay, Russia and 

lenged this customary expectation that professional armed forces engaged in arm

would conduct themselves in accordance with principles of disciplined warfare. Th

number of people killed in civil wars during the inter-war years are 18,800,000, R

War (1918–21); 3,000,000, Chaco War (Paraguay and Bolivia) (1932–35); 2,500,0

Civil War (1945–49) and 365,000, Spanish Civil War (1936–39). Historical Atlas o

tieth Century, http://users.erols.com/mwhite28/20centry.htm#FAQ (last visit

2006).

This created a perceived failure of international law to provide effective regulati

international armed conflicts, ultimately providing the motivation for the deve

Common Article 3. It is, however, worth questioning whether Common Article 3 

understood as “necessary” to ensure compliance with such foundational principles 

State conflicts. Within the context of the history of armed conflicts—a histo

characterized up until the inter-war years by relative obedience to internally impose

frameworks during all combat operations—Common Article 3 might instead be 

viewed as a fail-safe to provide the international community a basis to demand com

the most fundamental component of such a framework: respect for the humanity 

placed hors de combat when armed forces refuse to comply with the customary s

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 

characteristics of a war, may arise without being preceded by any of the formali

down in the Hague Convention. Furthermore, there have been many cases 

Parties to a conflict have contested the legitimacy of the enemy Governme

therefore refused to recognize the existence of a state of war. In the same w

temporary disappearance of sovereign States as a result of annexation or capit

has been put forward as a pretext for not observing one or other of the human

Conventions. It was necessary to find a remedy to this state of affairs and the 

which had taken place in the whole conception of such Conventions pointed th

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concluded on a basis of reciprocity in the national interests of the parties, and m

more as a solemn affirmation of principles respected for their own sake, a s

unconditional engagements on the part of each of the Contracting Parties ‘vis-à-

others. A State does not proclaim the principle of the protection due to prisoner

merely in the hope of improving the lot of a certain number of its own nationals

so out of respect for the human person.

. . .

By its general character, this paragraph deprives belligerents, in advance, of the p

they might in theory put forward for evading their obligations. There is no ne

formal declaration of war, or for the recognition of the existence of a state of 

preliminaries to the application of the Convention. The occurrence of d

hostilities is sufficient.

It remains to ascertain what is meant by “armed conflict.” The substitution of th

more general expression for the word “war” was deliberate. It is possible to argue 

endlessly about the legal definition of “war.” A State which uses arms to co

hostile act against another State can always maintain that it is not making w

merely engaging in a police action, or acting in legitimate self-defence. The exp

“armed conflict” makes such arguments less easy. Any difference arising betw

States and leading to the intervention of members of the armed forces is an 

conflict within the meaning of Article 2, even if one of the Parties denies the exis

a State of war.

See COMMENTARY ON GENEVA CONVENTION III RELATIVE TO THE TREATMENT OF 

OF WAR 19–23 (Jean S. Pictet ed., 1960) (emphasis added) [hereinafter ICRC COM

27. Id.

28. Id. at 32.

29. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeal on Jurisdiction, pa

(Oct. 2, 1995), reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32 (1996). It is in

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 t

U.S. forces will comply with the Laws of War during military operations in

armed conflict, no matter how the conflict may be characterized under intern

law, and will comply with its principles and spirit during all other operations.

Id.

30. Id., para. 70.

31. Nonetheless, it is interesting to note that the qualifying language of “within 

not applied to “protracted armed violence between governmental authorities an

armed groups.” Id. This does lend some support for application of the principles o

war to armed conflicts involving protracted violence outside either of these tradition

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 Leba

jurist.law.pitt.edu/forumy/2006/07/beirut-bleeding-law-under-attack-in.php; see a

214

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fpjp

war-crimes-and-mideast-conflict.php; Nick Wadhams, Annan: Israel Raid May Be 

tern, http://apnews.myway.com/article/20060808/D8JC0D5O2.html.

36. Adam Roberts, Counter-terrorism, Armed Force and the Laws of War, SURVI

2002, at 7, available at http://www.ssrc.org/sept11/essays/roberts.htm.

37. See ICRC COMMENTARY, supra note 26, at 57.

38. Id.

39. Id. at 62.

40. Comments of W. Hays Parks at the Naval War College Workshop, The War 

stan: A Legal Analysis (June 25–27, 2008).

41. See Al Qaida and Taliban, BOOKRAGS, http://www.bookrags.com/resea

-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 No

temporary Armed Conflict, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 1 (200

ing the complex challenge of conflict categorization related military operations 

against highly organized non-State groups with transnational reach); see also Kirby 

rorists: Combatants, Criminals, or . . . ?, in CANADIAN COUNSEL ON INTERNATIONA

MEASURES OF INTERNATIONAL LAW: EFFECTIVENESS, FAIRNESS, AND VALIDITY 

JENNIFER ELSEA, CONGRESSIONAL RESEARCH SERVICE, TERRORISM AND THE LA

TRYING TERRORISTS AS WAR CRIMINALS BEFORE MILITARY COMMISSIONS (2001), 

http://www.au.af.mil/au/awc/awcgate/crs/rl31191.pdf (analyzing whether the atta

tember 11, 2001 triggered the law of war).

44. This uncertainty is clearly reflected in the analysis prepared by the Office of 

sel in response to the terrorist attacks of September 11, 2001. Compare Memorandum 

C. Yoo, Deputy Assistant General Counsel & Robert Delahunty, Special Counsel, Of

Counsel, Department of Justice, to William J. Haynes II, General Counsel, Depart

fense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Ja

reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 38 (Karen J. Greenbe

Dratel eds., 2005), available at http://www.gwu.edu/~nsarchiv/NSAEBB/N

02.01.09.pdf (concluding, inter alia, that Common Article 3 was inapplicable to the 

flict with al Qaida because Common Article 3 applied exclusively to intra-State c

conflict with al Qaida was “international” in scope), with Memorandum from Will

IV, Legal Adviser, Department of State, to Counsel to the President, Comments on 

on the Geneva Conventions (Feb. 2, 2002),reprinted in TORTURE PAPERS, supra, at 1

at http://www.fas.org/sgp/othergov/taft.pdf (arguing that the Geneva Conventions s

terpreted to apply to the armed conflict with both the Taliban and al Qaida); see al

the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resol

U.N. Doc. A/HRC/3/2 (Nov. 23, 2006), available at http://www.ohchr.org/eng

hrcouncil/docs/specialsession/A.-HRC.3.2.pdf (“[t]he hostilities that took place fro

14 August 2006 constitute an international armed conflict to which conventional and 

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 Prog

49. The purported justification for this omission is that each subordinate service 

to define the content of this term for purposes of its forces. Leaving definition of the

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p

ceptable in the contemporary environment of joint operations. However, it is likely 

standard will be established by the Department of Defense in a Department of Def

War Manual, which is currently under development.

50. See UK MINISTRY OF DEFENCE, THE MANUAL FOR THE LAW OF ARMED CON

2.2 (2004) [hereinafter UK MANUAL] (“Military necessity permits a state engaged 

conflict to use only that degree and kind of force, not otherwise prohibited by the la

conflict, that is required in order to achieve the legitimate purpose of the conflict, 

complete or partial submission of the enemy at the earliest possible moment with th

expenditure of life and resources”); see also William Downey, The Law of War and M

cessity, 47 AMERICAN JOURNAL OF INTERNATIONAL LAW 251 (1953).

51. International Middle East Media Center & Agencies, United Nations Off

Bombardment of Lebanon Violates Humanitarian Law, IMEMC NEWS, July 23, 2

www.imemc.org/index.php?option =com_content&task=view&id=20260&Itemid=

52. See UK MANUAL, supra note 50, para. 2.1 (emphasis added). The manual a

an extensive definition of these principles.

53. See Department of Defense, DoD Directive 2311.01E, DoD Law of War Prog

[hereinafter Directive 2311.01E]. The exact language is “It is DoD policy that: Mem

DoD Components comply with the law of war during all armed conflicts, however su

are characterized, and in all other operations.” Id., para. 4.1; see also Timothy E. Bullm

gerous Guessing Game Disguised as an Enlightened Policy: Untied States Laws of War 

During Military Operations Other Than War, 159 MILITARY LAW REVIEW 152 (1999

the potential that the US law of war policy could be asserted as evidence of a custom

international law).

Other armed forces have implemented analogous policy statements. For e

German policy to apply the principles of the law of war to any armed conflict, no 

characterized, was cited by the ICTY in the Tadic jurisdictional appeal as evidence 

principle of law extending application of the law of war principles derived fr

governing international armed conflict to the realm of internal armed conflict. See 

note 29, para. 118 (citing HUMANITARES VOLKERRECHT IN BEWAFFNETEN KO

HANDBUCH 211, DSK AV207320065 (1992)[hereinafter German Military Manua

reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32 J(1996); see also Bullman, A 

Guessing Game, supra.

This policy has recently been updated, and has been made even more emphatic 

the “principles” qualifier to require compliance with the law of war during 

operations. According to the most recent version: “It is DoD policy that: Members 

Components comply with the law of war during all armed conflicts, however such 

characterized, and in all other military operations.” Directive 2311.01E, supra, para

54. This term will be used throughout this article as a convenient reference for t

military operations conducted by the United States subsequent to September 11, 2

this term is not intended as a reflection on this author’s position on the legitimacy of 

ing these operations as a “war.” While the author acknowledges the hyperbolic na

term, it is intended to refer to combat military operations against armed and organ

tion groups.

55. Interview with W. Hays Parks, a senior attorney for the Defense Departmen

nized expert on the law of armed conflict. Parks is the chair of the Department of De

War Working Group, and one of the original proponents of the Law of War Progra

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Just Cause in Panama is reflected in the following excerpt from a Department of St

sion related to judicial determination of General Noriega’s status: “[T]he United Stat

no formal decision with regard to whether or not General Noriega and former mem

PDF charged with pre-capture offenses are prisoners of war, but has stated that each 

vided all prisoner of war protections afforded by the law of war.” See Gov’t Resp. t

Hearing Memo. of Law, Sept. 29, 1992, at 8, cited in United States v. Noriega, 808 F

(S.D. Fla. 1992).

In Somalia, although US forces engaged in intense combat operations again

organized armed militia groups (see MARK BOWDEN, BLACK HAWK DOWN:ASTORY 

WAR (1999), there was never a formal determination of the status of the c

Memorandum from Lieutenant General Robert B. Johnston, Commander, Unified 

Somalia, to All Subordinate Unified Task Force Commanders, Subj: Detainee Po

1993).

57. INSTITUTE OF INTERNATIONAL LAW, THE LAWS OF WAR ON LAND (1880), 

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, pa

2, 1995), reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32 (1996) (citing the G

tary Manual of 1992, the relevant provision of which is translated as follows: “Mem

German army, like their Allies, shall comply with the rules of international humanit

the conduct of military operations in all armed conflicts, whatever the nature of suc

German Military Manual of 1992); see also UK Manual, supra note 50, para. 14.10 (

cates that during what it defines as “Peace Support Operations”—military operat

not legally trigger application of the law of armed conflict—“Nevertheless, such fi

not take place in a legal vacuum. Quite apart from the fact that it is governed by natio

the relevant provisions of the rules of engagement, the principles and spirit of the la

conflict remain relevant”).

60. In 1999, the Secretary-General of the United Nations issued a bulletin titled “

by United Nations forces of international humanitarian law.” This bulletin manda

ance with foundational principles of the law of war (international humanitarian law

operation that qualified as an “armed conflict.” No characterization qualification w

and the application paragraph demonstrates an extremely expansive interpretation 

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 se

the present bulletin are applicable to United Nations forces when in situations o

conflict they are actively engaged therein as combatants, to the extent and 

duration of their engagement. They are accordingly applicable in enforcement 

or in peacekeeping operations when the use of force is permitted in self-defenc

UN Secretary-General, Bulletin on the Observance by United Nations forces of in

humanitarian law, U.N. Doc. ST/SGB/1999/13, reprinted in 38 INTERNATIO

MATERIALS 1656 (1999).

61. See Noriega, supra note 56 (indicating that a policy-based application of the 

is insufficient to protect the rights of General Noriega because it is subject to modific

time at the will of the executive).

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enforcement. Pursuant to this theory, the overarching legal framework for ext

counterterror operations is best defined as a one derived from law enforcement aut

under certain circumstances when the use of combat power to augment law enforc

bilities is required, the presumptive law enforcement activity would be considered “m

This theory seems to be consistent with the thesis of this article, if it suggests that w

forcement activities become “militarized,” that ratcheting up of means brings into ef

ent legal framework, namely LOAC principles. If, however, the suggestion is that w

“militarizes” law enforcement activities, the armed forces engaged in operations a

comply with a law enforcement legal framework, then it seems that the effectiv

“militarization” of the activity would be disabled due to an incongruous operation

equation.

One middle ground that might also be suggested by this concept is that armed f

be regulated by LOAC principles during the operational phase of “militarized” law e

but that individuals captured and detained, once removed from the area of immedi

would be subject to a law enforcement legal regime. Such a hybrid approach seems r

the primary objection leveled against the US invocation of LOAC authorities vis-à-

terrorists—namely their indefinite detention without trial on the basis of military 

also seems to accommodate the needs of the armed forces engaged in such operations b

them with the most logical legal framework during those operations. One other 

significant benefit of such a hybrid approach is that it would eliminate any ince

unjustified invocation of LOAC authority as a subterfuge for avoiding normal l

related to detention.

It does, however, seem difficult to dispute the logic of detaining an individual who 

what is for all intents and purposes a belligerent capacity against a State. The legiti

“militarized” law enforcement theory rests on the assumption that existing do

authority for the trial and incapacitation of such an individual will satisfy the 

preventing a return to belligerent activities. If this assumption is valid, then the hybr

holds great merit. If, however, the assumption is invalid, it seems inconsistent wi

based authority that led to the capture of such an individual to require relea

knowledge of a likely return to belligerent activities.

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IX

Law of War Issues in Ground Hostilit

in Afghanistan

Gary D. Solis*

Introduction

British soldiers first came to Afghanistan in 1839, hoping to exten

pire and counter growing Russian influence there. That four-ye

ended in the massacre of most of the retreating British force of 16,500, de

ing that, while Afghanistan could be conquered, holding it was anothe

1878, again fearing Russian influence in the region, England once mor

Afghanistan from its base in India. Britain’s early victory and regime cha

proved Pyrrhic. With their occupation unexpectedly costly in men and tr

English gained control of Afghan foreign policy, then withdrew most of t

to India. In 1919, when remaining British units were attacked by Afghan 

British initiated a third foray into Afghanistan, this one more successfu

prior two adventures. Afghanistan nevertheless gained its independence 

Reminiscent of the British incursions into Afghanistan, from 1978 t

Soviet Union sponsored an armed conflict between the communist Af

ernment and anti-communist Muslim guerrillas. For their trouble, th

learned the grim lesson of the Kipling poem, “Young British Soldier

you’re wounded and left on Afghanistan’s plains, And the women come 

up what remains, Jest roll to your rifle and blow out your brains, An’ 

Gawd like a soldier. . . .”

* Adjunct Professor of Law, Georgetown University Law Center.

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Now, prepared to overcome history with modern weapons and new t

United States is in the seventh year of its war in Afghanistan. Challenges 

is a nation of massive mountain ranges and remote valleys in the north 

with desert-like conditions on the plains to the south and west. Road an

tems remain minimal and many of those that do exist are in disrepair. 

size of Texas, Afghanistan has a population of around twenty-four milli

has a visiting military population embedded in the International Secu

tance Force (ISAF) numbering about 45,000 ground personnel, includ

US troops, with another 19,000 US troops assigned to Joint Task Force 

of Operation Enduring Freedom forces assigned to Afghanistan.1

This article offers a summary examination of some of the law of arm

(LOAC) issues encountered in US ground combat in Afghanistan. Th

were discussed during the June 2008 Naval War College workshop, “T

Afghanistan,” which was the genesis of this volume of the “Blue Book.” 

it is a conflict whose ending remains to be written, much of its LOAC o

already discernable. Difficult issues involving conflict and individual sta

tions about prisoner of war (POW) status, arguments regarding targe

and “direct participation,” the questionable deportation of individuals 

ghanistan to Guantanamo Bay, and a disturbing number of war crime a

all arose in workshop discussions of ground combat in Afghanistan. This 

account reflects a few of those issues as seen through the lens of one p

Not all attendees will agree with all of these assessments, but they prov

ture points for discussion at future workshops.

Armed Conflict Commences

The genesis of America’s war in Afghanistan is well known. Long before 

of September 11, 2001, the United States was concerned with the directio

Afghanistan, as the Department of State’s Coordinator for Counterterr

in a 1999 Senate hearing:

Afghanistan has become a new safehaven for terrorist groups. In addition to b

and al-Qa’ida, the Taliban play host to members of the Egyptian Islamic Ji

Algerian Armed Islamic [G]roup, Kashmiri separatists, and a number of 

organizations from Central Asia, including terrorists from Uzbekistan and Taji

After the 9-11 attacks, President George W. Bush demanded that A

close its terrorist camps and hand over al Qaeda leaders in hiding there.3 

sor Dinstein points out, an ultimatum from one government to anothe

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deadline and warning that war will immediately commence once th

lapses, will, at the designated time, indicate the initiation of armed co

though there was no deadline in the Bush demand, it was clear that th

were required to act immediately or armed conflict would be initiat

United States.4 Such was the case. “[US] military operations against Talib

Qaeda targets in Afghanistan commenced on October 7th. . . . There oug

doubt that October 7th—and not September 11th—is the date of the be

the war between the United States and Afghanistan.”5 In support of the 

initiation of armed conflict, the United Nations Security Council passe

tion 1386, authorizing establishment of an International Security Assista

to maintain security in and around Kabul, after the fall of the Taliban. Sta

ipating in the ISAF were authorized “to take all necessary measures t

mandate.”6

Shifting Conflict Status

From the outset, a unique aspect of the ground war in Afghanistan ha

heavy use of Special Forces:

Army Special Forces (SF) was tested to a degree not seen since the Vietnam W

little time to prepare for this mission, SF teams were to land by helicopter 

hostile territory, contact members of the Northern Alliance, coordinate their 

in a series of offensives . . . and change the government of Afghanistan so 

country was no longer a safe haven for terrorists.7

Army SF units were the first US military personnel in Afghanistan for 

Enduring Freedom, as the invasion was denominated. A first twelve-ma

was inserted on October 19, 2001, joining with a Northern Alliance Uz

mander, Abdul Rashid.8 SF forces would carry the brunt of US fighting fo

Common Article 29 period of the Afghan conflict. The Northern All

United Islamic Front for the Salvation of Afghanistan) had battled the Ta

ernment since the Alliance’s formation in 1996, in a non-international a

flict. Now, in the north of Afghanistan, SF/Northern Alliance operations 

near Mazar-e Sharif, Kondoz and Taloqan. In other areas the Norther

continued its independent conflict with the Taliban central governmen

Meanwhile, in the south of Afghanistan, on the night of October 19–

ternational armed conflict opened when US SF and Ranger forces mad

time parachute drop to initiate a raid on Kandahar, fighting Talib

Common Article 2 and Common Article 310 conflicts were being fou

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same time in a single country. 

The fact that a belligerent State is beset b

from both inside and outside its territory does not mean that the interna

internal armed conflicts necessarily merge.”11 A few weeks later, on Nov

with the capture of Kabul by Northern Alliance, US and British forces, th

tional armed conflict began to ebb, but significant LOAC issues were be

emerge.

Individual Status and Prisoner of War Issues

The US Army’s official history of Operation Enduring Freedom note

point the wholesale surrender of the Taliban forces began to cause pr

More than 3,500 Taliban fighters had surrendered around Kondoz. Severa

more were captured by Northern Alliance forces near Mazar-e Shari

Feith, then Under Secretary of Defense for Policy, writes, “The Pentago

ship appreciated the importance of honoring the Geneva Conventions, 

arose time and again that required the very difficult balancing of weighty 

peting interests: on interrogation methods . . . and on whether to prose

viduals as criminals or simply continue to hold them as enemy combata

efforts to “balance” the Geneva Conventions against interrogation me

prosecution choices did not meet with notable success.

What was the status of Taliban captives taken in the brief Common 

phase of the armed conflict? Did they qualify as POWs? Were they mem

armed forces of a party to the conflict? Additional Protocol I defines an ar

to include

all organized armed forces, groups and units which are under a command res

to that Party for the conduct of its subordinates, even if that Party is represen

government or an authority not recognized by an adverse party. Such arme

shall be subject to an internal disciplinary system which, inter alia, shall 

compliance with the rules of international law applicable in armed conflict.14

Considering that definition, but for their compliance with internation

Taliban appear to qualify as the armed forces of Afghanistan, entitled to P

if captured in a Common Article 2 conflict.15

Or were Afghanistan’s Taliban akin to a post–World War I Freikorps i

Germany? Consisting of private paramilitary groups, ultraconservative 

nationalistic, more than sixty Freikorps proliferated throughout German

one of them becoming the National Socialist German Workers’ Party—

Party. But in 1920 the Nazis were just another Freikorps, with an allegia

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any German government but to their own Freikorps.

There is an argu

Afghanistan’s armed forces ceased to exist after the fall of the c

Najibullah government in September 1996 and were supplanted by rival 

like “armies,” the Taliban being one of the more powerful. The argume

ues that there is no showing that the Taliban became the armed forces o

stan, professing allegiance to the government of the State.17 The Comm

the Additional Protocols notes, “[C]ombatant status is given to regular f

which profess allegiance to a government or authority . . . which claims to 

a State which is a Party to the conflict.”18 Accordingly, under this con

Taliban were not “the armed forces of a Party to the conflict.”19 Rather

ment goes, they were merely the armed group in control of Afghanist

government.

But the stronger case is that the Taliban were indeed the armed for

ghanistan. Starting in 1954, the International Law Commission (ILC) 

guidelines for State responsibility. Article 8 of the ILC’s 2001 document, 

bility of States for Internationally Wrongful Acts, reads: “The conduct o

or group of persons shall be considered an act of a State under internati

the person or group of persons is in fact acting on the instructions of, or 

direction or control of, that State in carrying out the conduct.”20 That 

combined with the plain language of Additional Protocol I’s Article 43

the conclusion that the Taliban were the armed forces of Afghanistan.

Accepting, arguendo, that the Taliban were Afghanistan’s armed for

the period of the Common Article 2 conflict, did its captured fighters m

status as members of “the armed forces of a Party to the conflict”?21 Ap

four conditions for lawful combatancy and POW status upon capture, t

is reasonably clear: although they were the armed forces of Afghanistan

not wear uniforms or other distinctive fixed sign. Black turbans, commo

males in the region, do not suffice.

Since the [four] conditions are cumulative, members of the Taliban forces 

qualify as prisoners of war under the customary law of war criteria. These criter

no exception, not even in the unusual circumstances of . . . the Taliban regim

that ‘[t]he Taliban do not wear uniforms in the traditional western sense’ 

misleading, for the Taliban forces did not wear any uniform in any sense at a

Throughout the Common Article 2 phase of the conflict they failed 

guish themselves and were not entitled to POW status. Although ther

soned views in disagreement,23 the Taliban captured during the Commo

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US invasion were not merely soldiers out of uniform

or out of a Wester

tion of a uniform. They were not POWs.

What then was their status? Given the definition of civilians in Article 

ditional Protocol I, they were simply civilians and, being directly involve

ternational armed conflict, they were unprivileged belligerents, i.e., civ

took a direct part in hostilities, to be captured and tried under military 

domestic law—not for being unlawful combatants, which is not a crim

itself, but for the unlawful acts that rendered them unlawful combatant

One may question whether it would not have been wise to have a com

bunal determine the status of those Taliban captured during the int

phase of the conflict since their presumptive status upon capture was P

such tribunals are called for only in cases of doubt regarding the captiv

Was there doubt?25 The US Congressional Research Service specifies s

sons for not granting POW status:

The Administration has argued that granting [al Qaeda or Taliban] detaine

status would interfere with efforts to interrogate them, which would in turn ha

efforts to thwart further attacks. Denying POW status may allow the Army 

more stringent security measures . . . . The Administration also argued 

detainees, if granted POW status, would have to be repatriated when host

Afghanistan cease, freeing them to commit more terrorist acts.26

Initially the US position on the status of both the Taliban and al Q

seemingly based on such faulty reasoning. Clearly al Qaeda, a violent

tional, non-State terrorist group, is in violation of all law, including th

Acts of terrorism like those commonly perpetrated by al Qaeda are pro

Geneva law, including the 1977 Protocols.28 Initial individual status d

tions were needlessly complicated by the inexplicable US view that the fig

the Taliban was an armed conflict, yet was neither a Common Article 2 

mon Article 3 conflict.29 Despite warnings from the US Secretary of Stat

Department of State’s Legal Adviser,31 the Bush administration held th

the Taliban nor al Qaeda was protected by the Geneva Conventions,32 

Common Article 3 protection.33 The view that captured Taliban and 

fighters were outside the protections of Common Article 334was rejected 

preme Court in its 2006 Hamdan decision,35 and the administration sub

softened its position. Lieutenant General Ricardo Sanchez, former US co

of ground combat troops in Iraq, wrote of the presidential memorandum 

the Taliban the protections of the Geneva Conventions:

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py 

Essentially, it set aside all of the legal constraints, training guidelines, and 

interrogation that formed the U.S. Army’s foundation for the treatment of p

on the battlefield . . . . According to the President, it was now okay to go beyo

standards with regard to al-Qaeda terrorists. And that guidance set America o

toward torture.36

If not covered by the Geneva Conventions, even Common Article 3, w

pre-Hamdan US view, was the status of captured Taliban and al Qaed

and what treatment were they to be accorded? The murky answer was pr

Secretary of Defense Donald Rumsfeld: “The Combatant Commande

detaining Al Qaeda and Taliban individuals under the control of the D

of Defense, treat them humanely and, to the extent appropriate and cons

military necessity, in a manner consistent with the principles of the Ge

ventions of 1949.”37 No individual status was specified. A former Assista

torney General wrote, “This formulation sounded good. But it was ver

was not effectively operationalized into concrete standards of conduct, 

all of the hard issues about ‘humane’ and ‘appropriate’ treatment to the 

of unknown officials.”38 Nor was it consistent with the law of armed co

Captured Taliban were dubbed “enemy combatants.” That phras

peared in the US Supreme Court opinion in the World War II Nazi sab

Ex parte Quirin. Chief Justice Stone wrote for the majority:

[A spy or] an enemy combatant who without uniform comes secretly through 

for the purpose of waging war by destruction of life or property, are familiar e

of belligerents who are generally deemed not to be entitled to the status of pris

war, but to be offenders against the law of war subject to trial and punish

military tribunals.39

Sixty-five years later, critics of Quirin note of the Court’s phrase, “enem

ant,” that “the term’s meaning is blurred by its failure to appear in the po

law existing at the time of the case as well as in the current treaty-ba

war.”40Another critic dismissively asserts that “[t]he concept of the ‘unla

batant’ was invented to explain the legal fate of the eight German saboteu

Quirin. . . . The concept . . . explained why the saboteurs were entitled n

jury trial under the Constitution nor to POW status under the Hague 

tion.”41 Although Quirin continues to be cited when supportive of a wr

tion, the opinion is muddled, and a poor example of LOAC insight that 

clarity.

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Canadian Brigadier General Kenneth Watkin writes, 

[C]onfusion 

been created by the United States’ use of an even more generic term: ‘en

batants.’”42 Colonel Charles Garraway agrees:

The term “enemy combatant” . . . merely adds to the confusion. Traditionally, 

“enemy combatant” refers to legitimate combatants who are entitled to prison

status. It is a new usage to describe those who are deemed to be unlawful bellig

such. What term is left for those legitimate combatants belonging to enem

forces?43

Today, “enemy combatant,” like the term “combatant” itself, has co

resent a status rather than an activity. A definition of “enemy combatan

US Armed Forces is found in a Department of Defense (DoD) directiv

combatant. In general, a person engaged in hostilities against the Unite

its coalition partners during an armed conflict. The term ‘enemy comb

cludes both ‘lawful enemy combatants’ and ‘unlawful enemy combatan

mention is made of the treatment due a captured enemy combatant and 

tion appears tailored for the “war on terrorism,” rather than for general L

Its melding of lawful and unlawful combatants, long-established separ

statuses, is also notable since, upon capture in a Common Article 2 confli

are entitled to significantly differing protections. Whether this definitio

to become State practice, or the subject of treaties, remains to be seen.

A competing US directive, Joint Publication 3-63, adopts the just-m

DoD directive’s definition but, significantly, omits its last sentence: “En

batant. In general, a person engaged in hostilities against the United State

alition partners during an armed conflict.”45 Again, the Joint Pu

definition does not mention the captive’s individual status (unless “en

batant” is considered a discrete status), or presumptive POW status or 

person status, one or the other of which must be applicable in a Commo

conflict. In Afghanistan, the United States has been at pains to avoid r

captured opposing fighters as POWs. The unsatisfactory term “enemy co

is instead used.

Taxonomic issues aside, Operation Enduring Freedom continued, 

pants oblivious to status issues. On November 16, 2001, the battle of Tor

gan. In support of Afghan warlord Hazrat Ali, dozens of US SF operat

airstrikes on al Qaeda mountain strongholds. Although the constant s

pressure from ground forces reduced the enemy presence, fighting cam

in mid-December. Most of the enemy had either fought to the death or 

refuge across the Pakistan border.46

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Also in November, at Tarin Kot, US aircraft guided by SF ground c

decimated Taliban fighters, killing an estimated one thousand. On Nov

the first US conventional forces entered Afghanistan when five hundre

of the 15th Marine Expeditionary Unit (MEU) debarked from USS P

landed at Kandahar. They had moved by helicopter from their shipboard 

hundred miles inland to Kandahar, so distant an inland objective not 

usual Marine ship-to-shore movement. The 15th MEU departed a few w

replaced by the 26th MEU,47 who themselves departed within two mont

ground, Afghanistan was still essentially an SF/Northern Alliance show

Also, on November 25, 2001, during a riot at a prison located at Maza

CIA Special Activities Division officer Johnny M. Spann was the first 

killed by Taliban enemy action.48

Unmanned Aerial Vehicles and Targeted Killing

Operation Enduring Freedom is notable for the use of unmanned aeri

(UAVs). Their role in ground combat has been significant because at 

UAV, the MQ-1 Predator, can carry and fire two laser-guided air-to-gro

fire missiles, changing the fundamental nature of ground combat w

employed.

Predator UAVs first deployed to the Balkans in 1995. Since then, the 

offensive capabilities have increased. Today, it carries a daytime telev

camera, a forward-looking infrared camera for low-light and night opera

a laser designator. Cruising at eighty-five miles per hour at 25,000 feet, 

can loiter for in excess of forty hours.49 The first armed Predator miss

ghanistan was flown on October 7, 2001.

Employing the Predator, the US admitted engaging in targeted killing f

time.50 On November 3, 2002, over the desert near Sana, Yemen, a CIA-

Predator tracked an SUV containing six men. One of the six, Qaed Sa

al-Harethi, was believed to be a senior al Qaeda lieutenant who had play

role in the 2000 bombing of the American destroyer USS Cole. He “was 

‘high-value’ targets whose elimination, by capture or death, had been ca

President Bush.”51 The United States and Yemen had tracked al-Hareth

ments for months. Now, away from any inhabited area, the Predator fir

fire missile at the vehicle. Its six occupants, including al-Harethi, we

There is no consensus definition of “targeted killing” in the LOAC or in 

However, a reasonable definition is offered by International Committee 

Cross (ICRC) legal advisor Nils Melzer: “The use of lethal force attribu

subject of international law with the intent, premeditation and delib

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kill individually selected persons who are not in the physical custody of 

geting them.”54

Additional Protocol I, Article 51.3, usually considered to be customa

pears to prohibit targeted killing: “Civilians shall enjoy the protection a

this Section, unless and for such time as they take a direct part in hostiliti

interested in international law or the LOAC know that for several years 

“unless and for such time as they take a direct part in hostilities” has bee

ject of debate and the focus of meetings of international experts sponso

ICRC and the Asser Institute.55 The plain meaning of the phrase indicat

rorists and terrorist accomplices, such as weapon makers and communic

perts, cannot lawfully be targeted unless, at the time of targeting, they a

directly engaged in hostilities. Those who argue against such a constrict

tion urge that such terrorists should be lawful targets whenever and whe

locations can be confirmed.

But events on the ground in Afghanistan and Iraq are making the deb

As Melzer notes:

Today, targeted killing is in the process of escaping the shadowy realm of half

and non-accountability, and [is] gradually gaining legitimacy as a method of 

terrorism and “surgical” warfare. Several Governments have expressly or im

acknowledged that they have resorted to targeted killings in their respective e

curb insurgent or terrorist activities.56

Those governments include the United States, Israel, Russia, Pakistan, t

Kingdom, Germany and Switzerland.

For better or worse, in the United States the 9-11 attacks caused shift

opinion, and often shifts in public policy, relating to terrorism and terr

example, torture, previously rejected out of hand, shockingly became acc

2005 survey indicated that sixty-one percent of the American public wou

out torture,57 and President George W. Bush said in a nationally televis

that “the CIA used an alternative set of procedures”58 when interrogati

captured terrorist suspects.

Another post-9-11 change in policy and attitude related to target

Once anathema to America (in public at least),59 after 9-11 targeted killin

tolerated,60 then embraced. Under a series of classified presidential findi

dent Bush reportedly broadened the number of named terrorists who ma

if their capture is impractical.61 In early 2006, it was reported that since 9

had successfully carried out at least nineteen targeted killings via Pred

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Hellfire missiles. In June 2006, the targeted killing of Abu Musab a

leader of al Qaeda in Iraq, was celebrated as a US strategic and political 

In October 2001, a US Predator killed the military chief of al Qaeda in 

stan. In June 2004, a senior Taliban planner, Nek Mohammad, was killed 

launched missile. In May 2005, on the Afghanistan-Pakistan border, a CIA-

UAV killed Haitham al-Yemeni, a suspected senior figure in Afghan al Qa

tions.62 In August 2008, an Afghan warlord’s camp in the mountains o

was destroyed and nine insurgents reportedly killed by four missiles.63 

continues to lengthen. Though it occasionally admits to targeted killin

government remains reticent and evasive in acknowledging employm

tactic, but its value to ground combat operations is apparent.64

Even considering their inevitable collateral damage, the effectivenes

mated with Hellfire missiles, combined with their relatively low cost 

exposure of friendly personnel, assures their continued use. Although 

errors, actual or contrived, are media staples,65 the international tren

their legitimization, whether or not seen to be in compliance with Arti

all but assured.

Meanwhile, in April 2002, coalition members met in Geneva and agre

“pillars” of change in Afghanistan. The United States assumed respon

building the Afghan army; Germany agreed to build the Afghan police; 

on the judicial system; the United Kingdom was to take the lead on curb

drug use; and Japan accepted responsibility for disarmament, demilitari

reintegration of the Afghan warlords and militias.66 Six years on, one 

smile ruefully at such ambitious plans.

By late 2002 an Afghanistan conflict timeline was discernable. The U

was in October 2001. Coalition forces removed the Taliban from power 

ber.67According to the 2001 Afghan Bonn Agreement, Afghan sovereign

in December 2001 with the establishment of the Interim Authority.68 

those dates, the international armed conflict phase of the “war” lasted 

days and the US occupation a mere fifteen days. In June 2002 the Afghan

transitional government referred to as a Loya Jirga, or grand assembly.

In terms of ground combat, one observer noted that “[d]uty in Afghan

turning out to be the low-key operation many expected.”69 An infantry 

ported, “Afghanistan is home to some of the most extreme terrain and 

mental conditions in the world. During our time there we operated 

mountainous terrain in excess of 8,000 feet [above] mean sea level, with 

tures ranging during the day from 80 to 100 degrees.”70

Through 2003 Afghanistan’s stresses on troop availability were reflec

lengths: Army tours of duty were from nine to twelve months; Marine C

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rotated into and out of country every seven months; Air Force personn

every three or four months. Five years later, manning levels and tour len

tinue to bedevil Pentagon planners.

Transfer of Protected Persons from Afghanistan to Guantanamo 

During the Newport workshop, several of us wondered why more has 

made of the movement of prisoners from Afghanistan and Iraq to Gu

Bay, Cuba. The history of deportations in armed conflicts is familia

World War I Germany deported thousands of French and Belgian citize

many as forced laborers. The German action was called “an act of tyranny

to all notions of humanity.”71 Georg Schwarzenberger wrote: “In Wor

Nazi Germany resorted to deportation as part of its policies of terrorisati

termination and, even more so, for the purpose of implementing its sla

programme.”72 In response, the Charter of the International Military T

Nuremberg specified that the deportation of civilians from occupied ter

for any purpose—was a crime against humanity and a breach of the law

toms of war.73 In the post-war “Subsequent Proceedings,” tried under au

Control Council Law No. 10, unlawful deportation was among the char

eral of the twelve military tribunals. National tribunals prosecuted indiv

deportation as well.74

Article 49 of Geneva Convention IV addresses the removal of protecte

“Individual . . . transfers, as well as deportation of protected persons from 

territory to the territory of the Occupying Power or to that of any othe

occupied or not, are prohibited, regardless of their motive . . . .”75

The Commentary to Convention IV explains, “There is doubtless no n

an account here of the painful recollections called forth by the ‘deportati

Second World War. . . . The prohibition . . . is intended to forbid such ha

tices for all time. . . . The prohibition is absolute and allows of no exceptio

How then to explain the history of forced movement of individuals from 

stan and Iraq to Guantanamo in the “war against terrorism”?

In non-international conflicts, Additional Protocol II mand

“[c]ivilians shall not be compelled to leave their own territory for rea

nected with the conflict.”77 The Statute of the International Criminal Co

ders deportations in non-international conflicts a war crime as well, 

statutes of the International Criminal Tribunal for the former Yugoslav

and International Criminal Tribunal for Rwanda denominate depor

crimes against humanity.79

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The ICRC

s study, Customary International Humanitarian Law,states

ous military manuals specify the prohibition of unlawful deportation or 

civilians in occupied territory.”80 The study goes on to specify the leg

thirty-nine States, several applicable in non-international conflicts, mak

tation of civilians a domestic offense. The ICRC study finds State practic

lish the rule against deportation, in both international and non-int

armed conflicts, as customary international law.81 Finally, Geneva Conv

mandates that “[p]rotected persons accused of offenses shall be detained 

cupied country, and if convicted they shall serve their sentences there.”

These prohibitory sources against deportation indicate the incontrov

ture of the prohibition. Throughout the armed conflict in Afghanistan a

occupation, Article 49 applied, prohibiting the deportation of protecte

from the occupied State to Guantanamo.

Who is a “protected person” whose deportation is prohibited

Convention IV, Article 4, tells us that, essentially, a protected person is s

an international armed conflict, other than a POW, who is in the hands o

side. There are limitations on the application of protected person status, o

notably the “nationality requirement” and cobelligerents. The cobellig

quirement of diplomatic representation is significant,83 because at the t

armed conflict with the United States, the Taliban government did not 

relations with the United States. The nationality and cobelligerent limi

protected person status did not apply to nationals of Afghanistan vi

United States.

Can extraordinary measures, such as deportation, be taken in the case 

ful combatants, as many Afghan insurgents were? The “unprivileged b

has been characterized by the ICRC “as describing all persons taking a dir

hostilities without being entitled to do so and who therefore cannot be c

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 i

civilian by day, is neither a civilian nor a lawful combatant. He is an u

combatant. He is a combatant in the sense that he can be lawfully targete

enemy, but he cannot claim the privileges appertaining to lawful combatan

does he enjoy the benefits of civilian status . . . .85

Captured unlawful combatants are entitled to the basic hum

protections of Common Article 3 and of Article 75 of Additional Pr

While being an unprivileged belligerent is not a war crime, the unlawful c

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forfeits the combatant

s privilege and potential POW status, and may b

for law of war violations that made him an unlawful combatant.

What is “deportation” in the LOAC? William Schabas states that

[d]eportation . . . involves the movement of individuals, under duress, from wh

reside to a place that is not of their choosing. Deportation would involve such 

when an international border is crossed. It must be proven that the 

intentionally perpetrated an act or omission to effect such deportation . . . that 

motivated by the security of the population or imperative military reasons.87

ICTY jurisprudence defines deportation simply as forcible transfer bey

home State borders,88 and finds it an inhumane act.89

In the pertinent timeframe, the seventy-seven-day-long US-Afghan

flict, whose deportation to Guantanamo Bay was prohibited? Answer

unlawful combatants who were nationals of a State other than Afghanista

cause Afghanistan lacked normal diplomatic relations with the Unit

Afghan nationals held by the United States in occupied Afghanistan wh

legedly unlawful combatants. Individuals in both categories were 

persons.

The only discovered US government document addressing depor

Guantanamo is a March 2004 draft opinion written by the Justice Dep

Office of Legal Counsel. The fourteen-page memorandum to Alberto 

then–Counsel to the President, is entitled “Permissibility of Relocatin

‘Protected Persons’ from Occupied Iraq.”90 Relying on a definition of d

taken from Roman times, the draft memorandum argues that Geneva C

IV does not prohibit the deportation of protected persons who are illeg

presumably meaning foreign fighters—captured in Iraq. Creating the LO

whole cloth, the memorandum argues that protected persons, even if n

the State in which captured, may be deported as long as they have not 

mally accused of wrongdoing, apparently an effort to circumvent the re

of Article 76 of the Fourth Convention that protected persons accused o

be detained in the occupied State.

The draft memorandum’s conclusion is that the United States may 

deport—protected persons when the intent is not to accuse them of w

but only to interrogate them. From the memorandum: “[A]rticle 49(1)

tion of forcible transfers and deportations out of occupied territory . . . s

be construed to extend to temporary transnational relocations of brief b

definite duration” (emphasis in original). This would allow authorities 

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designate a protected person as destined for interrogation and deport hi

further accountability.

The draft memorandum was never finalized,91 although its conclus

confirmed by Mr. Gonzales when he was nominated to be Attorney Gen

United States.92 “A related issue that has inexplicably escaped broader a

the fate of persons apprehended in the ‘war on terrorism’ who were or 

held at undisclosed locations.”93 The draft memorandum was the basis 

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 

to Guantanamo in contravention of Article 49? It is unlikely there will ev

isfactory answer.

Increased War Crimes Prosecutions—Perception or Fact?

Large-scale ground operations in Afghanistan, e.g., the US Army’s Oper

aconda (March 1–16, 2002), Valiant Strike (March 20–25, 2003) and Mo

per (September 4–5, 2003), do not usually give rise to charges of LOAC 

Day-to-day operations in urban Afghan settings, however, have seen ma

legations. War crime charges are even more frequent in Iraq, where urb

tions are more common.

Anytime a government puts high-power weapons in the hands of v

men and women, bad things will inevitably happen.95 In fighting terrori

nore customary battlefield norms, incite retaliation and hide within the 

batant population, the spur for opposing forces to commit offens

heightened. The “CNN factor” often ensures that offenses are broadcast w

in near-real time. The armed forces are in a difficult position: fail to form

tigate even flimsy allegations of wrongdoing and be pilloried for coveri

crimes, or prefer court-martial charges with slim evidence and be p

overly aggressive martinets.

But one may ask, as some workshop attendees did around Naval W

luncheon tables, have LOAC violations actually increased in Afghanista

their reporting and prosecution increased? Are US armed forces member

trolled today or has a heightened awareness of the law of armed conflict 

greater command awareness and increased prosecutions? Either way, ane

idence suggests that there have been proportionally more courts-m

LOAC-related offenses than in previous armed conflicts.

One cannot obtain accurate numbers of courts-martial for such violat

of the military Services annually reports total numbers of convictions (a

to charges) to the Court of Appeals for the Armed Forces, but the conv

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not broken down by offense. Even if they were, the murder of a POW, fo

would simply be reported as a murder, with no victim, no grave brea

LOAC violation indicated. There is no requirement in federal law or mil

lation to do otherwise.96 Nor are media reports reliable indicators of indi

criminality.

In December 2004 the Department of Defense reported that 130 US co

had been punished or charged with prisoner abuse in Afghanistan

Guantanamo.97 Numbers in other reports for specific geographic areas 

any event, there is no base point to which any number may be compared

unusually high number or normal or unusually low? Figures recorded i

rent conflict cannot be compared to similar offenses in prior conflict

even if numbers had been kept—and they were not—every conflict is un

fundamentally different conflict characteristics that would make co

meaningless.

In both Afghanistan and Iraq there have clearly been a disturbingly h

ber of deaths of detainees at the hands of US warders. The New York 

ported: “At least 26 prisoners have died in American custody in 

Afghanistan since 2002 in what Army and Navy investigators have con

suspect were acts of criminal homicide, according to military officials

months later the Los Angeles Times reported that “[a]utopsy reports on 

ers who died in US custody in Iraq and Afghanistan indicate that 21 were 

homicide, including eight who appear to have been fatally abused by 

tors.”100 And a few months after that the Philadelphia Inquirer reported

eight detainees in Iraq and Afghanistan have died in US custody since Au

and 34 of them were suspected or confirmed homicides, a human-rights 

ported yesterday. Only 12 cases have resulted in punishment of any kin

Which media figures, all said to be based on armed forces figures, can 

upon—if any?

There are media reports of combatant misconduct occurring in Af

most involving detainee mistreatment102 but not all. A closely watched 

in March 2007 in Jalalabad, when it was reported that ten to nineteen Af

combatants were killed (the actual number has never been settled) and th

more wounded by uncontrolled US fire when a Marine Corps convoy w

car bomb that slightly wounded one Marine. As the convoy sped from t

allegedly continued to fire on Afghan civilians over the course of a six-mil

The area’s Army commander immediately ordered the Marine unit out of 

try, initiated an investigation, paid $2,000 in compensation for each repo

and apologized to the victims and their families on behalf of the United S

Marine commander of the convoy unit was relieved by his Marine Corps 

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the same time the Commandant of the Marine Corps, General James Con

licly expressed his anger at the Army commander’s expressions of regret a

tance of responsibility, which General Conway considered prema

involved Marines disputed the initial account, insisting they had only ret

after the initial car bombing and subsequent lengthy escape.103

In May 2008, a court of inquiry cleared all Marines involved of crimin

In a fourteen-month arc the incident moved from newspaper front pag

pages to silence, leaving hard feelings between the Marines and the Arm

ghans distrustful and embittered against the United States. If not typic

not uncommon progression, initially raising the specter of Haditha-lik

unlawful conduct, fading to anticlimax and no charges.

There have indeed been numerous courts-martial involving war crim

and there have been instances in which prosecution was found unwarran

have been convictions in which sentences were not commensurate w

fenses of which the accused was convicted.104 All that can be said with as

that, after seven years in Afghanistan, there is no documented answer to 

tion of whether there are more LOAC violations than in prior conflicts; 

ments. Several attendees suggested the Department of Defense should re

all formal allegations of violent offenses involving indigenous indivi

armed service personnel, including prisoners of any description, whether 

sulting in trial, be periodically reported by the armed Service involved 

mon DoD authority.

Meanwhile, in mid-2006 the US Marine Corps departed Afghanista

ground fighting to the Army and NATO combatants, and fledgling A

tional Army troops. The Marine units would move on to Iraq. One obser

“The end of the Corps’ Afghan deployments comes as the overall U.S. com

to that country is on the decline. Military officials have said that Ameri

will be reduced from the roughly 23,000 troops there now to 16,000 by 

the summer [of 2006].”105 Planning was underway for the so-called “surg

which began in February 2007. Even at some tactical cost, US troop draw

Afghanistan were required to meet the manpower needs of the coming “

2007, Afghanistan was being referred to as the “forgotten war.”106 But

surge was over, the Marines were back,107 to the consternation of th

Corps’ Commandant.108 But, almost immediately, new plans were anno

dicating they would yet again leave Afghanistan, this time within a yea

undulating personnel requirements, presenting planners with constant

targets, are one more price of fighting two wars at once.

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Conclusion

After more than seven years of ground combat in Afghanistan, at the co

than nine hundred lives, well over five hundred of them American, a

spent in excess of $175 billion,110 where are we?

We have succeeded in deposing the Taliban government and ins

elected parliament. We have disrupted al Qaeda in Afghanistan. There 

major increase in availability of basic health care. A central banking sys

stable currency are in place. Yet, mid-2008 reports, not all of which a

based, present a discouraging picture. Among media reports were these

in the provinces ringing the capital, Kabul, has deteriorated rapidly 

months. Today it is as bad as at any time since the beginning of the w

“[T]he Taliban are demonstrating a resilience and a ferocity that are rai

here [in Kabul], in Washington and in other NATO capitals.”112 “Al Qae

capable of attacking inside the United States than it was last year . . . .”

were ten times as many armed attacks on international troops and civilia

tors in 2007 as there were in 2004. Every other measure of violence, from 

bombs to suicide bombers, is also up dramatically.”114 In April 2006, a N

telligence Estimate reported that “the global jihadist movement . . . is 

and adapting to counterterrorism efforts.”115 In 2007, the last year for w

are available, enemy encounters, roadside bombs, suicide bombers an

figures all reached new highs. In 2008, the Baltimore Sun reported: “The 

of the House Armed Services Committee, Democratic Rep. Ike Skelto

souri, has said the United States ‘risks strategic failure’ in Afghanistan.”

Poppy crop eradication, once a primary US mission in Afghanistan

abandoned. The media has reported that “[t]he Marines don’t want to a

the local population by joining US-backed efforts to destroy the crop. ‘

coming to eradicate poppy,’ [a Marine major] says. ‘We’re coming to 

Taliban.’”117

An open Pakistan border combines with Pakistani perfidy and Afgha

tion to undercut coalition efforts against a resurgent Taliban. The invas

eclipsed Afghanistan as the battleground against terrorism, stripping it 

resources, American funding and public interest. So far, efforts to deny 

to terrorists in Afghanistan have been unsuccessful. One reporter allege

cious cycle, narcotics, corruption and the absence of law and order are r

heart of the government and rippling the economy. Despite massive W

vestment, Afghanistan is close to being a failed state.”118

An August 2008 editorial in the New York Times reflected the widesp

cern regarding the progress of Operation Enduring Freedom:

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gy ggQ

are consolidating control over an expanding swath of territory sprawling acr

sides of the porous Afghanistan-Pakistan border. . . .Unless the United States

and its central Asian allies move quickly, they could lose this war. . . . [s]even ye

already been wasted. . . . Afghanistan’s war is not a sideshow. It is the principal 

confrontation between America and NATO and the forces responsible for 9/11 

Seven years of ground combat in Afghanistan have not gained control o

stan’s borders, which is critical to ultimate success. The Afghan govern

not yet established its authority or credibility. The Taliban are far from 

The United States is not at the point of taking Kipling’s advice to “

your rifle and blow out your brains An’ go to your Gawd like a soldier.” B

a large measure of ground combat yet to come in Afghanistan.

Notes

1. Gerry J. Gilmore, Pentagon Proposes Change to U.S. Command Structure 

stan (Aug. 8, 2008), available at http://www.defenselink.mil/news/newsarticle.aspx?

2. Extremist Movements and Their Threat to the United States, Hearing Before th

on Near East and South Asian Affairs of the S. Foreign Relations Comm., 106th Con

(statement of Amb. Michael A. Sheehan, Coordinator for Counterterrorism, US De

available at http://www.state.gov/www/policy_remarks/1999/991102_sheehan_terr

3. Address by President George W. Bush, The War Against Terrorism, in DIGEST 

STATES PRACTICE IN INTERNATIONAL LAW 856–58 (Sally Cummins & David Stewart 

4. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 31 (4th ed. 2005

5. Id.

6. S.C. Res. 1386, ¶ 3, U.N. Doc. S/RES/1386 (Dec. 20, 2001).

7. Richard W. Stewart, The United States Army in Afghanistan, Operation End

dom, October 2001–March 2002, at 8 (2003), available at http://www.history.army.mi

Afghanistan/Operation%20Enduring%20Freedom.htm.

8. DOUGLAS J. FEITH, WAR AND DECISION 104 (2008). Feith notes that ther

been Central Intelligence Agency paramilitary personnel on the ground in Afghan

October 19.

9. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter G

vention I]; Convention for the Amelioration of the Condition of Wounded, Sic

wrecked Members of Armed Forces at Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 

[hereinafter Geneva Convention II]; Convention Relative to the Treatment of Priso

art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Conventi

Convention Relative to the Protection of Civilian Persons in Time of War art. 2, Aug

U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]: all reprinted in D

ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 2

301, respectively. Article 2 provides in pertinent part that “the present Convention s

all cases of declared war or of any other armed conflict which may arise between two 

the High Contracting Parties,” i.e., international armed conflict.

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armed conflict not of an international character occurring in the territory of one 

Contacting Parties,” i.e., non-international armed conflict.

11. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW O

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 Re

Protection of Victims of International Armed Conflicts art. 43(1), June 8, 1977, 1125 

reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 9, at 422 [hereinafter 

Protocol I]. See also Geneva Convention I, supra note 9, art. 13(1).

15. Marco Sassòli, Query: Is There a Status of “Unlawful Combatant”?, in ISSUES I

TIONAL LAW AND MILITARY OPERATIONS 57, 61 (Richard B. Jaques ed., 2006) (Vol. 8

War College International Law Studies).

16. WILLIAM L. SHIRER, THE RISE AND FALL OF THE THIRD REICH 33–34, 42–4

17. Posting of John B. Bellinger, Unlawful Enemy Combatants (Jan. 15, 2007

opiniojuris.org/author/john-bellinger/.

18. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GE

VENTIONS OF 12 AUGUST 1949, at 508 (Yves Sandoz, Christophe Swinarski & Brun

mann eds., 1987).

19. Geneva Convention III, supra note 9, art. 4A(1).

20. Draft Articles on the Responsibility of States for Internationally Wrongful A

of the International Law Commission on the Work of its Fifty-third Session, U

56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), available at http://untreaty.un.o

instruments/english/draft%20articles/9_6_2001.pdf. Article 10 continues, “[t]he co

insurrectional movement which becomes the new Government of a State shall be co

act of that State under international law.” Article 11 adds, “[c]onduct which is not att

a State under the preceding articles shall nevertheless be considered an act of that Sta

ternational law if and to the extent that the State acknowledges and adopts the cond

tion as its own.” These articles appear to fairly encompass the Taliban’s relation to 

Afghanistan.

21. Geneva Convention III, supra note 9, art. 4A(1).

22. DINSTEIN, supra note 11, at 48. Footnote omitted.

23. Marco Sassòli argues, “This allegation may astonish those who remember 

Operation Enduring Freedom, the United States stressed that it attacked Taliban co

control centers and did not complain that it was impossible to distinguish the Taliba

ians.” Sassòli, supra note 15, at 61; see also Jennifer Elsea, Congressional Research Se

ment of “Battlefield Detainees” in the War on Terrorism (Jan. 13, 2005), at 7; Robert 

& Brian D. Tittemore, Unprivileged Combatants and the Hostilities in Afghanistan: 

and Rights Under International Humanitarian and Human Rights Law, ASIL TASK FO

(American Society of International Law), Dec. 2002, at 23–31, available at http://w

archive/Journals/goldman.pdf; George H. Aldrich, Editorial Comments, The Taliba

and the Determination of Illegal Combatants, 96 AMERICAN JOURNAL OF INTERNAT

891, 894 (2002).

24. Geneva Convention III, supra note 9, art. 5; Additional Protocol I, supra n

45.1. George Aldrich writes,

Without a doubt, the most difficult element to defend of the decisions made . 

respect to the prisoners taken in Afghanistan is the blanket nature of the dec

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president ruled that not a single Taliban soldier, presumably not even th

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 organizatio

tional laws and as an international outlaw”).

28. See Geneva Convention IV, supra note 9, art. 33; Additional Protocol I, su

art. 51.2; Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of Non-International Armed Conflicts arts. 4(2)(d) & 13(2), J

1125 U.N.T.S. 609,reprinted in DOCUMENTS ON THE LAWS OFWAR, supra note 9, at 

after Additional Protocol II].

29. See Memorandum from John C. Yoo & Robert Delahunty to William J. Hay

eral Counsel, Department of Defense, Re: Application of Treaties and Laws to al 

Taliban Detainees (Jan. 9, 2002),reprinted in THE TORTURE PAPERS: THE ROAD TO A

38 (Karen J. Greenberg & Joshua Dratel eds., 2005) [hereinafter Yoo Memorandum] 

Article 2 . . . islimited only to cases of declared war or armed conflict ‘between two or 

High Contracting Parties.’ Al Qaeda is not a High Contracting Party . . . Al Qaeda is 

by common Article 3, because the current conflict is not covered by the Geneva Conv

Article 3... shows that the Geneva Conventions were intended to cover either: a

wars between Nation States . . . or non-international civil wars . . . . Our conflict w

does not fit into either category”). The same conclusion applied to the Taliban (“Ar

that the Convention shall apply to all cases of declared war or other armed conflict 

High Contracting Parties. But there was no war or armed conflict between the Unite

Afghanistan . . . if Afghanistan was stateless at that time. No[r], of course, is there a st

armed conflict between the United States and Afghanistan now”). And “[e]ven if Afgh

der the Taliban were not deemed to have been a failed State, the President could sti

Geneva Conventions as temporarily suspended during the current military action.”

30. See Memorandum from Colin L. Powell to Counsel to the President & Ass

President for National Security Affairs, Draft Decision Memorandum for the Pres

Applicability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 200

in TORTURE PAPERS, supra note 29, at 122.

31. Memorandum from William H. Taft IV, Legal Adviser, Department of State

to the President, Comments on Your Paper on the Geneva Convention (Feb. 2, 200

in id. at 129.

32. Yoo Memorandum, supra note 29 (“The weight of informed opinion stron

the conclusion that . . . Afghanistan was a ‘failed State’ whose territory had been larg

and held by violence by a militia or faction rather than by a government. According

stan was without the attributes of statehood necessary to continue as a party to the G

ventions, and the Taliban militia[,] like al Qaeda, is therefore not entitled to the pr

the Geneva Convention”).

33. Memorandum from Jay S. Bybee to Alberto R. Gonzales, Counsel to the P

William J. Haynes II, General Counsel of the Department of Defense, Re: Applicatio

and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002),reprinted in TORTURE PA

note 29, at 81 (“Further, common Article 3 addresses only non-international conflic

within the territory of a single state party, again, like a civil war. This provision wou

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states”).

34. Exec. Order No. 13,440, 72 Fed. Reg. 40,707 (July 24, 2007), availab

www.fas.org/irp/offdocs/eo/eo-13440.htm (“On February 7, 2002, I determined for 

States that members of al Qaeda, the Taliban, and associated forces are unlawful ene

ants who are not entitled to the protections that the Third Geneva Convention prov

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 Ch

Status of Taliban and Al Qaeda (Jan. 19, 2002), reprinted in TORTURE PAPERS, supr

80.

38. JACK GOLDSMITH, THE TERROR PRESIDENCY 120 (2007).

39. Ex parte Quirin, 317 U.S. 1 (1942).

40. Mark D. Maxwell & Sean M. Watts, ‘Unlawful Enemy Combatant’: Status, Th

pability, or Neither?, 5 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 19, 21 (200

41. Marco Sassòli, The Status of Persons Held in Guantánamo under Internation

tarian Law, 2 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 96, 123 (2004).

42. Kenneth Watkin, 21st Century Conflict and International Humanitarian Law

or Change?, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAUL

286 (Michael N. Schmitt & Jelena Pejic eds., 2007).

43. Charles H. B. Garraway, ‘Combatants’ – Substance or Semantics?, in id., at 3

44. US Department of Defense, Directive 2310.01E, The Department of Defen

Program (Sept. 5, 2006), available at http://www.dtic.mil/whs/directives/corres/p

.pdf.

45. Chairman of the Joint Chiefs of Staff, Joint Publication 3-63, Detainee Opera

(2008).

46. Stewart, supra note 7, at 10–16.

47. Staff Report, 26th MEU Tapped for Enduring Freedom, MARINE CORPS TIM

2001), at 9; Gordon Lubold, Marines Prepare to Leave Afghanistan, MARINE CORPS T

2002), at 10.

48. Afghanistan’s first US military killed in action was Army Sgt. 1st Class Nath

man, killed in a January 1, 2002 firefight in Paktia.

49. For Predator characteristics, see MQ-1 Predator Unmanned Aircraft System, h

.mil/factsheets/factsheet.asp?fsID=122; Predator RQ-1 / MQ-1 / MQ-9 Reaper - Unma

Vehicle (UAV), USA, http://www.airforce-technology.com/projects/predator (both 

Feb. 24, 2009).

50. It may be argued that the Vietnam War’s Phoenix Program, Operation El D

yon (the 1986 bombing of Libyan leader Muammar Qadhafi), or the attacks on 

Laden in 1998 (when he was linked to the bombing of US embassies in Dar es Salaa

robi), constituted targeted killing. Those attacks may also be argued to be assassinat

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]

killing of an individual by a government or its agents.” William C. Banks & Peter Rav

Targeted Killing and Assassination: The U.S. Legal Framework, 37 UNIVERSITY OF 

LAW REVIEW 667, 671 (2003). Another is “the intentional killing of a specific civilian 

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the direction and authorization of the state in the context of an international or 

tional armed conflict.” Gary D. Solis, Targeted Killing and the Law of Armed Conflict, N

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 In

Humanitarian Law (Oct. 25–26, 2004), available at http://www.icrc.org/Web/eng/s

htmlall/participation-hostilities-ihl-311205/$File/Direct_participation_in_hostilitie

.pdf.

56. MELZER, supra note 54, at 9–10.

57. Will Lester, Poll Finds Support for Use of Torture in War on Terror, WASHING

Dec. 7, 2005, at A1.

58. See Press Release, The White House, President Discusses Creation of Mi

missions to Try Suspected Terrorists (Sept. 6, 2006), available at http://georgewbush

.archives.gov/news/releases/2006/09/20060906-3.html (“In some cases, we determin

viduals we have captured pose a significant threat, or may have intelligence that we a

need . . . and they withhold information that could save American lives. In these case

necessary to move these individuals to an environment where they can be held se

tioned by experts, and—when appropriate—prosecuted for terrorist acts”).

59. Self-licensed to kill, ECONOMIST, Aug. 4, 2001, at 12 (“Israel justifies these ex

killings as self-defense. . . . But the usual context of such a discussion would be that t

involved were at war . . . .”); Editorial, Assassination Ill Befits Israel, NEW YORK TI

1997, at A24 (“[T]rying to assassinate Palestinian leaders in revenge is not the answ

60. In 1989, Abraham D. Sofaer, then US State Department Legal Adviser, equ

While the U.S. regards attacks on terrorists being protected in the sovereign terr

other States as potentially justifiable when undertaken in self-defense, a State’s a

establish the legality of such an action depends on its willingness openly to 

responsibility for the attack, to explain the basis for its action, and to demonstr

reasonable efforts were made prior to the attack to convince the State whose ter

sovereignty was violated to prevent the offender’s unlawful activities from occu

Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY L

89, 121 (1989).

61. James Risen & David Johnston, Bush Has Widened Authority of C.I.A. to Ki

NEW YORK TIMES, Dec. 15, 2002, at A1.

62. MELZER, supra note 54, at 41, 409.

63. Associated Press, 9 Suspected Insurgents Killed in Missile Strike, Pakistan Says

TIMES, Aug. 14, 2008, at A7.

64. Josh Meyer, CIA Expands Use of Drones in Terror War, LOS ANGELES TIM

2006, at A1 (“The Predator strikes have killed at least four senior al Qaeda leaders, bu

civilians, and it is not known how many times they missed their targets”).

65. See, e.g., Candace Rondeaux, Civilian Airstrike Deaths Probed, WASHINGTON 

25, 2008, at A12 (“78 have died in three incidents this month alone, Afghan of

Carlotta Gall, British Criticize U.S. Air Attacks in Afghan Region, NEW YORK TIMES, A

at A1.

66. US GOVERNMENT ACCOUNTABILITY OFFICE, AFGHAN SECURITY: EFFORTS 

LISH ARMY AND POLICE HAVE MADE PROGRESS, BUT FUTURE PLANS NEED TO BE 

FINED 5 (2005), available at http://www.gao.gov/new.items/d05575.pdf.

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nomic Reconstruction, Jan. 26, 2006, http://www.america.gov/st/pubs-english/20

20060126120012dpnosmoht0.9750482.html.

68. Agreement on Provisional Arrangements in Afghanistan Pending the Re-es

of Permanent Government Institutions, attached to Letter from the Secretary-Gener

to the President of the Security Council para. I.3, U.N. Doc. S/2001/1154 (Dec. 5, 200

at http://www.afghangovernment.com/AfghanAgreementBonn.htm (“Upon the o

fer of power, the Interim Authority shall be the repository of Afghan sovereignty. . . 

shall, throughout the interim period, represent Afghanistan in its external relations a

cupy the seat of Afghanistan at the United Nations . . . ”).

69. Christian Lowe, Leathernecks Aim to Take Back a Province, MARINE CORPS 

28, 2004, at 10.

70. Paul Merida, Dismounted Infantry Operations, MARINE CORPS GAZETTE, N

39.

71. James W. Garner, Contributions, Requisitions, and Compulsory Service in Occ

tory, 11 AMERICAN JOURNAL OF INTERNATIONAL LAW 106 (1917).

72. II GEORG SCHWARZENBERGER, INTERNATIONAL LAW AS APPLIED BY INTE

COURTS AND TRIBUNALS: THE LAW OF ARMED CONFLICT 230 (1968).

73. Charter of the International Military Tribunal arts. 6(b) & 6(c), Aug. 8, 19

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. Mi

Strasboug, 1946, and Ct. of Appeal, July 24, 1946), III LAW REPORTS OF TRIA

CRIMINALS 23 (UN War Crimes Commission, 1948); Trial of Jean-Pierre Lex (Perm

at Nancy, May 13, 1946), VII LAW REPORTS OF TRIALS OF WAR CRIMINALS 23 (UN 

Commission, 1948).

75. Article 147 of Geneva Convention IV makes the unlawful transfer of protec

from an occupied area a grave breach, as does Additional Protocol I. Additional Prot

note 14, art. 85.4(a).

76. COMMENTARY IV GENEVA CONVENTION RELATIVE TO THE PROTECTION O

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 

available at http://www.un.org/law/icc/statute/romefra.htm.

79. Statute of the International Criminal Tribunal for the former Yugoslavia ar

Res. 827, U.N. Doc. S/RES/827 (May 23, 1993), available at http://www.icls.de/d

icty_statut.pdf; Statute of the International Criminal Tribunal for Rwanda art. 3(d

955, U.N. Doc. S/RES/955 (Nov. 8, 1994), available at http://www.un.org/ictr/statu

80. 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 458 (Rule 129) 

Henckaerts & Louise Doswald-Beck eds., 2005). The study notes that Israel argues th

of Geneva Convention IV was not meant to apply to the deportation of selected ind

reasons of public order and security, and that Article 49 is not customary internatio

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 “nation

belligerent State, shall not be regarded as protected persons while the State of which 

tionals has normal diplomatic representation in the State in whose hands they are.”

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NATIONAL REVIEW OF THE RED CROSS 45 (2003). In US domestic law, in the Milita

sions Act of 2006, an unlawful combatant is defined as a person who has eng

purposefully and materially supported another in engaging in, hostilities against 

States and its allies, and who does not qualify as a lawful combatant, or an individ

been deemed an unlawful enemy combatant by a Combatant Status Review Trib

other competent tribunal. Military Commissions Act of 2006 § 948 a(1), Pub. L. N

120 Stat. 2600 (Oct. 17, 2006) (codified in 10 U.S.C. § 47(A)).

85. DINSTEIN, supra note 11, at 29.

86. Jelena Pejic, ‘Unlawful/Enemy Combatants’: Interpretations and Consequenc

NATIONAL LAW AND ARMED CONFLICT, supra note 42, at 340; Department of the Ar

10, The Law of Land Warfare para. 31 (1956); UK MINISTRY OF DEFENCE, THE MAN

LAW OF ARMED CONFLICT para. 9.18.1 (2004); Prosecutor v. Delalic, Case No. 

Judgment, para. 271 (Nov. 16, 1998).

87. WILLIAM A. SCHABAS, THE UN INTERNATIONAL CRIMINAL TRIBUNALS 252

citing Prosecutor v. Naletilic et al., Case No. IT-98-34-T, Judgment, paras. 519–2

2003).

88. Prosecutor v. Kristic, Case No. IT-98-33-T, Trial Chamber Judgment, para

32 (Aug. 2, 2001). See also Prosecutor v. Naletilic, supra note 87, para. 519, where “fo

fer” is defined as “the movement of individuals under duress from where they resid

that is not of their choosing.”

89. Prosecutor v. Stakic, Case No. IT-97-24-T, Judgment, para. 662 (July 31, 20

90. Draft Memorandum from Jack I. Goldsmith, Assistant Attorney General, t

Gonzales, Counsel to the President, Re: Permissibility of Relocating Certain “Protect

from Occupied Iraq (Mar. 19, 2004), reprinted in TORTURE PAPERS, supra note 29, 

91. John R. Crook, Contemporary Practice of the United States Relating to Intern

Reported Removal of Prisoners from Iraq, 99 AMERICAN JOURNAL OF INTERNATIONA

266 (2005).

92. John R. Crook, Contemporary Practice of the United States Relating to Intern

99 AMERICAN JOURNAL OF INTERNATIONAL LAW 479, 484 (2005).

93. Jelena Pejic, Terrorist Acts and Groups: A Role for International Law?, 75 BR

BOOK OF INTERNATIONAL LAW 71, 94 (2004).

94. Dana Priest, Memo Lets CIA Take Detainees Out of Iraq, WASHINGTON PO

2004, at A1. Six of the initial detainees were Algerians captured in Bosnia and wer

turned over to the CIA.

95. In South Vietnam, from January 1965 to March 1973, 201 soldiers and 77 M

convicted by courts-martial of serious offenses against Vietnamese noncombatants. 

soldiers and twenty-seven Marines were convicted of murder or manslaughter of 

noncombatants. GUENTER LEWY, AMERICA IN VIETNAM 324–25 (1978).

96. During the US-Vietnam conflict, the US Army in Vietnam, at the direction of t

George Prugh, the Military Assistance Command–Vietnam Staff Judge Advocate, r

numbers of LOAC offenses referred to courts-martial. When he was transferred fr

the accounting coasted to a close. See GEORGE S. PRUGH, LAW AT WAR: VIETNAM 

(1975).

97. 130 Yanks Abused Inmates – Pentagon, DAILY NEWS (New York), Dec. 16, 2

98. Eric Schmitt, Pentagon Officials Are Hurrying to Correct Conditions in Iraqi P

YORK TIMES, Sept. 9, 2004, at A14, citing 111 cases in Iraq.

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YORK TIMES, Mar. 16, 2005, at A1.

100. John Hendren, Autopsies Support Abuse Allegations, LOS ANGELES TIMES, O

at A1.

101. Drew Brown, Report: U.S. Detainees’ Deaths Go Unaccounted, PHILADELPHIA 

Feb. 23, 2006, at A2.

102. Carlotta Gall, U.N. Monitor of Afghan Rights Accuses U.S. on Detentions, 

TIMES, Apr. 23, 2005, at A4; Tim Golden, Army Faltered in Investigating Detainee 

YORK TIMES, May 22, 2005, at A1; Tim Golden, Case Dropped Against U.S. Office

Deaths of Afghan Inmates, NEW YORK TIMES, Jan. 8, 2006, § 1, at 13; Tim Golden, Y

Afghans Died, Abuse Case Falters, NEW YORK TIMES, Feb. 13, 2006, at A1; Paul vo

Green Berets Face Hearing on Killing of Suspect in Afghan Village, NEW YORK TIM

2007, at A11.

103. Griff Witte, Marines Open Fire After Afghan Ambush, WASHINGTON POST, M

at A11; Ann Scott Tyson, Marine Unit Is Told to Leave Afghanistan, WASHINGTON PO

2007, at A12; David S. Cloud, U.S. Military Opens Inquiry Into Whether Marines Kille

After Attack on Convoy, NEW YORK TIMES, Mar. 24, 2007, at A6; Carlotta Gall, Mar

Called Excessive in Afghanistan, NEW YORK TIMES, Apr. 15, 2007, at A1; Paul von 

Criminal Charges Are Expected Against Marines, Official Says, NEW YORK TIMES, Apr

A14; David S. Cloud, U.S. Pays and Apologizes to Kin of Afghans Killed by Marines, 

TIMES, May 9, 2007, at A12; Josh White, 69 Afghans’ Families Get a U.S. Apology, W

POST, May 9, 2007, at A12; Peter Spiegel,Apology Wrong, General Says, LOS ANGELES 

18, 2007, at A7; Paul von Zielbauer, Marines to Conduct Inquiry Into the Killings of A

ians in March, NEW YORK TIMES, Oct. 12, 2007, at A10; Paul von Zielbauer, Marine 

Afghan Killings to Look at 2 Officers, Lawyer Says, NEW YORK TIMES, Oct. 21, 2007, at 

Zucchino, Marines Were Shot At, Army Expert Testifies, LOS ANGELES TIMES, Jan. 

A14; Thom Shanker, Marines Won’t Charge 2 Officers Whose Men Killed Afghans Afte

ing, NEW YORK TIMES, May 24, 2008, at A5; Andrew Tilghman, No Criminal Charg

CORPS TIMES, June 2, 2008, at 10.

104. Gary Solis, Military Justice?, US NAVAL INSTITUTE PROCEEDINGS, Oct. 2006

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, 

Norma Greenaway, U.S. public wakens to forgotten war; Almost no debate on merits of in

Afghanistan except to beat up on Bush, GAZETTE (Montreal), Aug. 13, 2007, at A14;In E

to push for NATO help in Afghanistan, CHRISTIAN SCIENCE MONITOR, Dec. 23, 2007, § 

107. Ann Scott Tyson, U.S. to Bolster Forces in Afghanistan, WASHINGTON PO

2008, at A4 (“The United States now provides about 26,000 of the roughly 54,000 fo

in Afghanistan and has the lead combat role in the eastern part of the country, while 

Operations forces operate in all regions. British, Canadian, Australian and Dutch for

combat roles in southern Afghanistan, where violence has surged in the past year . 

108. Kimberly Johnson, Conway: 2-Front war will overstretch Corps, MARINE CO

Feb. 4, 2008, http://www.marinecorpstimes.com/news/2008/02/marine_conway_0

Commandant of the Marine Corps is quoted by Johnson as saying: “We can’t have 

Afghanistan and one foot in Iraq. I believe that would be—an analogy would be hav

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 AlertN

2008, http://www.alertnet.org/thenews/newsdesk/L13172622.htm.

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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, 

TIMES, Aug. 14, 2008, at A1.

112. Carlotta Gall, Ragtag Taliban Show Tenacity in Afghanistan, NEW YORK TIM

2008, at A1.

113. Mark Mazzetti, U.S. Analyst Depicts Al Qaeda as Secure in Pakistan and More 

in 2007, NEW YORK TIMES, Aug. 13, 2008, at A7.

114. Bartle B. Bull, The Wrong Force for the ‘Right War,’ NEW YORK TIMES, Aug. 

A23.

115. Press Release, National Intelligence Counsel, Declassified Key Judgments of t

Intelligence Estimate, ‘Trends in Global Terrorism: Implications for the United S

April 2006, http://www.dni.gov/press_releases/Declassified_NIE_Key_Judgments.p

ited Feb. 26, 2009).

116. David Wood, Short-Term Strategies Threaten Success, BALTIMORE SUN, Apr. 

117. Jason Straziuso, Narrow Mission for Marines in Lush Afghan Poppy Fields

CHRONICLE, May 3, 2008, at A24; Paul Wiseman, In Afghanistan, Marines Begin 

Taliban, USA TODAY, Apr. 29, 2008, at 6.

118. Rory Stewart, How to Save Afghanistan, TIME, July 28, 2008, at 30, 32.

119. 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 

tion questions with factual situations at best remotely associated w

The following, for a fictitious law of war course final examination, might 

as representative:

State A is a sovereign State with a functioning government enjoying dip

relations with other nations. It is a member of the United Nations in good stan

since 1956 a State party to the 1949 Geneva Conventions. It is not a State par

1977 Protocols I and II Additional to the 1949 Geneva Conventions.

State B invades State A, displaces its government, and installs its own gove

States C, D, E and others covertly provide funding and other support, in

weapons, to indigenous resistance movements within State A, eventually forc

B to withdraw. Subsequently, the puppet government installed by State B d

occupation is overthrown by a tribal faction (Faction 1) covertly funded and su

by States C and D. Other tribes (Faction 2), with limited support from outside 

oppose rule by Faction 1. Neither replaces the previous government as the 

compete for control. The situation deteriorates into a civil war.

* Senior Associate Deputy General Counsel, International Affairs Division, Office 

Counsel, US Department of Defense. Statements contained herein are the personal 

author and may not necessarily reflect official positions of the Department of Def

other agency of the United States government. © 2009 by W. Hays Parks.

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gpg

alliances. Following long-standing custom within State A, tribal groups chan

and back again, as battle momentum shifts. Faction 1 replaces personnel casua

tribal defections primarily from a pool of volunteer and dragooned men of t

tribe in neighboring State C, divided by an official but artificial border creat

unsuccessful colonial power a century earlier that bisects historic, commo

territory.

Given their heavy financial investment in support of Faction 1 and, in the case 

C, for geopolitical reasons, States C and D decide they will recognize Faction 

government of State A when Faction 1 gains control of the entire count

prematurely recognizes Faction 1 when it captures Faction 2’s major city. Fa

success is short-lived. It suffers a significant military defeat, and retreats from 

2’s major city and the territory Faction 2 controls. Resistance to Faction 1 co

with varying levels of intensity throughout State A except in its territory of or

southern one-third of State A.

Neither State C nor D withdraws its premature recognition of Faction 1. Stat

States C and D in recognizing Faction 1 in order to continue bird-hunting priv

wealthy leaders enjoy in State A.

Faction 1 aggressively but unsuccessfully solicits recognition as the govern

State A from the United Nations, the European Union or any of the remain

nations. It hosts a transnational terrorist group, which trains and organizes 

nationals within State A before the group attacks two embassies of State E 

nations, killing 224 civilians and injuring more than 4,000. State E respon

limited military action against training camps of the transnational terrorist gr

requests that Faction 1 deliver to it the leader of the terrorist group. Faction 1 

do so if State E will recognize it. State E will not, and Faction 1 does not. State D 

of and relations with Faction 1 deteriorate because of Faction 1’s hosting the 

the transnational terrorist group, a former citizen of State D. Faction 1 rapidly b

an international pariah. Faction 1’s power within the territory it controls decl

Subsequently the transnational terrorist group hosted by Faction 1 launches 

attack on the territory of State E, a member of the North Atlantic Treaty Orga

(NATO). Almost three thousand people, primarily civilians, representing m

ninety nations are killed or missing and presumed dead. The United Nations 

Council and NATO support military action against Faction 1 and the trans

terrorist group. State E joins with military forces of State G and those 

governments to engage in military operations in State A against tribal forces 

with Faction 1 and the transnational terrorist group. States C, D and F withdr

recognitions of Faction 1.

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under tribal command and control rather than as conventional, highly str

uniformed military forces. Members of the transnational terrorist group dr

black or indigenous attire. Some special operations forces (SOF) from States E

other nations allied with them working with Faction 2 forces dress in Faction 

attire to avoid being targeted as high-value targets by Faction 1 and its trans

terrorist partners.

Tribal forces aligned with Faction 1 abandon their informal alliance with it to j

Faction 2 and military forces of States E and G to defeat Faction 1. The le

Faction 1 and the transnational terrorist group flee into tribal territorial areas in S

A new leader is identified to head a national, democratically elected govern

State A. His government gains recognition from the United Nations and 

governments (including States B, C, D, E, F and G) as the government of Stat

In the process of the military operations against Faction 1 and its transnational 

partner by States E and G, members of Faction 1 and the terrorist group are cap

What is the law of war status of the members of Faction 1 and transnational 

group forces captured during operations by States E and G? Had States E and G 

operations forces wearing Faction 2 attire been captured by Faction 1 forc

transnational terrorist partners, would they have been entitled to prisone

status?

Before the al-Qaeda attack on the United States on September 11, 200

military response of the United States against the Taliban and al-Qaed

nario would have qualified as humorously improbable enough to have 

school examination question. But it was precisely the situation faced by U

alition military forces as they entered Afghanistan to commence offensiv

operations against the Taliban and al-Qaeda in October 2001.

A simple—or perhaps better said, simplistic—approach would be to 

four 1949 Geneva Conventions to determine their applicability to Talib

Qaeda fighters or to the SOF of States E and G wearing indigenous attire 

tion with which they were aligned.1 However, as the fictitious professor’s 

tion question suggests, the situation is far from simple. More infor

necessary from factual, cultural and historical standpoints prior to determ

legal statuses of the individuals in question.

In an essay published in 2003, this author concluded that the Taliban w

government of Afghanistan at the time coalition operations began again

2001.2 Three highly respected colleagues argued that the Taliban was th

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government of Afghanistan.

Subsequent scholarship by historians, re

perts, military officers who served in Afghanistan during the period in 

official military histories and others provide more information than di

porary media reports, enabling a clearer picture from which to condu

analysis of Taliban status. Moreover, media accounts in large do not u

legal nuances, such as the distinction between physical presence of arm

in an area, international law conditions for a group to be regarded as 

ment or law of war criteria for occupation. “Occupation” in media pa

general term significantly different from the latter.

Following is a summary of the situation that existed during the perio

tion; analysis of the Taliban’s status as a government and the combatan

Taliban and al-Qaeda fighters; brief consideration of the law of war issue 

other nations’ special operations forces’ wear of indigenous attire as th

the Taliban and al-Qaeda; and analysis of the Bush administration’s lega

for denial of prisoner of war status to captured al-Qaeda and Taliban.

In considering the fact situation and legal determinations one may dra

two leading scholars have emphasized the importance of information b

face of applicable treaties. Writing in his classic 1911 War Rights on La

Moloney Spaight argued:

War law has never been presented to officers in an attractive form, as it might h

(I submit with diffidence) if the writers had insisted on the historical, hum

practical side rather than on the legal and theoretical one. But the difficult

subject, and the necessity for a careful study of it have not been brought h

officers: they underestimate its importance and complexity.4

More than eight decades later, Spaight’s view was shared by Sir Adam R

The laws of war are strange not only in their subject matter, which to man

seems a contradiction in terms, but also in their methodology. There is little t

of disciplined and reasoned assessment of how the laws of war have ope

practice. Lawyers, academics, and diplomats have often been better at interpr

precise legal meaning of existing accords or at generalizing about the circumst

which they can or cannot work. In short, the study of the law needs to be in

with the study of history: if not, it is inadequate.5

While the present author agrees with Spaight and Sir Adam as to the n

know and understand relevant history in order to apply the law, in cases s

conflict in Afghanistan knowledge of more than history is necessary. An 

tion of a nation’s history, its culture, its geography and other local facto

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necessary. Interpreting and applying the law of war is not always a matter 

imaging or “one size fits all.” These factors are relevant in interpreting n

law of war treaties in order to determine their application. Understandin

istan’s regional and national history, its geography, its culture, politica

and law of war history are important in determining whether capture

were entitled to prisoner of war status. So, too, are the history of the law 

the history of (and therefore the meaning and intent of) specific treaty p

There is no evidence any of these factors were considered by senior politi

and legal advisers in providing advice to President George W. Bush with 

prisoner of war entitlement for captured Taliban. Looking at the conf

ghanistan between the Taliban and the United States and its coalition p

one might consider an armed conflict in (for example) Norway, Swit

Australia is akin to considering the most common way to core an apple w

ing a baseball; each may have the same shape, but otherwise they are un

ferent. Political and military leaders and their legal advisers must be min

risk of automatically assuming all opponents and all situations fit neatly 

same treaty template. In the opening stages of US operations in Afghani

rance and skepticism of the law of war by some within the Bush adminis

sulted in errors of law and judgment with respect to the legal basis for 

protection for captured Taliban and al-Qaeda, and the legal rationale fo

prisoner of war status to them.6

In this regard this author has heard it said, “As all 194 nations are St

to the 1949 Geneva Conventions, they have universal applicability.” T

ment, while factually and legally accurate, fails to recognize that legal ap

differs from application in fact. The quoted statement tends to sugges

mirror imaging in application. The title of the volume in which Sir Ada

ments are contained—The Laws of War: Constraints on Warfare in th

World—acknowledges not only the predominately Western European 

the law of war but the challenges that may be faced in its application o

tions of Western European tradition.7

It is in this context that the question of the statuses of combatants 

fought by the United States and its allies against the Taliban and al-Qa

ghanistan in late 2001 is examined. The specific time frame will be from 

of the first US military ground force elements in Afghanistan on October 

to the signing of a memorandum by President George W. Bush on Febru

which, inter alia, accepted the conclusion of the Department of Justic

prisoner of war status to captured Taliban and al-Qaeda.9

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Afghanistan

Afghanistan has been described as having “three constants: perpetu

fighting between tribal ethnic groups, the dominance of Islam in society, 

vention by external actors using this discord to achieve influence in the c

A nation divided by mountainous terrain, limited in modern transportat

opment and with few large cities contributes to emphasis on tribal loyalt

decentralized form of government and strong resistance to central auth

citizens.11 Understanding its culture and local dynamics is critical to un

ing Afghanistan; in contrast to Western European nations, controlling 

stan’s capital city of Kabul does not necessarily equal control of the ent

for example.12 Even within tribes, rivalries and blood feuds were and are a 

Historian Louis Dupree observed, “No Pashtun [the ruling class in Afgha

more than two centuries13] likes to be ruled by another . . . particularly 

from another tribe, sub-tribe, or section.”14 As is the case in other tribal-c

tions, tribes in Afghanistan historically have been inclined to suspend t

ries and blood feuds to resist foreign invasion, if only briefly enough to d

before returning to their internal competition.15 Shultz and Dew offe

proverb that could be said to apply equally well to Afghanistan tribal warr

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 tr

Somalia, quote I. M. Lewis’s observation that applies equally well to Afg

tribal traditions: “Although they esteem fighting so highly, the pastoralis

standing military organization or system of regiments. Armies and raid

are ad hoc formations and while feuds often last for years, and sometim

tions, they are generally waged in guerrilla campaigns.”17

Afghanistan’s history has included invasion by foreign powers and co

for its control as a commercial route or “buffer zone” by foreign gov

most commonly known for the nineteenth-century competition betwee

and Russia first named “The Great Game” by Captain Arthur Conolly of 

Cavalry, later popularized by Rudyard Kipling in his 1901 novel Kim.

18 

one another or foreign invaders, alliances often were based on bargain

than loyalties, and loyalties were fleeting. Tribal forces changed sides fre

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each saw the tide of battle shifting or if offered 

a better dealby the oppo

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, extensi

the most part beyond the scope of this author’s topic.20 However, it co

point germane to understanding the situation on the ground in Octobe

through the period in question.

The artificiality of Afghanistan’s borders, particularly with respect to 

border with Pakistan, is the result of an arbitrary nineteenth-century col

sion of tribal territory for British security purposes. It is named for 

Mortimer Durand, who negotiated and drew a line dividing Wazari triba

to establish a border between Afghanistan and what today is Pakistan. I

to the fact that a line drawn on a map seldom is easy to find with precis

ground, particularly in terrain as rugged as that between Pakistan and Af

the “backdoor” it offered between the two nations played heavily in muja

port in fighting the Soviet occupation and Wazari support for the Talib

ing the Soviet departure. Permanently resentful of the British-establish

and accustomed to traveling unfettered by multiple footpaths between t

tions,21 tribal traditions and support in armed conflict against opposin

whether indigenous or foreign—meant more to determining the way th

manned, formed and commanded its forces than Western concepts of d

marked borders, their sanctity, and military command and control. Tri

remained paramount.22

Afghanistan enjoyed relative stability and modernization during th

King Muhammed Zahir Shah (1933–1973). A “constitutional monarch

tablished on October 1, 1963.23 On July 17, 1973, his cousin Daoud e

bloodless coup during the king’s absence from the country to abolish th

chy and become Afghanistan’s first president and head of the communi

Democratic Party of Afghanistan (PDPA). Unable to achieve nation

nomic and agricultural reform,24 he was murdered five years later by PD

bers. His assassination and other PDPA failures eventually led to the ov

invasion on December 22, 1979.25

The Soviet occupation, Afghan resistance and US covert assistance to 

against the former have been well told and became the subject of a popula

Soviet forces faced a mujahidin resistance repeating the historic practice 

nous foes joining forces to resist a foreign invader.27 Unable to 

mujahidin resistance funded and supplied by China, Egypt, Iran, Pakist

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United States and strongly supported by the indigenous population, 

40th Army withdrew on February 15, 1989.28

US and other foreign support to the mujahidin led to a case of uninte

sequences, as it left heavily-armed forces in Afghanistan, described by o

as “a network of jihadis without a jihad.”29 Refugee male children from 

war in Afghanistan were placed in Saudi-funded madrassas in Pakistan 

the conservative Wahhabi rejection of “all modern interpretations of Isl

as the mystical Sufi form of Islam,”30 in essence providing a “farm clu

warriors for the Taliban in its eventual effort to seize control of Afghan

before the Taliban existed in name. Foreign financing of the mujahidin 

funneled through Pakistan’s Inter-Services Intelligence Directorate 

versed religious toleration and other modern, liberal practices that exi

1970s, replacing them with narrow Islamic views.31

Soviet military withdrawal from Afghanistan left in place remnants o

Afghan (PDPA) Army and the PDPA puppet regime headed by Presiden

med Najibullah. While the PDPA demise was regarded as inevitable, it w

until 1992 as mujahidin allies against the Soviet occupation endeavored 

a power-sharing agreement, without success. Following Afghan custom

sumed fighting one another.32 Continued fighting led to a civil war be

various factions, collapse of the PDPA, and the replacement of the Najib

ernment by one headed by President Burhanuddin Rabbani of the Islam

of Afghanistan. Tribal fighting continued and lawlessness increased, 

Taliban emergence in 1994.33 President Rabbani’s departure in 1996 r

collapse of the remaining limited central government infrastructure, l

ghanistan in the position of a failed State, existing in name only.34

Taliban characteristics and origins arguably can be traced to the Wa

founded by Mohammed ibn Abd al-Wahhab in the eighteenth centur

contemporary formation originated in 1994 in Pashtun-dominated sou

ghanistan.36 The Taliban sought to “work with the deep social grain of 

servatism, not interfering with the power of tribal elders and landowners

the people followed Taliban religious practices.”37 Its inability to gain int

recognition, discussed infra, lay in part in the philosophy of its leader, M

hammed Omar, who departed from Afghanistan’s traditional internat

expressing indifference with respect to international relations and fore

and their necessity for Afghanistan.38 Equally important, Loyn observes

[a]t the core of the new antimatter soul being formed for Afghanistan wa

education”, in which boys were taught not about culture or the natural wo

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y 

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 th

orphans who knew no other life. “Talib” simply means “student”, although t

came to mean specifically “religious student”, and the madrassa system pro

formidable old-boy network, giving a sinuous strength and flexibility to the 

army, which otherwise lacked a formal command structure.

39

In the battles of the mid- to late 1990s, momentum ebbed to and f

Afghan tradition, tribal warlords and individual tribes switched sides f

Personnel replacements for Taliban lost in battle or through defection

Taliban forces were drawn from volunteers from tribal areas in Pakistan 

Afghan volunteers.40 Efforts in 1996 by the Pakistani interior minister t

Taliban join in consolidated opposition to the Northern Alliance were r

Taliban leader Mullah Omar. As a result, when the Taliban eventually r

the Afghan capital of Kabul on September 26, 1996, “they had few fr

never secured the international recognition they craved.”41

Taliban recapture of Kabul did not bring formal recognition from its p

nancial backers, Saudi Arabia and Pakistan. It did result in a new warlo

called the “Supreme Council for the Defence of the Motherland” to o

Taliban.42 The following spring the Taliban began its advance north. C

tion of agriculture, industry, mineral and gas resources in northern A

made a Taliban offensive critical to its consolidation of power.43 Politica

Pakistan and Saudi Arabia agreed they would extend formal recognit

Taliban as the government of Afghanistan when and if it controlled 

country, then advanced recognition following Taliban seizure of the No

liance city of Mazar-i-Sharif on May 24, 1997, optimistically but incorr

cluding control of the entire country would follow soon thereafter.

In a set of circumstances reflecting the Byzantine nature of the Paki

ernment and despite the fact that ISID agency Chief of Staff Ahmed B

knowledged that the Taliban “had no clue how to run a country,”44 at IS

the Pakistani foreign ministry announced Pakistan’s recognition of the 

the government of Afghanistan on May 25, 1997, a decision Pakistani Pri

ter Nawaz Sharif learned of from a television news announcement. H

called Sharif was “furious,” wondering out loud who had made a decisio

his to make.45

The ISID, heavily invested in the Taliban in part to provide a safe have

stan’s insurgency operations in Kashmir,46 pressed Saudi Arabia to join i

nition of the Taliban. “Due to Pakistani [ISID] insistence and to the l

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other options so as to fill the obvious vacuum

in Afghanistan, Saudi A

lowed suit the next day.47 The United Arab Emirates (UAE), whose lead

joyed special hunting privileges in Pakistan and Taliban-controlle

Afghanistan, recognized the Taliban two days later.48

These announcements were premature. Taliban seizure of Maz

lasted only hours following Pakistan’s recognition announcement,49 and 

deathtrap for Taliban forces. Mazar-i-Sharif’s Uzbek/Shia populatio

forces with the Northern Alliance, killed three hundred Taliban and cap

other thousand. Taliban killed or captured included its top ten leaders 

sault on Mazar-i-Sharif.50 Anti-Taliban forces increased in strength a

switched sides in an anti-Taliban offensive that killed, captured, or wo

other six thousand Taliban, including 250 Pakistani fighters killed an

550 captured. The Taliban swiftly retreated toward Kabul, en route 

crops and poisoning wells,51 relinquishing any claim to control of no

ghanistan. The civil war intensified as aid and support to anti-Taliban 

creased from Iran, Turkey, India, Russia, Uzbekistan, Kazakhstan, Kyrgy

Tajikistan.52

Nonetheless, and bolstered by the premature recognition by Pakis

Arabia and the UAE, the Taliban sought US recognition. The Clinton ad

tion declined. Following a confrontation between pro- and anti-Taliba

within the Afghanistan embassy in Washington in August 1997, the Sta

ment ordered the embassy closed, informing its representatives that “[a]

United States was concerned, Afghanistan’s existence as a government in 

national system had been suspended.”53 No other nation joined Pakis

Arabia and the UAE in their recognition of the Taliban as the governm

ghanistan. Taliban efforts to gain UN recognition were equally unsucc

large measure due to its ignorance of “U.N. procedures and even the U.N

and its own counterproductive actions against UN agencies attempting 

humanitarian aid in Afghanistan, such asthe High Commissioner for Re

the World Food Program. An increase in funding by Pakistan and Saudi 

the Taliban and drafts of young jihadists from tribal areas in Pakistan e

Taliban to reconstitute its forces and in 1998 commence another attack i

ern Afghanistan, including a renewed effort to capture Mazar-i-Sharif. W

tarily successful, international antipathy toward the Taliban increased 

Taliban actions against UN officials and non-government organizatio

cres of Uzbek, Tajik and Hazaras civilians in Mazar-i-Sharif; murder o

opposing-force fighters;55 and the murder of eleven Iranian diplomats t

the Iranian consulate in Mazar-i-Sharif.56

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The Taliban had become an international pariah. Its status was exac

the al-Qaeda attack on US embassies in Nairobi, Kenya and Dar es Salaa

nia, on August 7, 1998, killing 213 civilians in the former and eleven in 

and wounding more than four thousand civilians in the two attacks.57 T

sponse included a cruise-missile attack on the suspected al-Qaeda trainin

Zawhar Kili on August 20, 199858 and an end of any further argument o

tism toward the Taliban within the State Department.59 International o

creased with the Taliban’s September 18, 1998 destruction of the two 

year-old Buddha statues in Bamiyan.60 The murder of the Iranian diplom

Iran moving a military force of two hundred thousand to its border with 

stan; a meeting between Taliban leader Mullah Omar and UN envo

Brahimi in Kandahar on October 14, 1998; a strong UN Security Coun

tion threatening and eventually imposing international sanctions a

Taliban;61 and Saudi Arabia’s withdrawal of its diplomatic representatio

and its termination of official funding to the Taliban because of its protec

Qaeda leader Usama bin Laden.62 Additional UN Security Council r

condemning the Taliban and imposing sanctions followed through 1999

into 2001 prior to the September 11 al-Qaeda attack on the United State

curity Council “remain[ed] seized” with the matter.63 By 2000, Taliban s

Islamic fundamentalist groups from Central Asia, Iran, Kashmir, China 

stan had led to its further international isolation, increased support to an

forces64 and increasing signs of the Taliban’s weakening grip on territ

Afghanistan.65 Reports by the United Nations Secretary-General in Apr

2001 requested by the General Assembly and Security Council, respectiv

vealing in their conclusions as to the Taliban’s failures to act in any wa

erning authority within Afghanistan.66

Throughout the period in which the UN Security Council and the 

General weighed or took actions against the Taliban, at no time did eith

or suggest recognition of the Taliban as the government of Afghanistan

The al-Qaeda attacks in the United States on September 11, 2001 

rapid military response by the United States, acting under the authority 

curity Council Resolution 1368,68 and concurrent political reactions by 

nations previously aligned with the Taliban. The United Arab Emirates 

its recognition of the Taliban on September 22; Saudi Arabia, three days 

Pakistan on November 22.

As previously noted, US offensive ground force operations against th

and al-Qaeda formally commenced on the evening of October 19–20, 

insertion of two US Army Special Forces detachments.69 In less than tw

Taliban and al-Qaeda resistance had collapsed. Usama bin Laden and hi

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fled into Pakistan.

Taliban leader Mullah Omar survived, and fight

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 

of political recognition of a nation or a new government. But recognitio

nations out of the 185 members of the United Nations does not warran

clusion that the Taliban constituted the de facto much less the de jure go

of Afghanistan for the following reasons:

• The Taliban was a faction in a civil war in a failed State, that is, 

which no central authority existed capable of carrying out the d

responsibilities of a national government to its citizens.

• As established in the preceding pages, the Taliban

• Had no organized, uniformed military, no strategic military 

no formal command and control structure characteristic of a regula

• Consisted of tribal forces with little to no formal military inst

• Was composed of individuals loosely organized along tribal 

rotated between civilian (tribal or family) obligations and serving 

on a daily or seasonal basis; and

• Lacked the capacity to fulfill traditional responsibilities of a go

such as providing essential services (security, welfare and represen

the people of Afghanistan.

• The United Nations, the European Union and 181 of the 18

declined to recognize the Taliban as the government of Afghanistan.

• The Afghanistan seat in the United Nations remained reserve

government of Burhanuddin Rabbani which for all intents and purpose

exist in 1994.

• The civil war did not end with the Taliban as a clear victor occupy

less controlling, Afghanistan. At the time of commencement of US and 

operations on October 20, 2001, the civil war continued, and Taliban p

eroded significantly.

• As the 2001 Secretary-General’s report observed, the Taliban was 

consolidate its military successes outside the predominately Pashtun 

Afghanistan region from which it originated.

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The Taliban refused to acknowledge Afghanistans preexisting int

obligations, such as those of being a member of the United Nations, or t

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 ov

endeavoring to maintain justice within, the territory.

Fourthly, there must be capacity to enter into relations with the outside worl

Fifthly, the inhabitants of the territory must have attained a degree of civilizat

as to enable them to observe with respect to the outside world those principl

which are deemed to govern the members of the international society in their 

with each other.74

The State of Afghanistan previously joined and was accepted into th

nity of nations as a member of the United Nations. Its ratification o

Geneva Conventions in 1956 was accepted by Switzerland, the depositary

objected to its ratification of the 1949 Geneva Conventions. Hence it m

sumed that each State regarded Afghanistan as having met statehood c

and two. Were all other questions answered in the affirmative, a question 

main as to whether in its time as a failed State and with the ascenda

Taliban it continued to meet the third, fourth and fifth criteria. The thir

does not say “exercise control over a substantial portion of” a nation’s te

suggest a percentage of territorial control as threshold criteria, but the te

whole. As to “maintaining justice within the territory,” Professors Gol

Tittemore acknowledge “the Taliban exercised few, if any, of the traditio

ties of government.”75 This cannot be dismissed entirely as a charac

Afghan culture; more likely it is affirmation of the fact that the resour

Taliban to govern were unavailable because they had been diverted to fi

continuing civil war. In turning inward under the leadership of Mullah 

Taliban defaulted on the fourth. In the wholesale murder of foreign d

representatives of non-governmental organizations, its civilians becaus

ent religious beliefs, and captured fighters—violations of human rights l

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law of war

there is no evidence the Taliban met the fifth criterion esse

qualification as the government of Afghanistan.76

Assuming for sake of argument the five criteria could be met for the f

of Afghanistan to restore its place among its peers, there remains the q

whether the Taliban itself became the rightful government of Afghanis

time prior to its defeat and collapse in December 2001. Changes intern

tion are regarded as matters of domestic concern.77 That said,

[i]nasmuch, however, as the government of a State is the instrument through 

has official contact with the outside world and undertakes to respond to 

obligations, a change of government and the methods by which it is wro

matters of concern to foreign countries. They are concerned primarily with a 

of fact—whether the regime seeking recognition is in actual control of the 

government. No difficulty presents itself when a change is wrought through 

processes and the result is accepted as a mere incident in the life or growth of 

concerned. The situation may be obscure, however, when a contest for gover

control is waged by force of arms or by other processes not contemplated by 

law; the completeness of the success of a contestant may be fairly open to d

a protracted period, and even after its adherents assume to exercise the func

a government. In such case foreign States may, and oftentimes do, w

recognition until they are themselves assured where the victory really l

sufficiency of such assurance depends obviously upon the circumstance

particular case; and it may follow close upon the heels of a coup d’état. The m

unrelated to the mode whereby the success of a régime is achieved, except in 

recourse to a particular method may breed doubt as to the security or perma

the control that has been won.78

The decision as to whether or not to recognize a State, or a new govern

State, resides in governments of other sovereign nations, and, within 

ment, with the executive branch of each.79

By analogy, the law of war provides a way in which to determine w

Taliban had gained de facto or de jure status. State A invades State B. In 

its military forces physically seize a portion of State B’s territory. Under 

belligerent occupation State A becomes an occupying power only when 

tory State A’s forces physically occupy “is actually placed under the a

the hostile army.”80 Further, the occupation “extends only to the territ

such authority has been established and can be exercised.”81 A claiman

able to exercise effective control; that is, an occupying power must be 

tion to enforce the authority he is asserting over the territory and meet t

tions of an occupying power, which includes governing and providin

services (such as security and welfare) to the civilian population necessa

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its day

today requirements.Assuming this analogy is reasonable, the 

the civil war between Taliban and anti-Taliban factions from 1994 to 2

resulted in a situation in which the Taliban was able to enforce the a

may have asserted over the territory it physically occupied, much less 

ghanistan. The Secretary-General’s July 13, 2001 report that “[a]ll regi

country, with the exception of the southern [Pashtun] region, now incl

conflict zones”83 confirms the conclusion that while the Taliban may 

joyed a physical presence in a large portion of Afghanistan, it was unab

solidate its military gains and exercise effective control over these areas, 

establish the infrastructure to govern them. These are critical legal d

that media reports failed to make.

The facts on the ground and international law do not support a concl

the Taliban was the de facto, much less de jure, government of Afghanis

time from its emergence in 1994 to October 20, 2001, when US and coal

tary operations commenced against al-Qaeda and the Taliban.84

Combatant and Prisoner of War Status and the Taliban and Al-Q

Accepting arguendo the US position that its intervention in Afghanistan 

ternational armed conflict, entitlement to the combatant’s privilege and, 

prisoner of war status upon capture is determined by provisions contain

cle 4 of the Geneva Convention (III) Relative to the Treatment of Prison

of August 12, 1949 (hereinafter GPW).85 Relevant GPW provisions provi

ment to humane treatment to captured individuals entitled to the co

privilege.

Combatants are members of the established armed forces of a govern

have a legal right to engage in combat operations. Combatants enjoy “c

immunity” under international law, protecting them from prosecution 

or injury to persons or damage or destruction of property resulting from 

ant acts that otherwise comply with the law of war in an armed co

combatant

• Has the right to carry out lawful attacks on enemy military pers

military objectives;

• Is at risk of attack by enemy military forces at any time, wherev

regardless of the duties or activities in which he or she is engaged;

• Bears no criminal responsibility (a) for killing or injuring (i) enem

personnel or (ii) civilians taking a direct part in hostilities, or (b) fo

damage or destruction to property incidental to lawful military o

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provided his or her acts, including the means employed to commit those 

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 hostil

• 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 

fair and regular trial.

Limitations on entitlement to the combatant’s privilege are historic 

sential component of the equally historic law of war principle of discrimi

though the origins of the modern law of war can be traced to classical 

Roman times, the Middle Ages provided its greatest development prior t

nineteenth century. Today’s law of war began as an amalgamation 

militaire, recognized military practice contained in rules of chivalry, and 

known as the just war tradition.87 Both jus militaire and the just war tra

cluded a requirement for “public war,” that is, war authorized by righ

competent) authority. In the jus militaire, “public war” was the “antithe

fidy and cowardly assassinations, actions repugnant to the conception 

and the membership of the various knightly orders in which knights be

Individuals engaging in unauthorized acts of war were acting outside “fa

law of nations.” They were regarded as “marauders and freebooters,” trea

criminals if captured, and usually summarily executed.89

Paralleling right authority was the principle of discrimination/nonc

(civilian) immunity. In the conduct of military operations, commander

ligated to exercise reasonable care to protect innocent civilians from th

effects of combat operations. It also obligated combatants to distinguish t

from the civilian population, and obligated civilians not to engage in comb

Through the near century and a half of development of the modern l

governments have retained exclusive authority to wage war for practica

and humanitarian reasons. First is the responsibility of a government to 

citizens. Second, a desire for stability in international relations necessitat

bition of unilateral acts by a civilian or civilians that may lead to war be

tions.90 Third, the prohibition on civilians engaging in combatant act

implement and enforce the law of war principle of discrimination.

91 The p

izen who engages in battle is not entitled to the combatant’s privilege a

his or her protection as a civilian from direct attack for such time as he o

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a direct part in hostilities.

If captured, he or she is not entitled to priso

status and may be prosecuted for his or her actions.

Codification of the modern law of war and these distinctions origina

midst of the US Civil War (1861–65). Dr. Francis Lieber, a Columbia C

professor, offered to draft a document for the Union Army delineating i

terms existing law of war rules. President Lincoln accepted Lieber’s offer

President Lincoln on April 24, 1863, as US General Orders No. 100, L

structions for the Government of Armies of the United States in the Field b

primary source for treaty law developed over the next century.

Of direct relevance to the present discussion is a less-known product 

of Professor Lieber. On August 6, 1862, Henry Wager Halleck, General-i

the Union armies, wrote to Lieber seeking his advice and assistance in a

the issue of private citizens engaging in unauthorized acts of war and Un

war obligations toward captured Confederate guerrillas. General Halle

partisans and guerrillas as synonymous. Professor Lieber made a disti

tween the two in his essay reply, “Guerrilla Parties Considered with Re

the Laws and Usages of War.” Lieber argued that partisans enjoy a form

tion with a government and its military forces (and entitlement to priso

status), while guerrillas were

self-constituted sets of armed men, in times of war, who form no integrant pa

organized army, do not stand on the regular pay-roll of the army, or are not pa

take up arms and lay them down at intervals, and carry on petty war (guerrilla

by raids, extortion, destruction, and massacre, and who cannot encumber the

with many prisoners, and will therefore generally give no quarter.93

While Lieber does not identify opposing forces that might have been i

of each category, the Virginia cavalry unit commanded by Confedera

John S. Mosby94 is regarded as meeting Lieber’s category of partisans, and 

lawful combatants, while William C. Quantrill’s private group of 

Missouri95 were guerrillas(as he used the term in his analysis), and, as suc

titled to the combatant’s privilege or prisoner of war status.96

Lieber maintained this distinction in General Orders No. 100. Article 

“[s]o soon as a man is armed by a sovereign government and takes the sol

of fidelity, he is a belligerent; his killing, wounding, or other warlike acts 

dividual crimes or offenses . . .,” while acknowledging in Article 59 that 

oner of war remains answerable for his crimes committed against the cap

or people . . . .” Article 81 of General Orders No. 100 states:

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g y, 

corps which acts detached from the main body for the purpose of making inro

the territory occupied by the enemy. If captured, they are entitled to all the priv

the prisoner of war.

In contrast, Article 82 declares:

Men, or squads of men, who commit hostilities, whether by fighting, or inr

destruction or plunder, or by raids of any kind, without commission, witho

part and portion of the organized hostile army, and without sharing continu

the war, but who do so with intermitting returns to their homes and avoca

with the occasional assumption of the semblance of peaceful pursuits, d

themselves of the character or appearance of soldiers—such men, or squads 

are not public enemies, and, therefore, if captured, are not entitled to the priv

prisoners of war, but shall be treated summarily as highway robbers or pirate

Franc-tireur actions in the Franco-Prussian War and the debate ove

operations by Boer farmers dressed in civilian clothing in the Anglo-

(1899–1902) brought the issue to international attention at the First Int

Peace Conference, held in The Hague in 1899.

Hague Convention II with Respect to the Laws and Customs of Wa

was among the treaties adopted by the 1899 Hague Peace Conference. A

its Annexed Regulations Respecting the Laws and Customs of War on L

“The armed forces of the belligerent parties may consist of combatants 

combatants.”97 In case of capture by the enemy both have a right to be 

prisoners of war.

Following Professor Lieber’s lead, recognition as armed forces was pro

only to the regular forces of a belligerent but also to other forces in Arti

The laws, rights, and duties of war apply not only to armies, but also to mi

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 o

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py, p

they are included under the denomination “army.”

Entitlement to lawful combatant and prisoner of war status for org

other than the regular forces of a nation was provisional. It was depen

these forces acting under government authority and complying strictl

four conditions listed. Failure of compliance resulted in denial of the co

privilege. Individuals acting unilaterally outside an organization were n

to the combatant’s privilege.

Development of railroads in the late nineteenth century facilitated 

ployment of military forces, prompting fear by smaller nations such a

and the Netherlands of threats posed by stronger powers such as France 

sia. Article 2 of the Annex to the 1899 Hague II provided conditional c

status to what is referred to as a levée en masse, as follows:

The population of a territory which has not been occupied who, on the 

approach, spontaneously take up arms to resist the invading troops withou

time to organize themselves in accordance with Article 1, shall be rega

belligerent, if they respect the laws and customs of war.

The Martens Clause

The participating nations appreciated that Hague Convention II was a fir

international codification of the law of war for ground forces. Of particu

tance to the topic of this chapter is language contained in the main trea

It has not . . . been possible to agree forthwith on provisions embracing 

circumstances which occur in practice. On the other hand, it could not be i

by the High Contracting Parties that the cases not provided for should, for w

written provision, be left to the arbitrary judgment of the military comm

Until a more complete code of the laws of war is issued, the High Contractin

think it right to declare that in cases not included in the Regulations ado

them, populations and belligerents remain under the protection and empi

principles of international law, as they result from the usages established 

civilized nations, from the laws of humanity, and the requirements o

conscience.

This provision, referred to as the Martens Clause,98 was the result o

over the status of private citizens who took up arms following enemy o

Delegations representing major European military powers argued that 

viduals should be treated as unlawful combatants subject to summary ex

captured. Smaller European nations argued that they should be regarde

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combatants as each citizen has a duty to his nation to resist enemy pre

argument essentially was one for levée en masse “plus,” a continuous re

enemy occupation. In the end, private citizens who took up arms in re

enemy occupation remained unprivileged combatants.99 This prompted 

ration of the Martens Clause.100

These provisions were repeated verbatim or without substantive 

Hague Convention IV Respecting the Laws and Customs of War on Lan

by the Second International Peace Conference in The Hague, on O

1907.101

A humanitarian basis existed for the decision taken by delegations 

Hague Peace Conferences. As one international lawyer commented:

The separation of armies and peaceful inhabitants into two distinct classes is 

the greatest triumph of International Law. Its effect in mitigating the evils of 

been incalculable. . . . But if populations have a war right as against armies, arm

a strict right against them. They must not meddle with fighting. The citizen m

citizen and not a soldier.102

The law of war principle of discrimination prohibits military forces fr

ing in direct attack of innocent enemy civilians and the enemy civilian p

in general. In addition to obligating military forces to distinguish themse

ically and in appearance from the civilian population, the principle of d

tion obligates civilians to refrain from engaging in combatant acts, as su

may place the general civilian population at risk. That said, the Martens 

knowledged the existence of unspecified but minimum standards of 

and humane treatment for unprivileged combatants upon capture. The 

ministration’s express rejection of Common Article 3 application in US o

in Afghanistan neglected to acknowledge that the United States, as a Sta

the 1907 Hague Convention IV, was bound by the Martens Clause in 

Hague Convention IV. The Bush administration’s focus solely on the la

six) criteria in Article 4A, paragraph 2, GPW, discussed infra, also neg

possible legal significance of the Martens Clause.

World War II

The 1939 invasion of major portions of Europe by Germany that bega

German invasion of Poland on September 2, 1939, and of Asia by Japan 

its attack on Pearl Harbor on December 7, 1941, eventually brought org

sistance against Axis occupation on a scale previously unseen. The 

movement within the Soviet Union was massive and well organized by 

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government.

The British Special Operations Executive (SOE) and U

Strategic Services (OSS) provided organization, training, equipment 

support to indigenous resistance movements in twenty nations under 

trol.104 Resistance to enemy occupation argued for in 1899 by Belgium 

smaller nations, all victims of German or Japanese occupation in World W

came reality. The World War II resistance experience prompted revisita

1899 debate regarding law of war recognition of a levée en masse “plus” an

change at the 1949 Geneva Diplomatic Conference in entitlement to c

and prisoner of war status.

1949 Geneva Diplomatic Conference

The 1949 Geneva Diplomatic Conference met in 1949, completing (fro

and adopting four conventions:

• Geneva Convention (I) for the Amelioration of the Conditi

Wounded and Sick in Armed Forces in the Field of August 12, 1949;105

• Geneva Convention (II) for the Amelioration of the Con

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;106

• Geneva Convention (III) Relative to the Treatment of Prisoners 

and

• Geneva Convention (IV) Relative to the Protection of Civilian P

Time of War.108

The Geneva Conventions are specific and exclusive in providing enti

protection. Thus the first convention provides protection for military 

and sick and medical units, personnel, and transport, while the second c

protects military wounded, sick and shipwrecked and their associated 

units, and transport. Legal obligations with respect to protection of and 

vilian sick or wounded, civilian medical facilities, and civilian medical 

are not included.109

Similarly, Article 4 of the GPW is specific in identifying and limiting 

als entitled to prisoner of war status, while the civilians convention is eq

cific in identifying the circumstances in which civilians in enemy 

entitled to protection. The prisoner of war and civilians conventions di

vide all-encompassing, seamless entitlement to protection, but are qui

in their respective applications to particular individuals.

With respect to private civilians engaged in combat actions, the priso

convention is directly relevant to the topic at hand.

The criteria for prisoner of war entitlement were reconsidered in li

World War II experience with State-sponsored organized resistance m

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Paragraph 1 of Article 4A of the prisoner ofwar convention reconfirms e

to prisoner of war status for members of the regular armed forces and 

volunteer corps of a government.110 Paragraph 2 amended the criteria fo

ant and prisoner of war status for groups not falling within paragraph 1

Members of other militias and members of other volunteer corps, including 

organized resistance movements, belonging to a party to the conflict and operat

outside their own territory, even if this territory is occupied, provided that such 

or volunteer corps, including such organized resistance movements, fu

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 cus

war.111

The International Committee of the Red Cross’s (ICRC) Jean S. Picte

edges that recognition of entitlement to combatant and prisoner of war 

State-sponsored resistance groups in enemy-occupied territory “was an 

innovation which grew out of the . . . Second World War.”112 Fully cogni

World War II resistance experience, government delegations to the 1

matic conference declined to expand protection to all private armed gr

historic criteria ofright authority remained fundamental to entitlement t

ant and prisoner of war status.

A common mistake by lay persons, non–international law lawyers, so

national law lawyers and, in the case at hand, by senior legal adv

policymakers in the Bush administration is to recite the four criteria in (a

(d) of Article 4A(2) as the criteria for any armed group to be eligible for c

and prisoner of war status. This is a fundamental misunderstanding of 

war and, in particular, of Article 4A(2), GPW, and the rationale and histo

it. Extension of combatant and prisoner of war status in Article 4A(2) is 

ally and expressly narrower. Combining Articles 2 and 4A(2), there are s

ria, all of which must be met:

First, there must be an international armed conflict, that is, an arm

between two or more nations.113

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Second, the individual who falls into enemy hands after engagement i

ant activities must be a member of an organized resistance movement, th

she cannot be acting unilaterally or as a member of a levée en massein wh

citizens respond spontaneously.114

Third, the organized resistance movement to which the individual bel

be operating under the authority and support of a government that is a p

conflict, that is, it must have right authority. In World War II, this aut

manifested through training, logistical, communications and other sup

vided by governments-in-exile with the assistance of the British SOE and 

OSS, and military forces supporting them, such as with sealift and airlif

ering supplies and agents,115 as well as overtly through official pronounce

The preceding criteria are prerequisites before the four remaining crit

ticle 4A(2) are applicable. The first two criteria in Article 4A(2) are a thre

must be crossed before the last four can be considered.117 If an armed gr

the threshold criteria, consideration must be given to whether or not 

group meets each and every one of the remaining criteria listed in Article 

The 1949 change entitled members of an organized resistance movem

ating under the authority of a government—but only organized armed g

erating under government authority—to prisoner of war status. The re

for such movements to “conduct their operations in accordance with th

customs of war” confirmed the combatant’s privilege and provided lawfu

ant status.

The change in entitlement reflected the experience of World War II 

movements while codifying the distinction between organized, State-s

partisans and private guerrillas made by Francis Lieber during the Ame

War. Equally important, delegates to the 1949 Geneva Diplomatic Conf

clined to provide lawful combatant or prisoner of war status to private ci

ing without government authority.

Geneva Convention (IV) Relative to the Protection of Civilian Person

of War (GC) by its title and the language of Common Article 2 applies 

international armed conflict between two or more nations. The GC f

(that is, protection for civilians in enemy hands, including in enemy-occ

ritory). Article 5, paragraph 3, provides limited protection to a civilian “

of or engaged in activities hostile to the State” in an international armed 

it is defined in Article 2. Private citizens who engage in combatant-li

other than in occupied territory or enemy territory do not receive protect

the Geneva civilians convention. This excludes transnational terrorists 

tection under that treaty.

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Governments participating in the 1949 diplomatic conference did n

that the four 1949 Geneva Conventions provide a seamless “safety net” 

tion for all persons, in particular private individuals or organizations wh

armed attacks without government authority. The negotiating record o

Geneva Conventions is clear that the conventions were not intended to a

provide protection to unprivileged belligerents. In the course of the 1

matic conference, the delegate representing the ICRC stated that “althou

conventions might appear to cover all categories concerned, irregular b

were not actually protected.”119 Similarly, the representative of the Un

dom stated “the whole conception of the . . . [Geneva civilians conventio

protection of civilian victims of war, and not the protection of illegitima

of arms.”

In the development of the law of war from the mid-nineteenth centur

the four 1949 Geneva Conventions, combatant status and prisoner of w

tion was extended to members of a levée en masse (as noted, limited in 

time) and to organized resistance movements operating in enemy-occu

tory under the authority of a government provided each met rigid con

distinguishing themselves from the civilian population and carrying ou

erations in accordance with the law of war. In keeping with the centurie

dards that originated in jus militaire and the just war tradition, gov

steadfastly have refused to provide legitimacy to or legal recognition f

armed individuals or groups acting without government authority and 

bility. The historic condemnation of private armed groups remains thr

exclusion from combatant or prisoner of war status for the overall protec

civilian population. Governments over the centuries consistently h

greater priority to the protection of their civilian populations and indivi

ians over entitlement to prisoner of war status for private armed groups

dissuade private citizens from taking up arms and waging war without go

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 

may be weighed.

Al-Qaeda

The history of Afghanistan and the fighting in the two decades prior to 

attack on the United States on September 11, 2001 focused on the Ta

Qaeda’s history within Afghanistan and overall is loosely intertwined 

Taliban. Al-Qaeda was founded by Usama bin Laden, scion of a wealthy S

ily, in protest against Saudi Arabia’s consent to US bases in Saudi Ara

buildup to, and execution of, the 1991 coalition liberation of Kuwait fro

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Bin Laden, a veteran of the mujahidin battles of the 1980s against Soviet o

of Afghanistan, arrived in Jalalabad, Afghanistan, on May 18, 1996, an ar

der Taliban control and without invitation from the Taliban.121 He had 

separate from, and broader than, the Taliban’s battle within Afghanista

national jihad against the West and, in particular, the United States.

An extended discussion of Usama bin Laden and al-Qaeda’s activitie

essary. Professors Goldman and Tittemore describe al-Qaeda as “a qui

non-State actor,” stating, “President [Bush] and Defense Secretary [Rum

unquestionably correct in their depiction of al-Qaeda as an internation

organization.”122 Professor Toman agrees with Professors Goldman and 

with respect to their first conclusion, declaring, “On the basis of this 

practical analysis, we can easily conclude, that al-Qaeda members cannot 

in any circumstances—from the status of prisoners of war.” Nor does a 

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 perso

to prisoner of war status. Prisoner of war entitlement differs from comb

tus, the latter being narrower in scope.124

The preceding pages establish that the Taliban was not the governm

ghanistan. That said, it is necessary to review the relevant provisions in A

determine whether captured Taliban are entitled to prisoner of war stat

Article 4A(1)

Article 4A(1) provides prisoner of war status to “[m]embers of the arme

a Party to the conflict as well as members of militias or volunteer corp

part of such armed forces.”

In the 1949 Geneva Conventions, the term “Party to the conflict

“Contracting Party” or “High Contracting Party,” in each case referrin

ernment that has ratified or acceded to the conventions. As noted in 

Commentary,

Each State contracts obligations vis-à-vis itself and at the same time vis-à-vis th

The motive of the Convention is so essential for the maintenance of civilization 

need is felt for its assertion, as much out of respect for it on the part of the s

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 d

only governments may agree to become parties to the conventions, 

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Party to a conflictrefers to an armed conflict between the military for

or more nations. An armed private group may choose to participate in 

national armed conflict on one side or another, but its participation 

make it a “Party to the conflict” in the sense that phrase is used in 

Geneva Conventions.127

In the same vein, the term “armed forces” refers to “all members of t

armed forces of a nation,”128 to include members of its reserve or militia 

left up to each government to determine how its military is to be compo

United States, this includes the reserve component of each of its four m

vices and the National Guard when the latter have been activated by the 

The term “militia” in Article 4A(1) does not refer to private armed grou

As the Taliban was not the government of Afghanistan in fact or in 

not a “Party to the conflict” as that term is used in the 1949 Geneva Co

Nor were the Taliban part of the military of Afghanistan, as it no long

Neither a national government (other than perhaps in name only with 

the Rabbani government) nor a national military force existed during th

question.

Two issues arose in the debate over the Taliban and its status. As no

factual summary, the Taliban did not have the formal unit structure of 

army. Similarly, some Taliban fighters (“non-Afghan Taliban”) were f

stani tribes, while other fighters came from other nations. Were this a cas

the Taliban had been the government of Afghanistan and its military t

military of Afghanistan, and therefore members of its forces falling und

4A(1), neither issue would have been a basis for denial of entitlement to p

war status. Other than in the most general terms, such as command resp

the GPW does not specify force structure requirements. Further, the GP

and State practice extensive with respect to the national origin of a mem

regular military forces. For example, US citizens joined British Comm

military forces and served in World Wars I129 and II,130 and the US mi

tinely enlists foreign nationals residing in the United States in its armed 

ten through the enticement of US citizenship following completion of a 

initial enlistment tour.131 While Pakistan covertly supplied the Taliban 

and ammunition and other support during the 1994–2001 Afghan civil w

a degree facilitated the movement of Pakistani tribesmen to join the Tali

not an acknowledged party to the conflict in Afghanistan. As such, Pak

other non-Afghans who joined the Taliban were entitled to no greater st

the law of war than were Afghan members of the Taliban.

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Article 4A(2)

As noted earlier, Article 4A(2), GPW, was an outgrowth of the World 

perience of organized resistance movements operating under the auth

with the support of the former governments of nations under Axis co

does not provide entitlement to prisoner of war status to all priva

groups, but only to those operating with government authority. In this 

repeated the formula articulated by Dr. Francis Lieber in his 1863 “Gue

ties Considered with Reference to the Laws and Usages of War,”133 and 

in the form of an extended levée en masse at the First Hague Peace Con

1899 by Belgium and other smaller military powers, without succe

World War II government-sanctioned resistance movement experience 

reconsideration of the issue and a guarded and highly conditioned broa

entitlement to prisoner of war status only to organized armed groups ac

government authority.

Assuming arguendo that there was an international armed conflict u

mencement of US and coalition offensive ground operations against th

and al-Qaeda on October 20, 2001, the Taliban did not meet the six crit

ticle 4A(2). Arguably it was an organized armed group, but loosely 

along tribal lines. Prior to commencement of US and coalition milit

tions, the Taliban had been financially and to some extent logistically 

by the Pakistan ISID and Saudi Arabia in the civil war in Afghanistan. S

bia had withdrawn its support and Pakistan withdrew support.135 As n

ther was a “Party to the conflict” in the Afghan civil war. The Taliban 

entitled to prisoner of war status under Article 4A(2), as it failed to meet 

teria therein.

Article 4A(3)

Article 4A(3) entitles “[m]embers of regular armed forces who profess 

to a government or an authority not recognized by the Detaining Powe

oner of war status and entitlement.

This provision, new in the 1949 Convention, was based upon the exp

World War II, as members of the armed forces of nations conquered and 

by Germany continued the fight under their respective governments-

Jean S. Pictet, in the Commentary on the GPW he edited on behalf of th

tional Committee of the Red Cross, makes it clear that the point of ref

Article 4A(3) was the Free French: “This provision must be interpreted, 

place, in the light of the actual case which motivated its drafting—that of 

of General de Gaulle which were under the authority of the Free French 

Liberation Committee.”137

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Pictet continues:

The expression “members of the regular armed force” denotes armed force

differ from those referred to in subparagraph (1) of this paragraph[138] in on

only: the authority to which they profess allegiance is not recognized by the a

as a Party to the conflict. These “regular armed forces” have all the 

characteristics of armed forces in the sense of subparagraph (1): they wear uni

they have an organized hierarchy and they know and respect the laws and cu

war. The delegates to the 1949 Diplomatic Conference were therefore fully ju

considering that there was no need to specify for such armed forces the requi

stated in subparagraphs (2) (a), (b), (c), and (d).[139]

The distinguishing feature of such armed forces is simply the fact that in view 

adversary, they were not operating or are no longer operating under th

authority of a Party to the conflict in accordance with Article 2 of the Conventio

One solution in order to bring these armed forces legally within the scop

Convention was to associate them with a belligerent fighting against th

concerned. During the Second World War the German authorities accep

solution and stated they would consider the Free French Forces to be “figh

England”. The conference of Government Experts also supported this solutio

Another procedure which was proposed by the [ICRC] was that the forces sh

recognized provided they were constituted in a regular manner “irrespectiv

Government or authority under whose orders they might claim to be.” In 

preclude any abusive interpretation which might have led to the formation o

bands such as the “Great Companies” of baneful memory,[142] the drafters of 

Convention specified that such armed forces must “profess allegiance to a Gov

or authority not recognized by the Detaining Power.” It must be expressly sta

this Government or authority must, as a minimum requirement, be recogn

third States, but this condition is consistent with the spirit of the provision, w

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 ad

should either consider itself as representing one of the High Contracting Pa

declare that it accepts the obligations stipulated in the Convention and wishes 

them.143

The Taliban did not meet the criteria contained in Article 4A(3) inas

was never the de jure government of Afghanistan. Throughout the Talib

the period in question, the government of Afghanistan recognized by t

Nations, the United States and by all nations other than Pakistan, Saudi A

the United Arab Emirates was that of Burhanuddin Rabbani.144 His regim

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titleto the Afghanistan seat in the United Nations throughout the ensu

in Afghanistan set forth in this article. As previously noted, Saudi Arabia

and Pakistan withdrew their recognition of the Taliban as the United Sta

coalition partners commenced military operations in Afghanistan.

A distinction exists between the “Free French” case as envisioned 

4A(3), GPW, and the situation in Afghanistan. For Article 4A(3) to have 

captured Taliban, the Taliban at some point would have had to have b

jure government of Afghanistan, a status it never achieved.

Article 4A(6)

Article 2 of the Annex to the 1907 Hague Convention IV entitled citizen

the approach of the enemy, spontaneously take up arms to resist the 

troops without having had time to organize themselves” into regular arm

to status as a levée en masse and to prisoner of war status if captured pr

members “carried their arms openly” and respected the law of war. Art

GPW, reconfirmed the Hague provision, though Pictet acknowledges t

en masse “almost never occurred during the Second World War.”145 E

to levée en masse exists only in territory not under enemy occupation. 

notes that a levée en masse “can only be considered to exist during a very 

riod of time, that is, during the actual invasion period.”146 Thereafter, 

viduals are entitled to prisoner of war status only if they meet the six 

Article 4A(2), GPW.147

The Taliban, however loosely structured, was an armed faction en

civil war with other warlords or factions. Its resistance to the initial US/co

sault would not have been a spontaneous, informal taking up of arms by 

private citizens of the sort contemplated by the language either of the 19

Convention or the 1949 GPW.

Special Operations Forces in Non-Standard Uniforms

Entry of US and allied SOF into Afghanistan in October 2001 brought 

the law of war issue of dress of some SOF in indigenous attire. It is a matt

thor examined at length,148 but which by necessity must be addressed br

In addition to the legal issue as such, it exposes an inconsistency in the 

ministration’s arguments for denial of prisoner of war status to capture

US and allied SOF were members of the regular forces of their nations 

sistent with Article 4A(1), GPW, entitled to prisoner of war status if ca

military forces of an enemy nation. The entitlement to prisoner of war st

dividuals who fall within Article 4A(1) is absolute; it is not conditiona

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case with militia and organized resistance endeavoring to gain prisoner o

tlement under Article 4A(2), GPW.149

As noted, governments involved in drafting the 1949 GPW were fully 

of the World War II resistance experience. It was the basis for broadenin

tection contained in Article 1, Annex to the 1907 Hague Convention IV 

cle 1, paragraph 1, Geneva Convention Relative to the Treatment of Pr

War of July 27, 1929,150 to include members of State-sponsored organ

tance movements as individuals entitled to prisoner of war status prov

met the four criteria contained in each of those treaties and in Article 4A

1949 GPW. Had governments in 1899, 1907, 1929 or 1949 regarded the 

a uniform a prerequisite for captured regular forces’ entitlement to p

war status, it would not have been difficult to have said so. They did n

said, a general assumption exists that members of a State’s armed forc

term is used in the GPW), including SOF, will meet the four criteria co

Article 4A(2) in their operations. In practical terms, this has been accom

regular forces, including SOF.152

A distinction exists, however, between the requirement in Article 4A

have a “fixed distinctive sign recognizable at a distance” and an assum

regular forces, including SOF, must wear full uniforms in order to rema

to prisoner of war status. This distinction is not supported by treaty te

practice, as this author has shown.153

Several problems arise with an assumption that uniforms are require

tlement to prisoner of war status: (a) no such requirement exists in 

Hague Convention II, 1907 Hague Convention IV, 1929 GPW, nor in 

GPW; (b) the term “uniform” is not used in any of these treaties;154 (c) 

is undefined in the law of war;155 and (d) requiring SOF to wear a com

form would impose upon them a higher standard than that imposed up

bers of an organized resistance movement entitled to prisoner of war sta

Article 4A(2), GPW.

The issue was clarified in the diplomatic history of the 1974–77 diplom

ference that produced the 1977 Additional Protocol I and II. The criteri

batant and prisoner of war status were relaxed in Articles 43(1) and 44(3

State actors in conflicts of the type defined in Article 1(4). As neither t

States nor Afghanistan is a party to Additional Protocols I and II, these 

are not directly germane to the issue at hand. However, Article 44(7) and 

tive history are. Article 44(7) states “[t]his Article is not intended to c

generally accepted practice of States with respect to the wearing of the u

combatants assigned to the regular, uniformed armed units of a Pa

conflict.”

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An authoritative commentary on this provision, prepared by indiv

rectly involved in its drafting and negotiation, explains the meani

provision:

Within the Working Group the initial enthusiasm for a single standard applica

to regular and independent armed forces was dampened when concern was e

that the [new] rules . . . might encourage uniformed regular forces to dress in 

clothing. . . . Accordingly, para. 7 was developed to [overcome this concern]. 

report of the Working Group, however, states that “regulars who are assigned 

where they must wear civilian clothes, as may be the case . . . with advisers ass

certain resistance units, are not required to wear the uniform.” The implication 

7, construed in the light of the Working Group report is that uniforms contin

the principal means by which members of regular uniformed units dis

themselves from the civilian population . . . but that members of regular arme

assigned or attached to duty with the forces of resistance or liberation moveme

conform to the manner in which such irregulars conform to the requirements of p

The situation US and other coalition SOF faced upon entry into A

was not new. Special operations forces working with indigenous resista

frequently find themselves singled out as high-value targets by opposing 

With the precedent of the consequences of the 1993 Battle of Mogadishu

which US forces were withdrawn from Somalia, and fearing a similar wit

the event of US casualties, Northern Alliance warlords insisted on US 

SOF wearing indigenous attire in the opening phase of operations agains

and the Taliban so they would blend in with the forces with whom they 

Opposing sides generally had no difficulty identifying one another as fi

The issue at hand with respect to al-Qaeda, the Taliban and coaliti

Northern Alliance dress was twofold: first, whether they met any of the 

Article 4, GPW, for entitlement to prisoner of war status, and second, if 

lawful combatants, whether they engaged in “treacherous killing,” pro

Article 23(e), Annex to the 1907 Hague Convention IV,160 and otherwi

to as perfidy. In the case at hand the prohibition on perfidy is defined in p

cle 37, 1977 Additional Protocol I, as follows:

1. It is prohibited to kill, injure or capture an adversary by resort to perfi

inviting the confidence of an adversary to lead him to believe that he is entitl

is obliged to accord, protection under the rules of international law appli

armed conflict, with intent to betray that confidence, shall constitute perf

following acts are examples of perfidy:

(c) the feigning of civilian or non-combatant status . . . .161

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With the exception of acts by individual members of al

Qaeda or th

perfidy was not an issue in the course of the operations during the tim

question. As noted, both sides readily identified opposing forces.

President Bush’s Decision

On February 7, 2002, President George W. Bush signed a memorandum 

President, Secretary of State, Secretary of Defense, Attorney General, D

Central Intelligence, Chairman of the Joint Chiefs of Staff and others c

humane treatment of al Qaeda and Taliban detainees.162 The memorand

knowledgment based upon a legal opinion rendered by the Attorney 

concluded:

1. None of the provisions of the 1949 Geneva Conventions apply 

conflict with al Qaeda in Afghanistan or elsewhere throughout th

because, among other reasons, al Qaeda is not a High Cont

Party.”

2. While the Attorney General advised the President that he h

constitutional authority to “suspend [sic] Geneva as between the 

States and Afghanistan,” President Bush declined to do so with re

the conflict with the Taliban.

3. The conflict with al Qaeda and the Taliban was an international 

conflict in which Common Article 3 to the four 1949 

Conventions (non-international armed conflicts) did not apply.

4. Taliban detainees are unlawful combatants. Neither Taliban 

Qaeda detainees are entitled to prisoner of war status.

5. Detainees will be treated “humanely and, to the extent appropri

consistent with military necessity, in a manner consistent w

principles of Geneva.”

The President’s decision was preceded by considerable interagency d

marily between the Departments of Justice and State.163 Professors 

Tittemore and Toman provide analyses of the President’s decision and 

the views taken within the executive branch to the extent they were avail

time each article was written.164 The details of the debate are worthy o

analysis beyond the scope of this article and, moreover, have been resolve

decisions of the US Supreme Court since February 7, 2002, than by the P

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February 7 memorandum.

It is sufficient to note that the Departmen

and the Attorney General aggressively sought suspension of the 1949 Ge

ventions, while the Secretary of State argued for a decision consistent 

standing US practice of providing humane treatment to individuals ca

the battlefield consistent with the GPW, even where an individual’s pre

may not always be clear.166

In the debate between the Departments of Justice and State over the 

status of captured Taliban, disagreements over facts played a large role. W

tice Department officials offered as one option the conclusion that A

was a failed State,167 Secretary of State Colin L. Powell’s response did no

but contained an attachment with a diplomatically obscure and factua

rebuttal that “any determination that Afghanistan is a failed State wou

trary to the official US government position. The United States and th

tional community have consistently held Afghanistan to its treaty oblig

identified it as a party to the Geneva Conventions.”168 Similarly, Wh

Counsel Alberto R. Gonzales argued that “[t]he argument that the Un

has never determined that GPW did not apply is incorrect. In at leas

(Panama in 1989) the United States determined that GPW did not a

though it determined for policy reasons to adhere to the convention.”1

sertion was incorrect as the US position during Operation Just Cause wa

cle 3 Common to the 1949 Geneva Conventions applied at a m

Panamanian Defense Forces captured during Operation Just Cause wer

prisoner of war protections pending formal determination by individua

GPW, tribunals, if deemed necessary.170

A memorandum prepared by the late Edward R. Cummings, a senior 

respected Department of State lawyer with extensive law of war experie

that his consultations determined that “[t]he lawyers involved [Depar

Justice, State, and Defense, White House Counsel, Office of the Vice Pres

Legal Counsel to the Chairman, Joint Chiefs] all agree that al Qaeda or T

diers are presumptively not POWs [prisoners of war].”171 However, it em

that Department of Defense, Joint Chiefs of Staff and Department of St

lawyers believe that, in the unlikely event that “doubt should arise” as to w

particular detainee does not qualify for POW status, we should be prepared 

additional screening on a case-by-case basis, either pursuant toArticle 5 of GPW 

extent the convention applies) orconsistent withArticle 5 (to the extent it does n

The memorandum notes that lawyers at the Department of Justice, Wh

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 wa

less politically and legally defensible than had the law been strictly appl

been the long-standing practice of the United States in armed conflict

captured enemy personnel may not have met the criteria contained in 

GPW, for entitlement to prisoner of war status.

Public statements offering a rationale for President Bush’s decision c

flawed law of war analysis. On February 7, 2002, the following White 

nouncement explained the legal basis for President Bush’s decision:

The President has determined that the Geneva Convention applies to the 

detainees, but not to the al Qaeda detainees.

Al Qaeda is not a state party to the Geneva Convention; it is a foreign terroris

As such, its members are not entitled to POW status.

Although we never recognized the Taliban as the legitimate Afghan gove

Afghanistan is a party to the Convention, and the President has determined 

Taliban are covered by the Convention. Under the terms of the Geneva Con

however, the Taliban detainees do not qualify as POWs.

Therefore, neither the Taliban nor al Qaeda detainees are entitled to POW sta

At a White House press briefing that same day, White House Press Sec

Fleischer stated:

[T]he national security team . . . has always said that these detainees shoul

treated as prisoners of war, because they don’t conform to the requirements of 

of the Geneva Convention, which detailed what type of treatment would be 

people in accordance with POW standards. That’s a very easily understo

doctrine of Article 4. For example, the detainees in Guantanamo did n

uniforms. They’re not visibly identifiable. They don’t belong to a military hi

All of those are prerequisites under Article 4 of the Geneva Convention, whic

required in order to determine somebody is a POW.174

The following day Secretary of Defense Donald H. Rumsfeld 

Fleischman’s comment, stating the GPW “requires soldiers to wear uni

distinguish them from the civilian population.”175 Continuing, he sta

Taliban did not wear distinctive signs, insignias, symbols or uniforms. T

trary, far from seeking to distinguish themselves from the civilian pop

Afghanistan, they sought to blend in with civilian non-combatants, 

mosques and populated areas.”176

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The Fleischer and Rumsfeld statements contain two fundamental disc

First, each fails to articulate the primary threshold for entitlement to p

war status: al-Qaeda and the Taliban were private armed groups lacking a

rization or support from a State party to the armed conflict. Failing thi

criteria cited by Fleischer and Rumsfeld are not relevant; they and the 

the GPW do not apply to al-Qaeda, the Taliban or any other armed priv

As explained, the concept of right authority dates back more than eight c

is expressly stated in Article 4A(2), GPW; yet it is missing from the Gonz

orandum to President Bush, the Bush memorandum, and the Flei

Rumsfeld statements. The key element (right authority) was completely 

ignored in the official decision-making process and explanations of 

administration.

Second, emphasis on captured al-Qaeda and Taliban not wearing a 

not only was factually incorrect, but ignored the fact that US forces fou

side anti-Taliban forces who also did not wear a “uniform” in the West

pean tradition.177 Moreover, the term “uniform” is not the prerequisite 

4A(2), GPW, which is “having a fixed distinctive sign recognizable at a 

As previously noted, “uniform” is neither used nor defined in the relev

war treaties.178 The distinctive apparel worn by Taliban and anti-Tali

and, in the case of the latter, by some US special operations forces wo

them, met the “distinctive sign recognizable at a distance” test contained 

4A(2).179

Finally, in emphasizing the erroneous “uniform” test while ignoring 

nized resistance movement of a Party to the conflict” requirement, Fle

Rumsfeld not only ran afoul of the treaty provision but appeared to sugg

Qaeda and the Taliban represented the government of Afghanistan, cont

President’s decision that “[b]y its terms, Geneva applies to conflicts 

‘High Contracting Parties,’ which can only be states.” This inconsisten

missed by critics of the administration’s approach to law of war applic

respect to captured members of these two organizations.180 Whether on

disagrees with President Bush’s decision, these statements were an 

stumble given the degree to which this issue was discussed within the 

branch prior to the President’s February 7 decision.

President Bush’s principal conclusion that neither al-Qaeda nor the T

entitled to combatant or prisoner of war status was legally correct, but it

ing statements were contradictory and factually and legally incorrect, as 

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of prisoner of war status to captured alQaeda and Taliban

gpy

tory statements or actions by t

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 contradictor

noted in subsequent statements an

conditions contained in Article 4A

GPW, captured Taliban were not 

prisoner of war status. Therefore G

not apply to Taliban detainees.

Inconsistent with the President’s s

that “[b]y its terms, [GPW] applie

flicts involving ‘High Contracting 

which can only be states.”

Inconsistent with statement 3 (bel

US followed GPW as a matter of p

past conflicts where status of captu

viduals was undetermined. The Bu

ministration did not continue this 

resisting application of Common 

humane treatment provisions unt

dated by US Supreme Court.183

“Al Qaeda is not a High Contracting

Party.”184

“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.”185

Legally vague and inaccurate. It w

been more accurate to say “al-Qae

private armed group that meets no

GPW categories for 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 (

that “GPW applies to Taliban deta

GPW applies to captured individu

meet one of the categories contain

ticle 4. If captured personnel do n

within one of those categories, GP

gally inapplicable.

“We never recognized the Taliban as the legitimate Afghan government.”187

“The Taliban was not the government of

Afghanistan.”188

Contradictory statements.

The first implies that the Taliban w

jure government. The second cont

the first.

First statement is not supported fa

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of prisoner of war status to captured alQaeda and Taliban

gpy

tory statements or actions by t

administration

Captured al-Qaeda and Taliban “did not

wear uniforms. They’re not easily

identifiable.”189

GPW “requires soldiers to wear uniforms

that distinguish them from the civilian population. The Taliban did not wear distinctive signs, insignias, symbols, or

uniforms.”190

Assuming reference by each was to 

4A(2), GPW, there is no requirem

wear uniform, but to wear “a fixed 

tive sign recognizable at a distance

“Distinctive sign” one of six requi

in Article 4A(2), GPW, all of whic

met.

Factually incorrect: SOF reported 

Qaeda and Taliban wore distinctiv

and by and large were easily ident

when assembled as fighting units.1

US/coalition SOF worked with an

digenous (Northern Alliance) atti

met the “distinctive sign” criteria.

Hypocritical to emphasize “failure 

uniform” as the basis for denial of 

status when coalition forces were 

attired in non-standard (Northern 

uniforms.

Al-Qaeda and Taliban “don’t belong to a

military hierarchy.”192

Statement is factually incorrect, am

incomplete.

Taliban had tribal hierarchy. GPW 

lishes no specific organizational cr

Statement fails to emphasize that t

six criteria in Article 4A(2), GPW, 

which must be met for entitlemen

status.

Taliban hid in mosques.193 Taking up position in a mosque is 

olation of the law of war. It may re

the mosque relinquishing its norm

as a civilian object and becoming 

objective,194 but is not necessarily a 

war violation or a basis for denial 

oner of war status.

Conclusions and Lessons to Be Learned

This author’s remit was to examine the issue of al-Qaeda and the Talib

ment to combatant and prisoner of war status. As concluded herein, 

Qaeda nor the Taliban were entitled to lawful combatant or prisoner of w

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The author believes the paper would be incomplete if it did not ident

to be learned from the actions taken by the Bush administration and othe

spect to this process. Several conclusions or lessons may be drawn from 

tion as it existed and the decision-making process related to the law of wa

al-Qaeda and Taliban captured in Afghanistan between the beginning of 

tion offensive operations in October 2001 and President George W. Bu

sion memorandum of February 7, 2002:

• President George W. Bush was legally correct in concluding that 

Qaeda nor the Taliban met the prerequisites for prisoner of war status, b

wrong reasons.

• Both al-Qaeda and the Taliban were private armed group

operated as an agent of a government. As such, both groups la

authority, the centuries-old prerequisite for entitlement 

combatant and prisoner of war status that is continued in the 19

Convention Relative to the Treatment of Prisoners of War. This 

completely overlooked or ignored in the Bush administration’s ra

denial of prisoner of war status to captured al-Qaeda and Taliban

• The Taliban was one faction in a civil war in a failed Sta

achieved neither status nor international recognition as the de f

jure government of Afghanistan. As was the case with captured 

Taliban fighters did not meet any of the categories within Articl

for entitlement to prisoner of war status.

• The Bush administration rationale for denial of prisoner of 

to captured Taliban was fundamentally flawed in its focus exclusiv

last four criteria of the six criteria contained in Article 4A(2), G

inconsistent given US active support of and alliance with Norther

forces that did not meet the same four criteria.

• Arguments by administration officials to “suspend” or minim

application, and language used to accomplish this in the admin

rationalization for denial of prisoner of war status, ignored the historic 

the United States has exercised in law of war application in gener

providing humane treatment for captured personnel, even those not 

prisoner of war status.

• The law of war is a highly esoteric subject. It requires careful 

reading and understanding of treaty texts, their diplomatic history 

practice, rather than cursory reading and selective use of treaty ph

manner inconsistent with their meaning. No competent lawyer would 

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without reading it in its entirety nor would he or she cite to a court a 

provision without researching its law of war history. Making decisions 

law of war issues requires the same level of research, diligence and co

This was not manifested in administration documents relate

determination of the status of al-Qaeda and the Taliban.

• The flawed arguments offered in support of the President’s Februa

decision were politically based rather than based on the law. They ignor

that the 1949 Geneva Conventions were submitted to the Senate for its a

consent to ratification by a Republican president who, as a military offic

Allied campaign to victory against Germany in World War II; that 

Geneva Conventions have been applied in every armed conflict s

ratification without hesitation by successive administrations (four R

and four Democrat), even where questions existed as to their formal ap

because of US leadership in applying the law of war; and that these dec

not hinder US military operations or place national security at risk.

• While his decision on the key point may have been correct, Presi

erred in accepting the advice of individuals who lacked military experien

depth knowledge of the law of war, but possessed skepticism, if not disda

law of war, over that of individuals with military, combat and substan

war expertise and experience. This error affected the credibility of th

and damaged the public diplomacy aspect of fighting the transnationa

threat posed by al-Qaeda and other terrorist groups associated with it.

• The executive branch possesses the subject-matter expertise c

producing a legally accurate, credible and correct document to ex

rationale for denial of lawful combatant and prisoner of war status 

armed groups like al-Qaeda and the Taliban. The unnecessarily secretive 

making process leading up to the President’s February 7, 2002 mem

failed to utilize the expertise available to it, to its detriment.

• The assertion of “universal applicability” of the 1949 Geneva Co

(by virtue of their ratification or accession by all governments) is in sha

with the significant failure of their application and implementatio

majority of State parties. The fundamental inconsistency of Afghanist

warfighting culture and history of abuse of innocent civilians and perso

combat with the law of war should have been apparent to and recogni

International Committee of the Red Cross in eliciting Afghanistan’s rati

the 1949 Geneva Conventions, and by the government of Switzerla

depositary of the Geneva Conventions, in accepting Afghanistan’s inst

ratification or accession. Law of war treaty ratification should be a 

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quality of and capability for implementation, respect and adherence, r

mere quantity of State parties. “Universal applicability” means nothing 

not universal application.

• Afghanistan’s cultural history does not relieve it of its treaty obli

the law of war is to have any relevance, State parties must be held accou

their failures to take steps beyond merely being a name on the list to i

them.

• If the International Committee of the Red Cross is to maintain i

the “guardian of the Geneva Conventions,” it must do more to gain 

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 th

Geneva Conventions. Neither the United States nor Afghanistan is a State party to th

tocols I and II Additional to the 1949 Geneva Conventions. Protocol Additional to 

Conventions of 12 August 1949, and Relating to the Protection of Victims of In

Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]; P

ditional to the Geneva Conventions of 12 August 1949, and Relating to the Protectio

of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafte

Protocol II]; both reprinted in THE LAWS OF ARMED CONFLICTS (Dietrich Schi

Toman eds., 4th rev. ed. 2004), at 785 and 791 respectively.

2. W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms,4CHICAGO 

INTERNATIONAL LAW 493, 505–06 n.21 (2003), republished by the same title in abrid

ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS 69, 74 (Richard B. Jaqu

(Vol. 80, US Naval War College International Law Studies).

3. ROBERT K. GOLDMAN & BRIAN TITTEMORE, UNPRIVILEGED COMBATANT

HOSTILITIES IN AFGHANISTAN: THEIR STATUS AND RIGHTS UNDER INTE

HUMANITARIAN AND HUMAN RIGHTS LAW 23 (2002), available at http://asil.or

goldman.pdf; Jiri Toman, The Status of Al Qaeda/Taliban Detainees under the Gen

tions, 32 ISRAEL YEARBOOK ON HUMAN RIGHTS 271 (2003).

4. JAMES MOLONEY SPAIGHT, WAR RIGHTS ON LAND 17 (1911).

5. Adam Roberts, Land Warfare: From Hague to Nuremberg, in THE LAWS OF 

STRAINTS ON WARFARE IN THE WESTERN WORLD 117 (Michael Howard, 

Andreopoulos & Mark R. Shulman eds., 1994).

6. For an analysis of the basis for the Bush administration philosophy, se

Carvin, Linking Purpose and Tactics: America and the Reconsideration of the Laws of 

the 1990s, 9 INTERNATIONAL STUDIES PERSPECTIVES 128 (2008).

7. See, e.g., RICHARD H. SHULTZ JR.&ANDREA J. DEW, INSURGENTS, TERRO

MILITIAS 5 (2006), where the authors correctly comment that “the Somali clan w

took on Task Force Ranger in 1993 either did not agree with or had never heard of str

von] Clausewitz or international lawyer [Hugo] Grotius,” referring to the Battle of 

on October 3–4, 1993, between the forces of local Somali warlord Mohammad Faw

US Army and Navy personnel. Accounts of the battle are KENT DELONG & STEV

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(1999). See also SHULTZ & DEW, supra, at 47, 48–54, 86–87; MICHAEL SCHEUER, MA

HELL: AMERICA AND ISLAM AFTER IRAQ 108 (2008).

Sir Adam Roberts acknowledged this problem in his 2003 Naval War College In

Law Studies analysis:

In wars in Afghanistan over the centuries, conduct has differed markedly fro

permitted by the written laws of war. These wars always had a civil war dim

traditionally subject to fewer rules in the laws of war; and guerrilla warfare, 

endemic in Afghanistan in the nineteenth century, notoriously blurs the tra

distinction between soldier and civilian that is at the heart of the laws of war. Som

customs, for example regarding the killing of prisoners and looting, are 

contrary to long-established principles of the law. Other customs are differen

what is envisaged by the law, but are not necessarily a violation of it: for exam

practice of soldiers from the defeated side willingly joining their adversary rath

being taken prisoner. In some cases, conduct has been consistent with intern

norms: for example, the ICRC had access to some prisoners during the 

intervention. Overall, however, compliance with the laws of war has been limit

Adam Roberts, The Laws of War in the War on Terror, in INTERNATIONAL LAW AND T

TERROR 191 (Fred L. Borch & Paul S. Wilson eds., 2003) (Vol. 79, US Naval W

International Law Studies).

8. The first US military ground forces to arrive in Afghanistan following the Se

2001 al-Qaeda hijacking of four commercial airliners and their use in attacks on the 

of the World Trade Center, the Pentagon and an unconfirmed third target were US s

ations forces (SOF) who engaged in ground reconnaissance missions preceding US 

air and cruise-missile attacks against Taliban communication and air-defense targets 

7, 2001. STEPHEN BIDDLE, AFGHANISTAN AND THE FUTURE OF WARFARE: IMPLIC

ARMY AND DEFENSE POLICY 8 (2002). Offensive ground operations began with a

Army Special Forces Operational Detachments Alpha 555 and 595, 5th Special Fo

which were inserted on the night of October 19–20, 2001. CHARLES H. BRISCOE ET A

OF CHOICE: U.S. ARMY SPECIAL OPERATIONS FORCES IN AFGHANISTAN 96 (2003). 

was preceded by US and British air and cruise-missile attacks on Taliban positions on 

2001. GARY BERNTSEN & RALPH PEZZULO, JAWBREAKER 77 (2005). During the per

US SOF were joined by SOF from Australia, Canada, Denmark, the Netherlands and 

Kingdom. The role of British SOF is described in DAMIEN LEWIS, BLOODY HEROES 

9. Memorandum from George Bush to Vice President et al., Humane Tr

Al Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE P

ROAD TO ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005), 

http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf [herei

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 

which cities grew, trade routes pulsed, irrigated agriculture expanded, and 

flourished, but between each renaissance we find an era of ruin brought 

exacerbated by the parochialism, tribalism, fierce independence, and mutual host

These social conditions, not to mention physical challenges of a harsh terr

environment, stretch back as far as our earliest written sources will carry us. I

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even the fourth B.C.E.

FRANK L. HOLT, INTO THE LAND OF BONES: ALEXANDER THE GREAT IN AFGHAN

(2005). See also BYRON FARWELL, QUEEN VICTORIA’S LITTLE WARS 143 (1973

WALLER, BEYOND THE KHYBER PASS: THE ROAD TO BRITISH DISASTER IN THE FIR

WAR ix (1990); DAVID LOYN, BUTCHER & BOLT: TWO HUNDRED YEARS O

ENGAGEMENT IN AFGHANISTAN xxxvii, 12, 20, 46, 57, 238 (2008); AHMED RASHID, 

10 (2001); STEVE COLL, GHOST WARS 110–11 (2004); DALTON FURY, KILL BIN 

(2008). In explaining tribal allegiance and its sustainment in today’s world, Shultz an

the following:

[Sir Edward] Evans-Pritchard’s segmentary-lineage theory was particularly ap

when the tribal setting was egalitarian. Such tribal groupings are decentraliz

relatively small, numbering no more than several thousand. Building larger un

difficult because such tribes did not accept the authority of an outside chieftain

status was gained through charisma, military prowess, negotiation skills, and 

status. Consequently, establishing larger tribal organizations in a segmentary

system was likely only in the event of an external threat. Otherwise, larger politic

existed, at best, as quasi-states. A ruling lineage can come to be recognized as pr

leadership for a larger group consisting of other lineages—subtribes or clans. H

the establishment of such a centralized political relationship is complicat

delicate. Tribal organizations are based on kinship ties and patrilineal descent, 

more centralized political organizations atypical.

SHULTZ & DEW, supra note 7, at 50, citing EDWARD EVANS-PRITCHARD, TH

DESCRIPTION OF THE MODES OF LIVELIHOOD AND POLITICAL INSTITUTIONS OF 

PEOPLE (1940) and EDWARD EVANS-PRITCHARD, THE SANUSI OFCYRENAICA(1949). 

Why, despite the crushing forces of modernity, do [traditional societies] cont

endure? The answer lies in what Ibn Khaldun, writing in the fourteenth centu

about asabiyya. The strength of that solidarity depends on the extent to which 

was segmentary, egalitarian, decentralized, and autonomous. Thus, the und

foundation for those forces is the social principle of kinship, which is central to 

society’s maintenance of its union. Tribes endure when the ties that bind them en

Id. at 51.

With respect to Afghanistan in particular, Shultz and Dew note that “[t]he Afghan 

tolerated state power for the advantages it provides over other tribal rivals. Howev

does not command the Afghan tribes and in the best of times has only limited au

them.” Id. at 157.

12. RASHID, supra note 11; SCHEUER, supra note 7, at 108; LOYN, supra note 

xxxvii, 12, 20. David Loyn offers an example of the philosophy of decentralized rul

that in 1838, following British support for Shah Shuja as king, “[n]one could give a 

Jabar Khan when he said, ‘If Shah Shuja is really a king . . . leave him now with us Afgh

him rule if he can.’” Continuing, Loyn declares: “Afghans would make similar chall

wars that followed, up to and including the appointment of President [Hamid] K

U.S.” Id. at 46.

13. See SHULTZ & DEW, supra note 7, at 150–54, for an excellent description of th

tem within Afghanistan and the critical distinctions within and between tribes. See al

supra note 11, at 147–48.

14. LOUIS DUPREE, AFGHANISTAN 316 (1973), ascited in BRISCOE ET AL.,supra n

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The ability of Muslims with different views of Jihad and various political ends 

against a common enemy would have profound importance when the frontie

became the front line, a crucible of violence, in the conflict that began in 

twentieth century. The frontier villages in Waziristan and Tirah that gave t

support to the Taliban and the foreign fighters in al-Qaeda were the same ones t

supported the mujahidin a decade before in the US-backed fight against the 

Union, and had been the quickest to rise against Britain in the nineteenth cen

finding common cause against a common enemy—first Britain, later the USS

the US-led invasion.

Similarly, STEPHEN TANNER, AFGHANISTAN:AMILITARY HISTORY FROM ALEX

GREAT TO THE FALL OF THE TALIBAN 243 (2002), states: “The Soviet invasion achieve

in Afghanistan history: a unifying sense of political purpose that cut across tr

geographic, and economic lines.” On the concept in general, see SHULTZ & DEW, sup

154; FARWELL, supra note 11, at 5, 47, 153–54. On Afghanistan and its history, se

DEW, supra note 7, at 151–54; WALLER, supra note 11, at x; LOYN, supra note 11

BRISCOE ET AL., supra note 8, at 11. See also Anon., The Liberation of Mazar-e Sharif: 5

Conducts UW [Unconventional Warfare] in Afghanistan, SPECIAL WARFARE, June 

which reports with respect to the US Special Forces experience:

The situation on the ground presented challenges. . . . Although the major factio

united in their opposition to the Taliban, they had significant differences wi

other, and they felt no allegiance to anything higher than their own party or 

group. At one time or another during the previous decade, the groups had ta

arms against one another or supported each other’s rival factions. Although 

these events were uncommon in internal Afghan politics, they created a significa

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, quoting IOAN M. LEWIS,APASTORAL DEMOCRACY 27 (1999). Profe

recognizes this with respect to the Taliban, acknowledging, “Knowledgeable experts 

Taliban’s armed forces were not comparable to an organized army, since they had 

military plans, or decision-making power and they resorted to guerrilla tactics.” To

note 3, at 284.

18. PETER HOPKIRK, THE GREAT GAME (1992); TANNER, supra note 15, at 129–5

supra note 11, at x; FARWELL, supra note 11, at 153–54; LOYN, supra note 11, at 145–

ET AL., supra note 8, at 34.

19. RASHID, supra note 11, at 9–10; LOYN, supra note 11, at xxxvii, 249; FURY, su

at 105–06, 124, 129, 139; Anon., supra note 15, at 38. An example is General Ab

Dostum, who

rose to power after the Soviet invasion in 1979, forming a militia made up m

Uzbeks, who had grown to respect his leadership supporting union workers in 

fields. He supported the communist-run government in Kabul until 1992, when 

flopped and joined his former opponent Ahmad Shah Massoud. Mr. Massoud, 

as the “Panshjer Lion” and head of the Northern Alliance, convinced Gen. Dost

the communists were losing ground and that he should fight for the winning sid

1994, Gen. Dostum again switched sides, joining Gulbuddin Hekmatyar, a muja

accused of fighting his own people more than the Soviets and who is now wante

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Hekmatyar was a major factor in the collapse of a government led by Burha

Rabbani and Mr. Massoud. Yet, less than two years later, Gen. Dostum switche

realigning with Mr. Rabbani and Ismail Khan, the warlord from Herat, to fi

ascendant Taliban regime. However, Gen. Dostum was betrayed by one of h

commanders, who sided with the Taliban. The general fled to Turkey in fear for h

Gen. Dostum returned in April 2001 at the urging of Mr. Massoud and reconstit

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 A

WASHINGTON TIMES, Oct. 12, 2008, at 4–5. See also BRISCOE ET AL., supra note 8, at 

supra note 11, at 234, 236, 348.

20. Readers with greater curiosity or interest would benefit from SHULTZ & DEW

7, at 159–66; FARWELL, WALLER and LOYN, each supra note 11; HOPKIRK, supra n

TANNER, supra note 15, at 129–54.

21. LOYN, supra note 11, at 23; SCHEUER, supra note 7, at 113; RASHID, supra no

These footpaths afforded al-Qaeda leader Usama bin Laden, his forces and Taliban t

nity to enter Pakistan, evading capture in late 2001; FURY, supra note 11, at 277–78; T

pra note 15, at 218–19.

22. See SHULTZ & DEW, supra note 7, at 166: “The British presence in Afghan

important impact on the modern state of Afghanistan because the British left a legac

boundaries based on their strategic interests rather than on the historical location o

ples.” Similarly, RASHID, supra note 11, at 187, describes the Durand Line as “t

boundary line between the two countries [Pakistan and Afghanistan] created by the 

which no Afghan regime has recognized.” Interpretations are being offered today 

Pashtun nationalists that the Durand Line agreement is good for only one hundred y

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 

redistribution measures contrary to the long-standing clan and tribal system, provid

point for resistance to the regime; LOYN, supra note 11, at 184.

25. Id. at 188–93; SHULTZ & DEW, supra note 7, at 167–68.

26. GEORGE CRILE, CHARLIE WILSON’S WAR (2003), and the very entertaining 

of the same name. See also RUSSIAN GENERAL STAFF, THE SOVIET-AFGHAN WAR 

Grau & Michael A. Gress trans., 2002); COLL, supra note 11; SHULTZ & DEW, sup

168–76; and LOYN, supra note 11, at 194–207.

27. SHULTZ & DEW, supra note 7, at 177–79, identify and describe in detail fou

tions as the mujahidin who allied themselves to fight the Soviets: “(1) fundamentalis

ics, (2) moderate and radical Sunni Islamists affiliated with the Muslim Brothers, (3

and (4) Shi’ia Islamists,” citing OLIVIER ROY, AFGHANISTAN: FROM HOLY WAR TO 

43–46 (1995). Nonetheless the war lasted almost a decade in part owing to factiona

within the mujahidin, illustrating again the primacy of tribal loyalties; LOYN, supra 

202. The term mujahidin has been traced to the holy man and “religious adventu

Ahmed Shah Brelwi, who returned from a pilgrimage to Mecca to preach war aga

Forming a sect called Mujahidin, he and his followers captured Peshawar in 1829. H

in 1831. The sect continued, but mujahidin eventually evolved into a term to describe 

fighters. FARWELL, supra note 11, at 150. In the war against Soviet occupation, th

were not limited to Afghan resistance but included volunteers from Chechnya and 

nations.

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note 11, at 185. Shultz and Dew’s observation that “[t]he Red Army’s... conventio

doctrine and analysis was of no help in analyzing or fighting the asymmetrical guerr

a traditional tribal culture” (supra note 7, at 149) applies equally well to the US A

Vietnam War and, more recently, in the first four years of Operation Iraqi Freedom 

recognize it was faced with an insurgency, seeking to apply and unsuccessfully apply

tional war tactics against its “asymmetrical” threat, then waited until it had writte

lished new doctrine jointly with the Marine Corps before beginning 

counterinsurgency operations. For a critique of the Army in the Vietnam War and t

flict that began in 2003, see JOHN A. NAGL, COUNTERINSURGENCY LESSONS FROM M

VIETNAM: LEARNING TO EAT SOUP WITH A SPOON (2002). The new doctrine is c

Headquarters, Department of the Army & Headquarters, Marine Corps Combat D

Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006). The same failure 

assess the situation occurred with regard to the Bush administration’s rationale for 

nation as to the legal status of the Taliban, discussed infra.

29. LOYN, supra note 11, at 208.

30. RASHID,supra note 11, at 32–33; BRISCOE ET AL.,supra note 8, at 19; LOYN,su

at 182, 238–39; SHULTZ & DEW, supra note 7, at 177–78; COLL, supra note 11, at 28

31. LOYN, supra note 11, at 215.

32. RASHID, supra note 11, at 9–10; HUMAN RIGHTS WATCH, AFGHANISTAN

GOTTEN WAR, HUMAN RIGHTS ABUSES AND VIOLATIONS OF THE LAW OF WAR SI

WITHDRAWAL (1991). LOYN, supra note 11, at 114, observes:

Of all of the foreign attempts to control Afghanistan in the two centuries after 

envoy Mounstuart] Elphinstone’s first meeting in 1808, the Soviet invasion in 1

the one that came closest to success. And when the Soviet-backed governmen

crumbled, the disunity of the forces that had ousted it flared into open civil war

had spun out of Kabul, and could not be drawn back. In Afghanistan imposing 

from the center has always been temporary—like gathering together sand or w

since local loyalty outweighs any other.

See also SHULTZ & DEW, supra note 7, at 179–80; COLL, supra note 11, at 262–63.

33. LOYN, supra note 11, at 211–46, 253–54. In the 1994 battle for Kabul, Na

forcibly taken by the Taliban from the United Nations compound in Kabul where he 

lum in 1972. He and his brother were tortured and castrated before being hanged. 

AL., supra note 8, at 95; COLL, supra note 11, at 333; HOLT, supra note 11, at 44.

34. Rabbani remained the recognized ruler of Afghanistan, entitled to Afghanis

the United Nations during the Taliban period. He formally handed over power to 

government headed by Hamid Karzai on December 22, 2001. See Burhanudd

GLOBALSECURITY.ORG, http://globalsecurity.org/military/world/afghanistan/rabba

visited Feb. 27). RASHID, supra note 11, at 10, observes:

Afghanistan was in a state of virtual disintegration just before the Taliban eme

the end of 1994. The country was divided into warlord fiefdoms and all the w

had fought, switched sides and fought again in a bewildering array of alliances, b

and bloodshed. The predominantly Tajik government of President Burha

Rabbani controlled Kabul, its environs and the north-east of the country, whi

provinces in the west centring on Herat were controlled by Ismael Khan. In the 

the Pakistan border three Pashtun provinces were under the independent cont

council or Shura (Council) of Mujaheddin commanders based in Jalalabad. 

region to the south and east of Kabul was controlled by Gulbuddin Hikmetyar

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and in January 1994 he had abandoned his alliance with the Rabbani governm

joined with Hikmetyar to attack Kabul. In central Afghanistan the Hazaras con

the province of Bamiyan. Southern Afghanistan and Kandahar were divided up a

dozens of petty ex-Mujaheddin warlords and bandits who plundered the popul

will. With the tribal structure and the economy in tatters, no consensus on a P

leadership and Pakistan’s unwillingness to provide military aid to the Durranis 

did to Hikmetyar, the Pashtuns in the south were at war with each other.

35. RASHID, supra note 11, at 90–92. See also SHULTZ & DEW, supra note 7, at 1

36. SHULTZ & DEW, supra note 7, at 86, 208, 235–36. Not all Taliban were Pashtu

all Pashtun aligned with the Taliban. For example, Afghanistan’s President, Ham

Pashtun. Dr. Stephen Biddle’s excellent study of Operation Enduring Freedom ide

major components of enemy fighters facing the US-led coalition: (a) native Afghan 

predominantly foreign al-Qaeda and (c) non-al-Qaeda foreign allies of the Taliban. B

note 8, at 13. For law of war purposes and as will be explained, only two categorie

Qaeda and Taliban, and in cases where al-Qaeda served with or led Taliban elemen

only one.

37. SHULTZ & DEW, supra note 7, at 238.

38. Id. at 236.

39. LOYN, supra note 11, at 239 [emphasis provided]. In this regard, see the quo

LEWIS, supra note 17.

40. RASHID, supra note 11, at 39, 53, 59. Dr. Biddle notes, “The Afghan Taliban 

poorly trained soldiers. Many had little or no formal military instruction, and A

swelled and shrank with the seasons and the fortunes of war as troops went home to t

or took up arms depending on the crop cycle and apparent military need.” BIDDLE, s

at 15. See also Anon., supra note 15, at 36:

Few of the factional commanders, at any level, possessed any experience in the c

of large coordinated offensives. Most were extremely proficient at performing 

unit actions. But combining their forces (three separate and distinct major form

and numerous subordinate commands) into a coordinated offensive under on

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 

experienced during the Civil War [1861–65], with prisoner exchanges, paro

pardons. The Afghans, in keeping with their custom, expect soldiers wh

surrendered to abide by the conditions of their surrender agreement and to 

honorably. But the vast numbers of Arabs, Pakistanis, Chechens, Uighers an

foreign nationals who were members of al-Qaeda ignored the Afghan custom

used individual surrenders as a means of furthering their cause, often c

treacherous conditions.

Id. at 38.

41. SHULTZ & DEW, supra note 7, at 253.

42. RASHID, supra note 11, at 52–53.

43. Id. at 54.

44. COLL, supra note 11, at 349.

45. Id.

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44–45, 52–53; SCHEUER, supra note 7, at 111, 113.

47. COLL, supra note 11, 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-Nahay

billionaire crown prince of Abu Dhabi in the United Arab Emirates. . . . Sc

equally rich U.A.E. notables flew to Pakistan each season to hunt. So entrenched 

alliance with Pakistan around houbara hunts become that the Pakistani air force 

secretly to lease one of its northern air bases to the [UAE] so that the sheikhs cou

conveniently stage the aircraft and supplies required for their hunts. P

personnel maintained the air base, but the U.A.E. paid for its upkeep. They flew 

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 politici

hosted Arab hunting trips there since the mid-1990s. They had introduced 

sheikhs to the leadership of the Taliban, creating connections for future financ

Islamist militia. Bin Laden circulated in this Afghan hunting world after he ar

the country in 1996. So the CIA report that he had joined a large, stationary c

western Afghanistan that winter seemed consistent with previous reporting ab

Laden.

The UAE’s Afghanistan western hunting camp played a key part in target selection fo

20, 1998 US cruise-missile strike against al-Qaeda training camps in response to t

attacks on the US embassies in Nairobi and Dar es Salaam, discussed infra. 

relationship with the Taliban, the UAE royal family was cooperative with US 

providing information to facilitate identification of the royal family western Afgh

camp, while disavowing its use by al-Qaeda leader Usama bin Laden. Id. at 448–49.

49. RASHID, supra note 11, at 251 n.4.

50. BRISCOE ET AL., supra note 8, at 21; LOYN, supra note 11, at 257–58.

51. BRISCOE ET AL., supra note 8, at 21.

52. Id.; RASHID, supra note 11, at 5, 44–45, 52–53, 58, 61–63, 72–73, 80, 188–89; 

note 11, at 349.

53. COLL, supra note 11, at 350–51; see also RASHID, supra note 11, at 64–66. T

pro-Taliban proponent within the former Afghanistan embassy, Seraj Jamal, left Wa

New York to be the Taliban’s unofficial (unrecognized) delegation at the United Na

supra, at 351.

54. The government of President Burhanuddin Rabbani continued to hold A

United Nations seat during the Taliban period.

55. BRISCOE ET AL., supra note 8, at 95.

56. RASHID, supra note 11, at 64–74; LOYN, supra note 11, at 253–54; BRISCOE E

note 8, at 22; HUMAN RIGHTS WATCH, AFGHANISTAN: THE MASSACRE IN MAZA

(1998). Taliban actions prompted European Union suspension of all humanitarian 

of Afghanistan controlled by the Taliban. RASHID, supra, at 72. The Human Rights W

contains a minor error in interchangeably referring to Taliban conduct in Mazar-i-S

of “reprisal” or “revenge” for Taliban losses in its unsuccessful 1997 battle for Ma

The terms are not synonymous, with the former having a very specific meaning in th

Although there may be questions as to whether the full range of protections against 

applicable in Afghanistan’s civil war, nonetheless the basic preconditions for execu

did not exist. See FRITS KALSHOVEN, BELLIGERENT REPRISALS 339–44 (1971). The 

thor has identified the following criteria for a reprisal:

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reprisal.

2. It must be done for the purpose of compelling the other belligerent to obse

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 reprisa

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 RE

(1995). See also UNITED KINGDOM MINISTRY OF DEFENCE, THE MANUAL OF T

ARMED CONFLICT 65, ¶ 5.18 and 418–19, ¶¶ 16.16, 16.17 (2004) [hereinafter UK M

noted in this author’s article, the term “reprisal” often is misused when other ter

“retaliation,” “retorsion” or even “lawful attack of a military objective,” might be mo

In the case of Taliban conduct in 1998 in Mazar-i-Sharif, the substantial delay be

Taliban forces in 1997’s and Taliban actions does not suggest its actions were tak

purpose of compelling the other belligerent to observe the law of war,” but were m

with tribal acts of revenge in blood feuds. See SHULTZ & DEW, supra note 11, at 

respect Taliban actions manifest the distinction between a “soldier” and a “warrio

Professor Hugh Turney-High in his classic PRIMITIVE WAR 149–52 (1949) in de

revenge mode of a warrior, a trait discussed in the context of Somalia and Afghanista

& DEW, supra, at 5–7, 57–100, 147–95.

57. RASHID, supra note 11, at 75; BERNTSEN & PEZZULO, supra note 8, at 1–27; 

note 11, at 403–05.

58. COLL, supra note 11, at 411.

59. LOYN, supra note 11, at 267. US State Department officials met with Taliban 

lah Omar, requesting that he turn over Usama bin Laden. A quid pro quo of US recog

Taliban in return for the Taliban to turn bin Laden over to it did not materialize; 

note 11, at 430; BRISCOE ET AL., supra note 8, at 24.

60. RASHID, supra note 11, at 76; COLL, supra note 11, at 548–49.

61. S.C. Res. 1214, U.N. Doc. S/RES/1214 (Dec. 8, 1998), discussed infra.

62. RASHID, supra note 11, at 77. UAE recognition had been token at best. As R

following Saudi withdrawal from Afghanistan and its dealings with the Taliban, 

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. 

1363 (July 30, 2001).

64. Rashid reports:

Not surprisingly, Iran, Turkey, India, Russia and four of the five Centra

Republics—Uzbekistan, Kazakhstan, Kyrgyzstan and Tajikistan—have back

anti-Taliban Northern Alliance with arms and money to try and halt the T

advance. In contrast Pakistan and Saudi Arabia have backed the Taliban. . 

Taliban victories in northern Afghanistan in the summer of 1998 . . . set in mo

even fiercer regional conflict as Iran threatened to invade Afghanistan and 

Pakistan of supporting the Taliban. . . .

RASHID, supra note 11, at 5.

65. Id. at 80; COLL, supra note 11, at 513–15; Report of the Secretary-General on 

itarian implications of the measures imposed by the Security Council resolutions 

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situation in Afghanistan and its implications for international peace and security: R

Secretary-General 4, 5–9, particularly ¶ 25, U.N. Doc. A/55/907–S/2001/384 (Apr. 19

porting on the Secretary-General’s visit to South Asia), which refers to “fighting thr

ghanistan,” belying media assertions that the Taliban controlled as much as 80 

Afghanistan. So, too, does the Secretary-General’s July 13, 2001 report, which states, 

of the country, with the exception of the southern [Pashtun] region, now include ac

zones.” Supra, ¶ 48.

66. U.N. Doc. A/55/907–S/2001/384, supra note 65; U.N. Doc. S/2001/695, sup

Within Afghanistan, the Taliban did not enjoy popular support. BIDDLE, supra n

Continuing, Dr. Biddle notes that the Taliban was (a) poorly trained, (b) had poor 

(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), demandi

Taliban turn over Usama bin Laden without further delay to appropriate authorities 

where he has been indicted,” and further actions by UN members, which refer o

Taliban.” See also S.C. Res. 1333, supra note 63, which refers to “areas of Afghanista

control of the Afghan faction known as Taliban, which also calls itself the Islamic Em

ghanistan (hereinafter known as the Taliban)”; S.C. Res. 1363, supra note 63, refe

bordering the territory of Afghanistan under Taliban control.” U.N. Doc. A/55/907–

supra note 65, reporting on the Secretary-General’s visit to South Asia and his m

Taliban Foreign Minister Wakil Ahmad Mutawakkil, refers to the Taliban only an

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 offensiv

one day later; BIDDLE, supra note 8, at 8–10.

70. BRISCOE ET AL., supra note 8, at 188–89; FURY, supra note 11, at 275. Biddl

“[o]n the night of December 6, Mullah Omar and the senior Taliban leadership 

[Kandahar] and went into hiding, ending Taliban rule in Afghanistan,” then contin

Allied forces subsequently tracked a group of al Qaeda survivors thought to 

Osama bin Laden to a series of redoubts in the White Mountains near Tora Bo

redoubts were taken in a 16-day battle ending on December 17, but many a

defenders escaped death or capture and fled across the border into Pakistan.

BIDDLE, supra note 8, at 11.

71. BRISCOE ET AL., supra note 8, at 203–16; generally, SEAN NAYLOR, NOT A GO

DIE (2005) and PETE BLABER, THE MISSION, THE MEN, AND ME 262–95 (2008), des

eration Anaconda, March 2–13, 2002. Taliban restoration and resurgence and the p

tion in Afghanistan are beyond the scope of this article. As noted, this article conside

of the Taliban from the time of commencement of US military operations on Octob

to February 7, 2002, when President George W. Bush issued his memorandum con

law of war status of captured al-Qaeda and Taliban. The issue of treatment of captur

and Taliban is the subject of separate articles in this volume by Stephane Ojed

Waxman and Ryan Goodman.

72. Captured aircraft, tanks and anti-aircraft equipment had become inoperabl

Taliban’s inability to maintain them. In disbanding the PDPA army, the Taliban als

the PDPA units responsible for their maintenance and operation. BLABER,supra note 

73. David Loyn offers this following anecdote related to the Taliban’s Mullah O

refusal to accept the basic obligations of UN membership:

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Charter translated into Pashtu to Kandahar to show the Taliban what it meant 

country. An envoy went through it page by page, sitting cross-legged on the gro

he was asked what it meant when it talked of “human rights and fundamental fr

for all, without distinction as to race, sex, language or religion.” But Mullah 

refused to meet the UN envoy then or at any other time.

LOYN, supra note 11, at 253.

74. Id. at 22–23; see also IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL 

(1966).

75. GOLDMAN & TITTEMORE, supra note 3, at 24 n.84.

76. The Taliban was not alone in its failure to follow the law of war in Afghanista

a point acknowledged by Colonel John Mulholland, 5th Special Forces Group com

advising his command that “[n]o one [the Afghan warlords] here is clean.” BRISCOE 

note 8, at 95. This demonstrates this author’s earlier point of a distinction between l

bility of law of war treaties and application in fact.

77. CHARLES CHENEY HYDE, I INTERNATIONAL LAW CHIEFLY AS INTERPRETED A

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 H

vention No. IV Respecting the Laws and Customs of War on Land art. 43, Oct. 18, 1

2227, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1, at 66 (emphas

[hereinafter Hague IV Annex]. See also LASSA OPPENHEIM, II INTERNATIONAL LAW

WAR AND NEUTRALITY 434–45, § 167 (Hersch Lauterpacht ed., 7th ed. 1952) 

LAUTERPACHT].

81. Hague IV Annex, supra note 80, art. 43.

82. SPAIGHT, supra note 4, at 327; UK MANUAL, supra note 56, at 275, ¶ 11.3, st

To determine whether a state of occupation exists, it is necessary to look at t

concerned and determine whether two conditions are satisfied: first, that the 

government has been rendered incapable of publicly exercising its authority 

area; and, secondly, that the occupying power is in a position to substitute 

authority for that of the former government.

Applying by analogy this test to the Taliban, while the Taliban may have physica

substantial areas of Afghanistan, persistent resistance to the Taliban—as acknowle

reports—precluded it from meeting the second part of the test. The first part occur

the meltdown of the PDPA between 1992 and 1994. The second part never took pla

The challenge the Taliban faced has historical precedent. A Russian analysis of Br

in its Second Anglo-Afghan War concluded, “English commanders understood th

not gained possession of all these strips of country over which the troops had passed

the actual ground on which their forces were encamped.” LOYN, supra note 11, at 1

the predicament the Taliban faced and suggests the media’s failure to appreciate the 

between physical presence and control sufficient to govern.

83. Supra note 65.

84. The present author may have contributed to Professor Toman’s conclus

Taliban was the de facto government. As he notes in his article, supra note 3, in re

mail from Professor Toman, the present author stated, “An argument might be m

Taliban was the de facto government of Afghanistan until early October 2001, as it oc

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thor had not been involved in Operation Enduring Freedom issues or had access t

ports or analyses. The additional information obtained in research for and prese

article presents a substantially different and more accurate picture.

Even were one to argue that at the time of Taliban recognition by Pakistan, Saud

the UAE the Taliban was the de facto government, Professor Brownlie notes that “[i]t i

said that de jure recognition is irrevocable while de facto recognition can be w

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 T

ARMED CONFLICTS, supra note 1, at 507 [hereinafter GPW Convention]. This sectio

from W. Hays Parks,Jus in Bello in the Struggle against Terrorism, in LEGAL ISSUES IN 

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 bellum) it is ju

a State to resort to arms, and what (jus in bello) use of force is legally permissible

TURNER JOHNSON, JUST WAR AND THE RESTRAINT OF WAR (1981).

88. Gerald I.A.D. Draper, The Status of Combatants and the Question of Guerri

BRITISH YEAR BOOK OF INTERNATIONAL LAW 173, 176 (1971); Gerald I.A.D. Drape

ent Law of Combatancy, in REFLECTIONS ON LAW AND ARMED CONFLICTS: TH

WORKS ON THE LAWS OF WAR BY THE LATE PROFESSOR COLONEL G.I.A.D. DRAPE

(Michael A. Meyer & Hilaire McCoubrey eds., 1998). See also MAURICE H. KEEN, T

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 

trian throne, by the Slav Gavrilo Princip, in Sarajevo on June 28, 1914, generally reg

spark that ignited World War I. This principle is made clear in the US Constitution, 

in the President of the United States the authority to act as commander in chief o

forces (Article II, § 2) and in the US Congress the authority to raise armies and navie

clare war (Article I, § 8). 18 U.S.C. § 960 (2000) (Neutrality Act) makes it a criminal 

person within the United States to begin, set on foot, provide for or prepare “a mean

nish] the money for, or [take] part in, any military or naval expedition or enterprise t

on . . . against the territory or dominion of any foreign . . . state . . . with whom the Un

at peace . . . .” See, e.g., United States v. Stephen E. Black and Joe D. Hawkins, 685 F

Cir. 1982), a case in which US citizens were convicted of violation of the Neutrality A

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 203–0

92. Additional Protocol I, supra note 1, art. 51(3); Additional Protocol II, supra 

13(3).

93. Denial of quarter includes refusal to accept an offer to surrender and summa

upon capture.

94. Mosby’s unit operated under a commission issued by the Governor of Vi

commissions were a practice common for Union and Confederate forces. Receipt an

of a governor’s commission were dependent upon a unit carrying out its operations 

under a commander responsible for its actions, and compliance with the law of wa

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 D

CIVIL WAR (1989), describes Quantrill’s actions and modus operandi.

297

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(1983). A traditional term is unprivileged belligerent, meaning a private individual no

the combatant’s privilege. Other commonly used terms are unprivileged combatant a

combatant. The term adopted by the Bush administration—enemy combatant—wa

its own arguments, as it incorrectly equated captured Taliban and al-Qaeda to la

combatants. The term “unlawful enemy combatant” is potentially misleading, as 

member of regular military forces of a government may be denied prisoner of war st

he or she has acted in a manner inconsistent with the law of war or committed oth

acts. In accordance with Article 85, GPW, a pre-capture offense does not provide a b

prisoner of war status to an individual who meets any of the categories in Article 4

case with many law of war decisions by Bush administration officials during the per

tion, “enemy combatant” was selected more for political purposes than for legal ac

97. As used in Article 3, “noncombatants” refers to military medical personne

lains rather than civilians.

98. Named for its sponsor, Russian delegate Fyodor Fyodorovich Martens (184

99. The debate was limited to a form of extended levée en masse following ene

tion. A private citizen who took up arms against his or her own government or aga

government with which his or her nation was at peace remained an unprivileged co

100. FRITS KALSHOVEN, CONSTRAINTS ON THE WAGING OF WAR 14 (1987

Kalshoven notes that “[t]his phrase, although formulated especially with a view to 

problem of armed resistance in occupied territory, has acquired a significance far ex

particular problem.” Continuing, he says that “[i]t implies no more and no less th

matter what States may fail to agree upon, the conduct of war will always be governed 

principles of international law.”

101. THE LAWS OF ARMED CONFLICTS, supra note 1, at 70. Article 2 providing law

ant status to members of a levée en masse was amended to require that its member

arms openly in addition to respecting the laws and customs of war.

102. SPAIGHT, supra note 4, at 37.

103. See EARL F. ZIEMKE & MAGNA E. BAUER, MOSCOW TO STALINGRAD: DECI

EAST 199–219, 252–54, 330, 434–35 (rev. ed. 1985).

104. Representative histories are HENRI MICHEL, THE SHADOW WAR: 

RESISTANCE, 1939–1945 (Richard Barry trans., 1972); MICHAEL R.D. FOOT, R

EUROPEAN RESISTANCE TO NAZISM, 1940–1945 (1977); JØRGEN HÆSTRUP, EURO

(1978); DAVID STAFFORD, BRITAIN AND EUROPEAN RESISTANCE, 1940–1945 (1980

CRUICKSHANK, S.O.E. IN THE FAR EAST (1983); WILLIAM MACKENZIE, THE SECRET 

SOE: THE SPECIAL OPERATIONS EXECUTIVE, 1940–1945 (1948, 2000); FRANCI

ROBERT MILLS & JOHN W. BRUNNER, OSS OPERATIONS IN CHINA (2002). The pre

has identified organized resistance movements authorized by exiled governments a

SOE and OSS assistance in Albania, Belgium, Burma, China, Czechoslovakia, De

land, France, Greece, Indo-China, Italy, Malaya, Norway, Poland, Rumania, Serbia

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 TH

ARMED CONFLICTS, supra note 1, at 459.

106. Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85, reprinted in TH

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 T

ARMED CONFLICTS, supra note 1, at 575.

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wounded, sick or shipwrecked civilians was corrected in the 1977 Additional Protoc

See, e.g., Additional Protocol I, supra note 1, arts. 8–31; MICHAEL BOTHE, KARL JOS

& WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 89–167 (1

110. In the United States, this includes activated reserve and National Guard for

111. GPW Convention, supra note 85, art. 4A(2) (emphasis provided).

112. COMMENTARY III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF 

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

Convention shall apply to all cases of declared war or any other armed conflict whic

between two or more of the High Contracting Parties, even if the state of war is not re

one of them.” “High Contracting Parties” means nations who are State parties to 

Conventions. “High Contracting Parties” distinguished between nations who had ra

ceded to the Geneva Conventions and those who were not yet party to and bound by 

Conventions. As all 194 nations are now parties to the 1949 Geneva Conventions, th

versal applicability. As this author notes herein, applicability does not necessarily tr

application by State parties.

Article 2 Common to the four 1949 Geneva Conventions does not define war. I

the threshold for application of the four Conventions to, inter alia, “all cases of dec

any other armed conflict which may arise between two or more of the High Contrac

even if the state of war is not recognized by one of them.” In contrast, the judgme

States v. Wilhelm von Leeb et al. (The High Command Case, XI TWC 485 (1948)) 

more broadly as “the exerting of violence by one state or politically organized b

another. In other words, it is the implementation of a political policy by means o

There are two points of significance to the current discussion. First, the authors 

Geneva Conventions, and particularly the prisoner of war convention, were very d

declining to recognize combat operations by a government against a private

organized body such as the Taliban as an armed conflict in which the Geneva C

technically or formally applied. Second, ignorance of history by the Bush adm

resulted in faulty analysis and justification for its actions with respect to captured Tal

Qaeda.

114. Prisoner of war entitlement for actions as a levée en masse cease following ene

tion. Article 4A(6), GPW, expressly states, “Inhabitants of a non-occupied territory

approach of the enemy spontaneously take up arms to resist the invading forces, wit

had time to form themselves into regular armed units, provided they carry their arm

respect the laws and customs of war.” Thereafter members of a levée en masse ceas

such and must meet each of the six criteria in Article 4A(2), GPW, to receive entitlem

oner of war status.

115. Pictet GPW, supra note 112, at 57, states, “It is essential that there should be 

lationship between the resistance organization and the party [sic] to international law 

a state of war, but the existence of this relationship is sufficient,” commenting furthe

relationship “may be indicated by deliveries of equipment and supplies, as was fre

case during the Second World War, between the Allies and the resistance networks 

territories.” In addition to the general histories noted supra note 104, British and U

airlift support to organized resistance movements in Axis-occupied nations is descr

VID HOWARTH, THE SHETLAND BUS (1951); III THE ARMY AIR FORCES IN WORLD 

ROPE: ARGUMENT TO V-E DAY, JANUARY 1944 TO MAY 1945, at 493–524 (Wesley F

& James Lea Cate eds., 1951); GIBB MCCALL, FLIGHT MOST SECRET: AIR MISSIONS FO

299

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BROOKS RICHARDS,ISECRET FLOTILLAS: CLANDESTINE SEA OPERATIONS IN BRITT

1944 (2004); BROOKS RICHARDS, II SECRET FLOTILLAS: CLANDESTINE SEA OPERAT

MEDITERRANEAN, NORTH AFRICA, AND THE ADRIATIC, 1940–1944 (2004).

116. Pictet GPW, supra note 112, at 57 n.2, offers the example of the July 15, 1944 

by US General Dwight D. Eisenhower, Supreme Headquarters, Allied Expeditio

(SHAEF) commander, recognizing the Free French Forces of the Interior and taking 

his command.

117. Toman, supra note 3, at 290–94; Draper, The Status of Combatants and the 

Guerrilla Warfare, supra note 88, at 176.

118. The four criteria were relaxed in Articles 43(1) and 44(3) of 1977 Additiona

the latter requiring only that an individual entitled to combatant status under that t

his arms openly (a) during each military engagement, and (b) during such time as he 

the adversary while he is engaged in a military deployment preceding the launching 

in which he is to participate.” This change is not relevant to the current discussion, a

ghanistan nor the United States is a party to Additional Protocol I.

119. 2A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, a

delegations offered similar comments.

120. See generally, YOSSEF BODANSKY, BIN LADEN: THE MAN WHO DECLARE

AMERICA (2001); ROHAN GUNARATNA, INSIDE AL QAEDA (2002); BRISCOE ET AL., s

at 23; Toman, supra note 3, at 287–89. YAROSLAV TROFIMOV, THE SIEGE OF MECC

(2007), attributes Saudi Arabia’s attack on Muslim extremists, led by Juhayman al 

seized the Grand Mosque in Mecca on September 20, 1979, as the point at which 

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 thro

lowing words of other experts:

A question under the Hague Regulations and the Third [Geneva] Convention i

the status of an independent force, which has no factual link to a Party 

international armed conflict. In general, it may be said that such a force would p

be viewed as waging a private war. In any event, it would have no status better th

of insurgents in a non-international armed conflict, unless the moveme

represent has such de facto objective characteristics of belligerency that the mo

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. Profess

conclusion is that al-Qaeda does not meet the objective characteristics of belligerency

124. For example, civilians who accompany the armed forces are entitled to pris

status under Article 4, paragraph 4, GPW, but do not enjoy the combatant’s privile

125. In such an analysis, the first question should be whether there is an internat

conflict, as defined in Article 2 Common to the four 1949 Geneva Conventions (“all 

clared war or of any other armed conflict which may arise between two or more of th

tracting Parties, even if the state of war is not recognized by one of them”). Failing 

prerequisites in Common Article 2, there is no basis for considering provisions cont

ticle 4, GPW.

126. Pictet GPW, supra note 112, at 18.

127. “Party to the conflict” was broadened to include a limited range of private ar

in Articles 1(4) and 43(1) of the 1977 Additional Protocol I, supra note 1. As noted s

300

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applicable. Had it been applicable, the Taliban would not have qualified as a party to 

as it met none of the criteria in Article 1(4). Since Additional Protocol I’s entry into f

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 CONFL

59, US Naval War College International Law Studies, 1979).

129. See, e.g., HERBERT W. MCBRIDE, A RIFLEMAN WENT TO WAR (1935), deta

count of a US citizen who joined and fought as a member of the 21st Battalion, Canad

tionary Force, in World War I.

130. For example, on July 14, 1940, the New York Herald Tribune contained a B

tisement inviting individuals with aircraft experience to join the Royal Air Force (R

already had joined and fought in the RAF in the Battle for France. Others quickly follo

ARD HOUGH & DENIS RICHARDS, THE BATTLE OF BRITAIN 187–88 (2008). In tot

from thirteen nations, including seven US citizens, served as aircrew with the RAF 

1940 Battle of Britain. Id. at 191. Similarly, Draper Kauffman attended the US Nav

but was screened out as the result of his pre-commissioning eye examination. Seven 

as an ambulance driver in the American Volunteer Ambulance Corps of the Frenc

was captured by invading German forces. Eventually released, he was commissioned 

Navy, where he served as a bomb disposal officer. That he was an American citizen 

with French military and later with British naval forces would not have been a basis 

denial of prisoner of war status. (Returning to the United States on convalescent 

ceived a commission in the US Navy. He earned a Navy Cross as a result of his cleari

bombs dropped during the December 7, 1941 attack on Pearl Harbor, then was assign

lish training for and to form up naval combat demolition units, forerunner of the N

water demolition teams and today’s SEALs.) See ELIZABETH KAUFFMAN BUSH, AMER

FROGMAN: THE DRAPER KAUFFMAN STORY ix, x, 1–12, 19, 23–25, 32–43, 62–63, 78–

131. See, e.g., Pauline Jelinek, Pentagon Seeks Recruits on Visas, WASHINGTON TIM

2008, at B8.

132. Pictet GPW, supra note 112, at 53–58, contains an excellent summary of the 

history.

133. FELLMAN, supra note 95.

134. Parks, supra note 85.

135. BIDDLE, supra note 8, at 22, states that the ISID ceased its logistical support to 

on October 12, 2001, while acknowledging that it may have continued after that da

136. Its history is contained in INTERNATIONAL COMMITTEE OF THE RED CROS

OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES D

SECOND WORLD WAR (September 1, 1939–June 30, 1947) (General Activities) 519

(1948).

137. Pictet GPW, supra note 112, at 62. While ICRC focus was on the Free Fr

practice was far broader. See, e.g., POLISH AIR FORCE ASSOCIATION, DESTINY CAN 

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 W

CONFERENCE OF GOVERNMENT EXPERTS 106–07 (1948).

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tury, during the peaceful periods of the Hundred Years War.” Pictet GPW, supra no

n.3.

143. Id. at 62–64.

144. See supra note 34 and accompanying text.

145. Pictet GPW, supra note 112, at 67.

146. Id. at 68.

147. Having resolved the issue that prompted the original Martens Clause in the 

IV, the Martens Clause was relegated to the article common to the four 1949 Gene

tions dealing with denunciation of (withdrawal from) the Geneva Conventions by a 

See, e.g., GPW Convention, supra note 85, art. 42(4); Pictet GPW, supra note 112, a

148. Parks, supra note 2.

149. Yoram Dinstein, Unlawful Combatancy, in INTERNATIONAL LAW AND TH

TERROR, supra note 7, at 159, discussed infra. However, under Article 85, GPW, they 

entitlement to prisoner of war status.

150. Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 4

118 L.N.T.S. 343, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1, at 42

paragraph 1 states: “The present Convention shall apply without prejudice . . . (1) To 

referred to in Articles 1, 2 and 3 of the Regulations to the Hague Convention (IV) of 

1907 . . . who are captured by the enemy.”

151. A legal requirement that regular forces wear uniforms in order to enjoy en

prisoner of war status would have exceeded the requirement in the 1899 and 1907 H

and Article 4A(2), GPW, which does not specify a “uniform” but merely “a fixed dis

recognizable at a distance.” As indicated in the previous discussion of Lieber’s 1863 

the argument put forward by Belgium and other nations in 1899, delegates were awa

istence of irregular forces based upon the experience of the Franco-Prussian War 

Boer War. Expansion of special operations forces in World War II brought the issue t

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 (1

“Commando forces and airborne troops, although operating by highly trained 

surprise and violent combat, are entitled, so long as they are members of the organ

forces of the enemy and wear uniforms, to be treated as prisoners of war upon cap

they operate singly.” That language is ambiguous in its failure to explain what c

“uniform,” and potentially more restrictive than the text contained in earlier editio

manual. For example, Chief of Staff, Department of War, Rules of Land Warfare, at 

(1914) states: “The distinctive sign. This requirement will be satisfied by the wearing o

or even less than a complete uniform.” This text was deleted, apparently for brevity

edition; the 1914 edition contained 221 pages, while the 1940 edition was reduced 

necessity for paragraph 33 of the 1914 edition may have not been recognized in lig

World War I experience in fighting uniformed enemy forces in conventional military 

on well-defined fronts; nor is it likely organized resistance movements were contem

1940 US manual contains an official publication date of October 1, 1940. The Brit

established under highly classified circumstances on July 22, 1940; the US OSS did 

until two years later, on July 21, 1942. Parks, ISSUES IN INTERNATIONAL LAW AN

OPERATIONS, supra note 2, at 84 and 85 n.69. As SOE historian M.R.D. Foot points o

veil of secrecy was indispensable to SOE, a body for mounting surprise attacks in 

places: no secrecy, no surprise. The fact that the body existed at all was for long a clos

secret.” MICHAEL R.D. FOOT, SOE IN FRANCE 13 (2d rev. ed. 2004). That SO

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in incorporation of the erroneous language contained in paragraph 63 of the 1956 e

manual. But its author(s) should have been cognizant of the change made in article 4

and the rationale for it.

Due to its ambiguity and inconsistency with State practice, including US practi

War II, the 1956 text is clarified in the forthcoming Department of Defense Law of W

153. Parks, ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS, supra n

at 92–99.

154. See, e.g., ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR:ASTUD

NATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 349 (1976) (“T

of uniforms has never been explicitly defined in international law).

155. Id. at 78–81. As noted therein, the ICRC Commentary on the 1977 Additiona

and II states:

What constitutes a uniform, and how can emblems of nationality be distinguish

each other? The Conference in no way intended to define what consti

uniform. . . . “[A]ny customary uniform which clearly distinguished the m

wearing it from a non-member should suffice.” Thus a cap or an armlet etc. w

standard way is actually equivalent to a uniform.

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO TH

CONVENTIONS OF 12 AUGUST 1949, at 468 (Yves Sandoz, Christophe Swinars

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 d

ish Army captain William H.I. Shakespear, easily identified, targeted, and killed i

sniper in the forces of pro-Turkish leader Ibn Rashid, as Shakespear insisted on wear

ish uniform rather than dressing in indigenous attire to appear like the forces to whic

signed. This prompted British Army Captain T.E. Lawrence to don Arab clothing a

Arab revolt against Ottoman rule. Id. at 1043 n.4, and further discussion in Park

INTERNATIONAL LAW AND MILITARY OPERATIONS, supra note 2, at 100–01 n.5.

158. Parks, ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS, supra n

n.6; FURY, supra note 11, at 100, 167.

159. According to one SOF commander, Taliban wore black on black, with turban

all black, with hoods to mask their faces; Northern Alliance, a pakol (chitrali h

Massoud scarf; US SOF, partial US uniform and Northern Alliance attire. FURY, supr

119, 167; see also Parks, ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS

2, at 101; BLABER, supra note 71, at 243, 247 for the US SOF rationale, which did not 

fidy. Anon., supra note 15, at 36, acknowledged, “[B]ecause the disparate forces lack

blance of a uniform, visual identification, particularly at long distances, was virtually 

The tasks of preventing fratricide and synchronizing multiple combat elements fe

[Special Forces] detachments” (emphasis supplied). A distinction existed in Taliban 

when a single or a few Taliban would conceal himself/themselves within a crowd of 

vilians in order to carry out an attack; such an act would be perfidy. US SOF wear of N

liance attire, though much publicized, was limited as to time, unit, specific uni

location of operations and mission. Parks, supra, at 84.

160. Hague IV Annex, supra note 80, art. 23 states, “In addition to the prohibitio

by special Conventions, it is especially forbidden: . . . (b) To kill or wound treacherou

uals belonging to the hostile nation or army.”

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Hague Convention II with Respect to the Laws and Customs of War on Land, whic

the same prohibition.

161. The official English text states “the feigning of civilian, non-combatant statu

cial French text correctly states “feindre d’avoir le statut de civil ou de non-combat

“the feigning of civilian or non-combatant status,” the two categories being distinct

PARTSCH AND SOLF, supra note 109, at 206 n.21. As noted, neither the United States n

stan is a party to the 1977 Additional Protocol I. However, the definition of perfid

French text) is consistent with State practice and has been applied by US military fo

flicts since 1977.

As the present author has noted, the legal approach of the prerequisite of perfidy 

see Parks, ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS, supra note 

162. Bush Memorandum, supra note 9.

163. Key documents in the interagency debate are Memorandum from John C. Y

Delahunty to William J. Haynes II, General Counsel, Department of Defense, Re: Ap

Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002), reprinted i

PAPERS, supra note 9, at 38, available at http://www.slate.com/features/wh

LegalMemos.html [hereinafter Yoo]; Memorandum from Alberto R. Gonzales to th

Decision Re Application of the Geneva Convention on Prisoners of War to the Con

Qaeda and the Taliban (Jan. 25, 2002), available at http://www.slate.com/features/wh

LegalMemos.html [hereinafter Gonzales]; Memorandum from Colin L. Powell to Co

President & Assistant to the President for National Security Affairs, Draft Decision 

dum for the President on the Applicability of the Geneva Convention to the Conflict 

stan (Jan. 26, 2002), reprinted in TORTURE PAPERS, supra, at 122, availabl

www.slate.com/features/whatistorture/LegalMemos.html [hereinafter Powell]; L

John Ashcroft to the President (Feb. 1, 2002), reprinted in id. at 126, available 

www.slate.com/features/whatistorture/LegalMemos.html [hereinafter Ashcroft]; 

dum from William H. Taft IV, Legal Adviser, Department of State to Counsel to th

Comments on Your Paper on the Geneva Conventions (Feb. 2, 2002), reprinted i

available at http://www.slate.com/features/whatistorture/LegalMemos.html [herein

164. GOLDMAN & TITTEMORE, supra note 3; Toman, supra note 3.

165. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008). The present author’s 

was to establish the status of those persons captured during the specified time frame. 

ment and US Supreme Court cases dealing with their treatment are beyond the scop

thor’s remit.

166. The US military provided prisoner of war protection (if not status per se) to 

it captured on the battlefield in its operations in the Republic of Vietnam (1964–7

(1983), Panama (1989–90), Iraq (1990–91), Somalia (1992–94) and Haiti (com

1994); personal knowledge of author, who was responsible for the legal aspects 

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 no

168. Powell, supra note 163, at “Comments on the Memorandum of January 25

statement undoubtedly is factually correct, but does not respond to the conclusion 

Yoo, Ashcroft and Gonzales. The United States may have opted not to comment wi

the situation in Afghanistan (a) for fear of jeopardizing the fragile status of the gov

Burhanuddin Rabbani and its entitlement to the Afghan seat in the United Nation

the Taliban, (b) to avoid interference in the civil war and/or (c) to resist the concl

“failed State” would be relieved of its treaty obligations.

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170. Powell, supra note 163, at “Comments on the Memorandum of January 25

personal knowledge of the present author, who was directly involved in issues related 

of war treatment for captured members of the Panamanian Defense Forces; see sup

Judge Gonzales’ statement also errs in suggesting a separate policy decision was mad

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 

Guantanamo (Feb. 7, 2002), available at http://geneva.usmission.gov/press2002/08

.htm [hereinafter White House Fact Sheet].

174. Ari Fleischer, Press Briefing (Feb. 7, 2002), transcript available at http://www

.ucsb.edu/ws/index.php?pid=61628.

175. Secretary of Defense Donald H. Rumsfeld and General Richard Myers, DoD 

ing (Feb. 8, 2002), transcript available at http://www.defenselink.mil/transcripts/tra

?transcriptid=2624 [hereinafter Rumsfeld].

176. Id.

177. The rationale offered by Bush administration officials incorrectly listing a 

quirement neglects a key historical point from the Ronald Reagan and George H.W

ministrations—which included key participants in developing the erroneous 

rationale for denial of prisoner of war status to captured al-Qaeda and Taliban—i.

administrations supported (with weapons and funding) the mujahidin resistance ag

viet occupation. The mujahidin wore the same or similar attire as the Taliban and th

Alliance, and in many instances were the same persons who fought for the Taliban o

ern Alliance. As the United States was not a party to the conflict against the Soviet 

and the Soviet Union had established a belligerent occupation, the mujahidin were 

to prisoner of war status under Article 4A(2) (organized resistance movement of a 

conflict) or 4A(6) (levée en masse). If one follows the natural logic of the George W. B

istration regarding the status of the Taliban, then arguably it is condemning the su

previous administrations for the mujahidin or acting with hypocrisy.

178. Parks, ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS, supr

516–19.

179. Id. at 496–98, 517, 522–23. US SOF who were involved in these operatio

whom the author has spoken have indicated there was no difficulty by either side in 

opposing forces when operating as units.

180. See, e.g., GOLDMAN & TITTEMORE, supra note 3, at 25–26, 28; and Toman, s

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 11, at 93.

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193. Rumsfeld, supra note 175.

194. Article 52(2) of Additional Protocol I defines military objective as “those obje

their nature, location, purpose or use make an effective contribution to military 

whose total or partial destruction, capture or neutralization, in the circumstances r

time, offers a definite military advantage.” The same definition is contained in Articl

Amended Mines Protocol (II), Convention on Certain Conventional Weapons (CC

ticle 1(3) of CCW Protocol III (Incendiary Weapons). As the United States is a pa

Amended Mines Protocol, it accepts this definition. Protocol on Prohibitions or Res

the Use of Mines, Booby-Traps and Other Devices, as amended May 3, 1996, 2048 U

Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, Oct. 10

U.N.T.S. 171; both reprinted in THE LAWS OF ARMED CONFLICTS, supra note 1, at 1

respectively.

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XI

Targeting and International Humanita

Law in Afghanistan

Michael N. Schmitt*

Experience has demonstrated, time and again, that the application o

tional humanitarian law (IHL) on the battlefield is an exercise of e

tricacy. No aspect of this body of law has proven more difficult to apply 

governing targeting—the use of force against enemy forces, material and 

Combat operations in Afghanistan since October 7, 2001, the date on 

United States and its coalition partners launched Operation Enduring 

have aptly illustrated the complexity of targeting in modern warfare.

This article examines targeting practices during the Operation Endu

dom campaign through 2008, with emphasis on US operations. Specific

plores the role law played in the calculations of those responsible for 

approving and conducting “attacks,” defined in IHL as “acts of violence a

enemy, whether in offence or defence.”1 As will become apparent, their 

were determined less by law than by either the operational realities of the 

or, in a Clausewitzian sense, the policy dictates underpinning the confli

Reference is largely to the law applicable in international armed confl

the law governing hostilities between States.2 Although debate conti

whether the terrorist attacks of September 11, 2001 launched a confl

* Charles H. Stockton Professor of International Law, US Naval War College, New

Island.

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character,

the October 7 coalition strikes against Taliban and terrorist fo

in Afghanistan unquestionably did so, one between Afghanistan and the 

ticipating in the US-led coalition.4 Arguably, the conflict became non-int

in June 2002, when the Loya Jirga elected Hamid Karzai President of t

tional Authority, an act which the United Nations recognized as establis

imate indigenous governance over a sovereign Afghanistan.5 Today, th

Afghanistan comprises a non-international armed conflict between th

government (supported by foreign States) and various armed groups, m

bly the remnants of the Taliban and Al Qaeda.6

Although the conflict has become non-international, it must be under

the IHL norms governing attacks during international armed conflic

hand, and non-international armed conflicts, on the other, have become 

distinguishable. In particular, the foundational IHL principle of distinct

requires those involved in hostilities to “at all times distinguish between 

ian population and combatants and between civilian objects and milit

tives,” applies equally in all conflicts.7 That being so, the humani

governing international armed conflict always serves as an appropriate b

against which to measure targeting practices.

The Operational Environment

Afghanistan presented a multifarious environment in which to apply 

law.8 The country’s physical and human terrains are of unparalleled com

nearly 650,000 square kilometers, it is roughly the size of Texas. Much of t

is mountainous and few roads or other means of transportation exist. T

kilometer border is ill-defined and porous. These features often com

forces to employ airpower in lieu of ground operations. Habitation is w

tered and predominantly rural, and combatants are seldom distinguish

civilians by dress. The operational result was an unusually heavy reliance 

gence, surveillance and reconnaissance (ISR) capabilities, rather than vis

fication by an attacker. Complex ethnic and tribal relationships, charac

shifting alliances, complicated matters. Indeed, Afghans typically have le

identity as such than as Tajiks, Pashtuns, Hazaras, Turkmens, Uzbeks or 

of other similar groups. In many cases, these ethnic groups straddle bo

Afghanistan’s neighbors—Pakistan, Turkmenistan, Uzbekistan, Tajik

China.

Perhaps most significantly, Afghanistan’s recent history has been o

stant warfare, from the internal conflict and ensuing Soviet invasion 

through the Soviet withdrawal a decade later, and into the war that led t

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Taliban victory. Defeat of the Taliban by the US

led coalition in late 200

in the period of hostilities considered here. Many Afghans have known n

war, and many have found themselves on both sides of the battle lines a

times. A massive illegal narcotics infrastructure financially fuels these co

ghanistan is presently the world’s largest producer of opium, with an 

eight thousand metric tons in 2008. Since unemployment runs at 40 pe

in light of a per capita gross domestic product of a meager $800, both the 

and conflict offer attractive means of subsistence.9

As noted, terrain, distance and infrastructure led the coalition for

heavily on air attacks. Political demands for a quick response to Septem

practical difficulty of rapidly deploying ground forces and fear of repeating 

trous Soviet experience further led to an emphasis on air operations.10 D

initial phase of hostilities, friendly indigenous armed groups, supported 

coalition special forces, shouldered responsibility for most ground o

However, once the conflict morphed into a classic insurgency, ground o

assumed increasing importance. Nevertheless, air attack remains a dom

ture of the war in Afghanistan.

Targeting in a Counterinsurgency

Within months, the conflict in Afghanistan became an insurgency in wh

tional methods of warfare no longer sufficed.11 As US military doctrine r

the application of force to defeat an insurgency must be but part of a broad

that incorporates paramilitary, political, economic, psychological and civ

The application of a purely military approach to irregular warfare [IW] has no

successful in the past. IW is about winning a war of ideas and perception. Its b

fought amongst the people and its outcomes are determined by the percept

support of the people. The campaign must change the perception and off

alternatives, rather than specifically kill an enemy or destroy his reso

isolation.12

This reality necessitates carefully measured use of force, lest the comp

components of the strategy suffer. The current US counterinsurgenc

manual accordingly cautions,

[a]ny use of force generates a series of reactions. . . . Counterinsurgents should 

carefully the type and amount of force to be applied and who wields it 

operation. An operation that kills five insurgents is counterproductive if c

damage leads to the recruitment of fifty more insurgents. . . . [Thus,] it is 

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precisely so that it accomplishes the mission without causing unnecessary loss 

suffering.13

Sensitivity to the reverberating consequences of an attack that causes civ

alties lies at the heart of counterinsurgency strategy, for “using substanti

increases the opportunity for insurgent propaganda to portray lethal m

tivities as brutal, [while] using force precisely and discriminately stren

rule of law that needs to be established.”14

Ultimately, the key is legitimacy with the population, the support of w

stitutes the ultimate objective of all counterinsurgencies. The term “le

unsurprisingly appears 131 times in the COIN manual. In 2008, it was el

“principle of war” for US joint operations. Along with perseverance and 

similarly relevant in the context of targeting, legitimacy joined the nine t

principles: objective, offensive, mass, economy of force, maneuver, uni

mand, security, surprise and simplicity.15

The legitimacy imperative undergirds US targeting doctrine. As an ex

Air Force requires consideration of the following factors during the “tar

tion” phase of planning.16

• Does the target meet [combined force air component commander] o

commanders’ objectives, guidance, and intent?

• Is the target consistent with [law of armed conflict] and [rules of engageme

• 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

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?

• What are the consequences of not attacking the target?

• Will attacking the target negatively affect friendly operations due to cu

planned friendly exploitation of the target?

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Clearly, counterinsurgency targeting planners must be especially sensitiv

beyond the immediate military utility of a strike and the legal norms gove

The collateral damage estimate methodology (CDEM) employed by 

reflects this sensitivity.17 “Collateral damage” refers to incidental injur

ians and damage to civilian objects caused during an attack on a law

CDEM sets forth “standardized procedures for determining potential 

damage, options available to mitigate that damage, and approval auth

strikes based on the anticipated collateral damage during the conduct 

tions.”18 Although the precise parameters of CDEM are classified, in gen

the methodology involves using computer-assisted modeling, intellige

sis, weaponeering and human vetting to assess likely collateral damage 

mine the level at which a preplanned strike must be approved.19 It furthe

particular caution when attacking dual-use targets, when employing cl

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 perspec

straightforward.20Consistent with the principle of distinction, attacks m

conducted against military objectives, including members of the armed 

other organized armed groups participating in the conflict.21 Objects 

“nature, location, purpose, or use make an effective contribution to milit

and whose total or partial destruction, capture, or neutralization, in th

stances ruling at the time, offers a definite military advantage” qualify 

objectives.22 By the “use” criterion, civilian objects may become military 

when the enemy employs them for military ends. Analogously, civilia

targeted should they “directly participate in hostilities.”23 Attacks must 

discriminate; that is, they must be directed against a specific military obj

may not treat “as a single military objective a number of clearly separate

tinct military objectives located in a city, town, village or other area co

similar concentration of civilians or civilian objects.”24

When engaging a lawful target, the attacker may be barred from empl

tain weapons. Such restrictions derive either from the customary law f

the employment of indiscriminate weapons25 and those which cause un

suffering or superfluous injury,26 or from specific treaty restrictions, s

Dublin Treaty on cluster munitions, for States party.27

Even assuming a lawful target and permitted weapon, an attacker 

“feasible precautions” to minimize collateral damage. Specifically, “

mander must decide, in light of all the facts known or reasonably availab

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including the need to conserve resources and complete the mission su

whether to adopt an alternative method of attack, if reasonably available

civilian casualties and damage.”28 Considerations include weapon and 

tions, as well as alternative targets that can be attacked to attain a “simil

advantage.”

Finally, attacks that violate the principle of proportionality are unlaw

tack will breach the standard if it is “expected to cause incidental loss 

life, injury to civilians, damage to civilian objects, or a combination ther

would be excessive in relation to the concrete and direct military advant

pated.”29 The rule of proportionality is often misconstrued as either p

“extensive” collateral damage or as a test which balances collateral dama

military advantage. In fact, it bars attack only when no proportionality a

between the ends sought and the expected harm to civilians and civilia

Restated, the linchpin term “excessive” indicates unreasonable collater

in light of the reasonably anticipated military advantage expected to r

the attack.30

Law and Targeting in Afghanistan

That law limits targeting options is self-evident. However, the nature o

equally affects application of the law, sometimes by necessitating policy 

ational limitations that exceed those found in international humanit

Nowhere has this dynamic been more apparent than during ope

Afghanistan.

The legitimacy imperative, so prominent in counterinsurgency doc

the driving force behind targeting practices in the conflict. Early high

mistakes drew international attention to the US operations. Of parti

were two mistaken strikes on an International Committee of the Red Cro

warehouse in the first month of the conflict and an attack on a weddin

November.31 Resultantly, the incentive to avoid future mistakes and, in

lawful collateral damage, grew quickly.

Intent on avoiding unintended harm to the civilian population, com

imposed strict restrictions on the conduct of operations. For instance, th

tional Security Assistance Force Commander directed his forces to emp

sion munitions whenever possible; humanitarian law imposes 

requirement. Additionally, he directed on-scene commanders to make e

to ensure houses from which their troops received fire were free of inno

ians before responding,32 even though, as a matter of IHL, returning fi

circumstances is governed by the rule of proportionality and the requi

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take feasible precautions in attack, not by the mere presence of civilians. F

2007 the United States and NATO restricted the use of airstrikes during 

contact (TIC) situations, often opting for withdrawal rather than engag

forces also increasingly employed small-diameter bombs (low-collater

bombs). Again, IHL would not necessarily mandate such practices.

Despite such efforts, civilian casualties continued to occur. Hum

Watch estimates that in 2007 over 1,600 civilians were killed in the con

hundred fifty died as a result of Taliban and Al Qaeda actions, whereas 

casualties were attributable to US and NATO actions (312 in airstrike

during ground action). Another fifty-seven died in crossfire between th

parties and the circumstances surrounding the deaths of 192 were uncle

President Karzai, struggling with the public-opinion fallout of civilian 

repeatedly addressed the issue. Following a particularly tragic attack in 

killed fifty-one civilians, he stated that while “the intention is very goo

operations to fight terrorism . . . five years on, it is very difficult for us to 

to accept civilian casualties.”34 Karzai continues to demand greater care 

ing attacks endangering civilians.

A number of obstacles dramatically hindered attempts to avoid colla

age. The enemy was scattered across the country and often operated 

groups. The non-linear nature of this battlespace meant that operations 

conducted over vast areas in which the mere position of a group, vehic

mobile target seldom served as a reliable indicator of its enemy charac

over, because neither the Taliban nor Al Qaeda fielded a classic military f

corresponding fixed military facilities, coalition forces quickly exhaust

targets, thereby necessitating a shift to fleeting targets, which were hard

tify because of time constraints. Most targeting consequently became “

In dynamic targeting, targets are passed to aircraft already airborne 

forces are identified, thereby limiting the opportunity for comprehen

analysis, and requiring use of whatever weapons the aircraft happen to 

with at the time.

The difficulty of identifying the enemy complicated matters. Enemy f

no uniforms or other distinctive clothing that allowed immediate visual 

tion. Merely being armed was an insufficient indicator, as Afghans in rem

often carry weapons for protection, and because friendly indigenous arm

were usually indistinguishable from the Taliban and Al Qaeda. General T

Mosely, the combined force air component commander, highlighted 

tional murkiness when he noted that “in any given space—ground s

there, you had regular and unconventional forces, humanitarian assist

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maybe regular guys and not one of us in the command authority knew 

those guys were.”35

Determined to avoid incidents which might delegitimize their oper

and coalition forces imposed wide-ranging targeting restrictions throu

mechanisms. These included coalition and national rules of engagemen

no-strike lists (for reasons such as IHL or host-nation sensitivities), rest

get lists (in which attack requires special preapproval, e.g., due to negati

implications), individual target folder37 restrictions (such as a requireme

particular munition or strike a particular “desired point of impact”), Joi

erations Plans,38 execute orders,39 fragmentary orders,40 fire support coo

measures41 and soldier cards.42 The net result was a dense and oft conf

mative environment, one in which IHL played a minor role relative to 

operational considerations.43

Such restrictions deviated measurably from customary practices att

attacks on individuals. The traditional approach in conventional 

straightforward. Typically, enemy armed forces, including organiz

groups supporting the enemy, are “declared hostile,” either at the ou

conflict or, in the latter case, once their involvement in the conflict bec

dent. Declaring forces hostile operationalizes the principle of distincti

permits attacks on combatants. It matters not whether the combatants 

ening the attacker, or even whether they represent a potential threat; st

renders them a lawful target. For instance, an unarmed cook may be at

sight if he or she is a member of the armed forces.

By the principle of distinction, civilians may not be attacked unless, an

time as, they directly participate in hostilities.44 Accordingly, although 

not be declared hostile per se, rules of engagement and other targeting gu

low them to be attacked while engaging in actions that constitute direct 

tion. Much controversy exists over the reach of the qualifying activities

the meaning of the phrase “for such time.” These issues will be dealt with 

point here is that it is customary for targeting guidance to permit attack

participants.

Beyond declaring forces hostile and incorporating direct participatio

ROE, the third typical form of engagement authority addresses violenc

nexus to the conflict—criminal acts. Soldiers faced with such criminalit

ploy force consistent with the law of self-defense (and defense of oth

cifically, they may use deadly force to protect themselves and others 

imminent threat of death or serious injury, when less extreme measur

available.45 Operationally, the US rules of engagement provide that U

personnel may use force in the face of a hostile act or a demonstration 

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intent.

They may only do so when force is the sole viable option for add

situation (principle of necessity). No more force than that required to re

tack, or prospective attack, is permitted.

This typical three-tiered paradigm was notably altered during operat

ghanistan. Although targeting practices shifted somewhat over tim

emerging battlefield realities, in broad terms they have been relatively 

When the conflict began, the United States and its coalition partners d

enemy forces hostile, to include the Taliban and Al Qaeda. Instead, th

had to represent a “likely and identifiable threat” (LIT) before being 

Those not meeting this standard could only be engaged if they had co

hostile act or demonstrated hostile intent, the self-defense rule traditio

ployed to respond to actions unconnected to the hostilities. During Oper

Freedom, by contrast, the Iraqi military was declared hostile from the out

tilities. Similarly, “designated terrorist groups” could generally be enga

same fashion.47

Afghanistan represented the first use of the LIT standard in an armed 

was less permissive than the practice of declaring forces hostile because 

targets had to manifest some degree of threat. Paradoxically, the stan

more permissive than the designated-terrorist-group approach applica

because it included no status criterion, i.e., circumstances alone justifie

ment even in the absence of intelligence as to membership.

The adoption of this untested approach to engagement authority beg

tion of why the standard declaration of forces hostile, combined with dire

pation and self-defense ROE, was judged insufficient. Apparently, con

the liberality of declaring forces hostile, combined with apprehension ov

tential for friendly-fire incidents, underpinned the standard. According 

participant in its development at US Central Command (CENTCOM)

tary headquarters for Afghanistan and Iraq operations,

I intentionally designed it to allow the guys in contact (Ground Forces) the a

engage the “enemy,” such as they were, without actually being shot at first, wh

same time limiting the ability of the guys flying at 21,000 feet and 210 knots 

bombs everywhere they wanted (potentially on our allies). As you know, w

began operations targets (deliberate targets) were intentionally held at the 

levels and this was a way to provide some flexibility to the guy in the field. “Self 

Plus” is how I describe it. In theory, this gave the Air Force the ability to strik

(e.g. SAM batteries, anti-aircraft guns, etc). Based on the “OPLAN” I knew ther

be people (ally and enemy alike) all over the country that looked exactly t

(white robes/turbans[,] on horses/pickup trucks, etc).

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y yg g 

FLOT [forward line of own troops]. Eventually, the best we could do was crea

zones/boxes where we could say none of our people were located. You simply 

tell who the enemy was from the lawn darts [slang for an F-16] and this was 

empowering the guys in contact to shoot or call air strikes based upon “

Identification” (the totality of the circumstances). And, even with these tight 

conflict didn’t go without incident.48

The less candid, but official, CENTCOM explanation focused on the 

unique nature. Central Command was intent on maintaining strict co

attacks because it well understood the downside of collateral damage 

insurgency. Recall also the difficulties of verifying targets, both becaus

cation based solely on appearance was problematic and because it was o

cult to determine to which side the various armed groups owed their al

any particular time. With its comprehensive access to ISR assets, and fu

of operational and strategic considerations, CENTCOM believed that 

situated to distinguish friendly from hostile targets.

Yet, the command realized that a conflict of this magnitude requ

than self-defense rules. One scenario cited to justify the new standard 

US forces encountering sleeping Taliban soldiers; another posited air

ting anti-aircraft systems along the route of attack. Self-defense rules al

not permit attack in such situations, and it clearly would make no sen

diers in the field or airborne aircraft to have to “call home” for engagem

rization, merely because these lucrative targets were neither committin

act nor demonstrating hostile intent. For CENTCOM, the answer lay 

standard.49

The level of certainty required to determine that a target qualified as a 

identifiable threat was also a novel feature, at least in ground operations. 

identifiable threat required more than merely “suspicious people in a qu

location.”50 Rather, the rules of engagement mandated positive ide

(PID) of the target as a threat before attacking it. Previously, this standar

been applied in the no-fly-zone-enforcement context of Operations Nor

Southern Watch.51 Afghanistan represented its first use in ground opera

it unsurprisingly caused confusion. The meaning of PID was eventually c

an unclassified format during Operation Iraqi Freedom on the Combin

Land Component ROE Card: “PID is a reasonable certainty that the pro

get is a legitimate military target.”52 Interestingly, PID had meant someth

more in the no-fly-zone context—almost a no-mistakes standard.53

Accounts from soldiers and airmen, as well as judge advocates, indica

generated confusion, in great part because it was not a standard to whi

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forces had trained. Numerous subordinate commands urged CENTCO

guidance.54 The new terminology also elevated form over substance, at 

extent. For instance,

[r]eservations of targeting authority to higher levels made it extremely impo

team members calling for fires to use the right terms to avoid any delays. In ad

using terms like “positively identified” and “likely and identifiable threat

request, the team members needed to indicate the situation requiring the fire

the approval was obtained at the most immediate level possible.55

One US officer cut to the chase: “When lawyers can easily argue about w

means or doesn’t mean as far as engaging targets, we have failed[,] becau

year-old corporal doesn’t have the luxury of such an academic exercise.

Likely and identifiable threat represented a standard exceeding that r

the relevant norms of international humanitarian law. Most significa

jected the universally accepted premise that combatants, whether mem

armed forces or of other organized armed groups, can be attacked on sig

IHL, their mere status as combatants rendered them targetable. By contr

imminent act) replaced status in the LIT standard.

LIT is a genre of the direct participation in hostilities—one without 

“for such time” component. This should be unsurprising, since the absenc

conventional operations by the Taliban and Al Qaeda, combined with th

of identifying fighters as members of a particular group, meant that app

the direct-participation notion, in some form, was destined to loom large

As mentioned earlier, disagreement exists over the scope of direct par

For instance, while all agree that conducting an attack and gathering tact

gence qualify, disagreement prevails as to whether directly financing 

does. An ICRC-sponsored multiyear project to clarify matters is nearin

tion. Although the final interpretive guidance on direct participation ha

released, indications are that three cumulative criteria will emerge.57

The act in question must first adversely affect (or be likely to do so) en

tary operations or capacity, or harm civilians or civilian objects. Second, t

be a direct causal link between the act and the harm caused the enemy, o

must derive from a coordinated military operation of which the act is a

part. This causality criterion excludes actions that may contribute in so

the enemy’s military efforts, but which do not directly enhance its comb

Finally, the act must be designed to negatively affect the enemy in suppor

ponent. This belligerent nexus requirement would exclude mere crimi

connected to the conflict. The LIT standard meets all three criteria: the t

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US forces, the anticipated actions amount to hostile activity and the fo

are not mere criminals.

The absence of a “for such time” element in LIT raises several legal issu

discussing them, it is useful to recall that they are not raised as to any i

who are members of an organized armed force, for, as noted, membe

groups may be attacked regardless of whether they are directly parti

There is no temporal issue—as a matter of law—vis-à-vis them.

Those who are not members of an organized armed group, but meet 

participation scope threshold, may only be attacked “for such time” as th

participate in the hostilities. The notion of “for such time” is the sourc

contention. The ICRC Commentary to the relevant provision of Additio

col I, Article 51.3, provides that direct participation includes “prepar

combat and return from combat,” but that “[o]nce he ceases to particip

vilian regains his right to the protection . . . .”59 Individuals who have no

attack their enemy are immune from attack; those who manage to mak

following an operation regain civilian protection until they set out on an

eration. Certain experts of the working group on direct participation em

strict approach set forth in this non-binding commentary.

Other experts point out that this narrow approach creates a “revolv

through which the direct participant passes as he or she begins and comp

mission.60 They propose an alternative which locks the door after exit: o

dividual has opted into the hostilities, he or she remains targetable until 

uously opting out. Opting out can occur either through exten

participation demonstrating an intention to desist from further involvem

affirmative act of withdrawal. Although it may be difficult to determine 

potential target has opted out, since the individual did not enjoy any p

engage in hostilities in the first place, it is reasonable that he or she bear th

the other side is unaware of withdrawal.

This is the better interpretation of direct participation. In interna

manitarian law, gray areas must be interpreted in light of the law’s u

purposes—achieving balance between military necessity and humanit

cerns.61 A revolving door would throw off this balance. It would frustrat

ants charged with combating the direct participants, and combatants 

with legal norms constitute a risk to the civilian population. Additiona

strictive approach would paradoxically create a situation in which those 

use force—lawful combatants—would enjoy less protection than those n

tled but nevertheless doing so; the former could be attacked at any tim

the latter could only be attacked while deploying to and from an oper

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during the operation itself. From a military necessity perspective, ene

participants would unacceptably enjoy a temporal sanctuary.62

The LIT standard runs counter to the revolving-door interpretive app

instance, the approach begs the question of how one responds to the 

fighters scenario posed by those responsible for LIT’s adoption. By stri

tion of the revolving-door approach, the sleeping fighters could not b

LIT imposes no such constraint. Albeit sleeping, the fighters are a likely a

fiable threat. There need be no debate as to whether their sleeping falls 

confines of deploying to or from an operation. By contrast, the alterna

interpretation of direct participation tracks LIT neatly. Both allow att

and similar situations in which the direct participant is taking a tactical 

deed, these are precisely the sorts of scenarios posed by critics of the revol

approach to convincingly point out its impracticality.

As can be seen, LIT is roughly comparable to the liberal standard of 

ticipation.63 Yet, beyond questions as to the scope of the standard lies t

certainty. With LIT, individuals must be positively identified as likely t

fore being attacked. This requirement poses a number of practical and l

tions. Central among them is the requisite type and degree of certainty. W

“positive” mean in practice? How positive? Beyond a reasonable dou

likely than not? And does positive identification mean that the individu

tion is likely to be a potential threat or, instead, likely to actually threate

Consider the requirement’s application on the bewildering battlefield 

ghanistan. What indicators should suffice in making a positive identifica

haps carrying weapons? Yet, many non-participants carried weapons in A

for self-protection. Perhaps the weapons (e.g., crew-served weapons) 

their status as a threat. However, recall that there were friendly indigen

armed with the same type of weapons, and that identity and allegiances 

cult to discern. And what type of intelligence should be required to dete

someone was a likely and identifiable threat? Many were available in Af

but which sufficed? Satellite imagery, unmanned aerial vehicle (UAV

transmitted in real time, human eyes on target, cell phone intercepts, hu

ligence? Finally, there is the critical matter of whether positive identificat

textual. That is, does the criterion represent a constant in low- and 

environments, or does high risk lower the threshold necessary for positiv

cation? In Afghanistan, both environments existed at various times and 

Uncertainty is hardly a novel phenomenon on the battlefield. That 

States have tended to mandate the only level of certainty that is practic

fog of war—would a reasonable warfighter in the same circumstances 

act? The US position is representative. The Commander’s Handbook on 

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Naval Operations provides that 

[c]ombatants in the field must make an 

termination as to whether a particular person is or is not taking a direct p

tilities based on the person’s behavior, location, and attire, and other in

available at the time.”64

International humanitarian treaty law also addresses battlefield uncer

ticle 50.1 of Additional Protocol I provides that “in case of doubt whethe

is a civilian, that person shall be considered to be civilian.”65 Obviously, 

does not rule out doubt altogether. This is clear from the ICRC Commen

provision, which notes, in an example particularly appropriate to Afgha

combatants do not clearly distinguish themselves from the civilian popu

this could result in a weakening of the immunity granted civilians and t

population.”66 Such weakening could occur only if engagement in the fa

doubt was contemplated by the commentary. The UK understanding ac

ing its ratification of the Protocol similarly adopts a contextual readin

that “the rule . . . applies only in cases of substantial doubt still remaining 

required assessment of the attack], and [it does not override] a comman

to protect the safety of troops under his command or to preserve his mili

tion, in conformity with the other provisions of the protocol.”67 The dete

term is “substantial.” Finally, the ICRC’s Customary International Hum

Law study reasonably finds that “it is fair to conclude that when there is 

of doubt, a careful assessment has to be made under the conditions and 

governing a particular situation as to whether there are sufficient indi

warrant attack. One cannot automatically attack anyone who might ap

ous.”68 Use of the phrase “sufficient indications” suggests that absolut

was not required.

It is unclear what LIT required beyond IHL’s “reasonable warfighter 

similar circumstances” threshold. Its positive-identification requireme

clear explication to the contrary, could be interpreted as suggesting that 

lished IHL frame of reference had been rejected in lieu of a more restri

dard. But, if so, how? Complicating matters even further is the fact that th

of positive identification had been adopted in other contexts. For insta

adopted for “kill or capture” operations to heighten the preconditions 

applying during a “capture or detain” operation.69 So, does PID mean 

things in different types of operations? Whatever it does mean, it is clea

was at least as restrictive as IHL—in all likelihood more so in applicatio

Another aspect of targeting in Afghanistan relevant to an IHL analy

requirement that attacks be cleared at specified levels of command. A

one director of combat operations in the Combined Air Operations Cen

Operation Anaconda,

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[

]gg

engagement for Operation Enduring Freedom, pre-planned strikes, inte

targets and time-sensitive targets all had to be approved by USCENTCOM; an

most part, the USCENTCOM/J-2 and legal advisors . . . drove what we did and 

target.70

His comments exemplified the concerns senior leadership had about o

going awry, even in the remotest of areas.71

This raises the issue of approval level. The Anaconda requirements 

even those found in the CDEM approval process. Yet, IHL imposes n

strike approval tied to likely levels of civilian harm. In great part, this is b

is contextual. The degree of lawful civilian harm is determined by refere

military advantage accruing from the attack in question. “Those who p

cide upon an attack” must also take feasible (practical in the circumsta

cautions in attack.72 In other words, the law lies where it falls—on those 

approving or executing attacks, whoever they might be. This tightening 

strictions over and above what IHL required demonstrated the extent to 

ghanistan ROE and CDEM approval levels reflected an understan

unintended civilian harm can have extra-normative consequences.

The two remaining IHL issues raised by targeting operations in Afgha

the principle of proportionality and requirement to take feasible precaut

tack. For a number of practical reasons, proportionality posed few conce

an operational perspective, the population was widely dispersed, engage

ten occurred in remote areas and no major urban battles took place. Prec

nitions were generally available when called for and intelligence, survei

reconnaissance assets, particularly unmanned aerial vehicles, could be u

sess and monitor target areas, often in real time.

Counterinsurgency doctrine and practices also minimized the play o

portionality principle in the conflict. As noted, counterinsurgency doct

high premium on the avoidance of collateral damage; in Afghanistan, ev

which were clearly proportionate were often avoided. However, cou

gency affects application of the principle in a less obvious fashion.

In conventional operations, proportionality is usually calculated in simple u

terms: civilian lives and property lost versus enemy destroyed and military ad

gained. But in COIN operations, advantage is best calculated not in terms of ho

insurgents are killed or detained, but rather which enemies are killed or det

certain key insurgent leaders are essential to the insurgents’ ability to 

operations, then military leaders need to consider their relative importan

determining how best to pursue them. In COIN environments, the number o

lives lost and property destroyed needs to be measured against how much h

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inconsequential, then proportionality requires combatants to forego [sic] sever

or seek noncombative means of engagement.73

This extract from the COIN manual is overstated. As a matter of law, th

importance of the individuals targeted is always relevant, whether in con

or counterinsurgency operations. However, the fact that the goal of an i

is not attrition of enemy forces means that the military advantage of killin

fighter is likely not as high as during attrition warfare, in which victory i

through serial destruction of enemy forces.

Reduced to basics, in Afghanistan the operational concern was the m

collateral damage, not whether that damage expected to be caused wa

relative to military advantage. Rules of engagement so embraced this cas

sion that the legal principle of proportionality never loomed large.

The case of human shields exemplifies the extent to which, in the cont

portionality, policy and operational considerations swallowed legal requ

Human Rights Watch has documented the Taliban’s widespread use 

shields,74 acts which undeniably violated international humanitarian law

Many experts correctly argue that voluntary shields are direct parti

hostilities who, therefore, do not factor into proportionality calculation

voluntary shielding, the practice most prominent in Afghanistan, the 

opinion holds that its victims remain civilians factored fully into any pro

ity analysis.76 This approach reflects Additional Protocol I, Article 51.8’s 

“any violation of . . . [inter alia, the provision prohibiting the use of shi

not release the Parties to the conflict from their legal obligations with res

civilian population and civilians . . . .”77

There have been no serious allegations that US forces ever ignored th

of human shields. On the contrary, CDEM specifically mandates consid

the presence of human shields; such presence elevates the required appr

Recall also that rules of engagement and other operational guidelines in 

stan often required US forces to withdraw if the enemy was collocated 

ians. Because US forces were already bound by policy and o

requirements exceeding those of IHL, the use of human shields neithe

cated application of the existing legal norms nor created pressure for a r

terpretation thereof.

Counterinsurgency operations raise a final theoretical question as t

tionality: Does collateral damage directly influence the degree of milita

tage accruing from an attack (as distinct from the determination o

collateral damage is excessive relative to military advantage)? An analogo

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force protection. During Operation Allied Force, NATO aircraft flew a

outside the threat envelope of Federal Republic of Yugoslavia air defen

counterfactual, allegations surfaced that this tactic heightened risk to t

population. The affair has generated a lively academic debate over wheth

of the aircrew and aircraft should be considered military advantage wh

proportionality calculations.78

The case of Afghanistan presents the opposite case. If aircrew and ai

vival enhance military advantage, does the counterproductive nature o

damage during a counterinsurgency detract from it? After all, avoidanc

eral damage constitutes an express objective in such conflicts.

Although it is not the place to resolve this complex issue, it is import

derstand that, as a rule, military advantage is typically viewed as advanta

ing friendly operations or hindering the enemy’s.79 The notion does not 

winning hearts and minds, a point illustrated by agreement that destroy

civilian morale does not qualify as advantage vis-à-vis the definition of m

jective.80 Rather, military advantage is purely military in nature; ther

some direct contribution to military operations. Political, economic or 

vantage does not suffice.

This being so, any assertion that collateral damage should diminish m

vantage would have to be supported by a direct nexus to military fact

true that collateral damage motivates civilian sympathy for the enemy, 

eral effects are too attenuated. As a general rule, then, collateral damag

part in proportionality calculations beyond being measured against the 

of excessiveness.

The final area of consideration is the requirement to take precauti

tack. Codified in Additional Protocol I, Article 57, it requires an attacke

mize collateral damage by taking feasible steps to avoid and, in a

minimize “incidental loss of civilian life, injury to civilians and damage 

objects.” Precautions include both target verification and choosing am

able targets, weapons and tactics so as to lessen the impact of an attack 

vilian population.

In modern conflicts, critics increasingly condemn targeting operatio

ure to comply with the requirement. This phenomenon results, in part

fact that the globalized media and non-governmental organizations, e

modern communications technology, have a powerful ability to focus at

civilian casualties and harm to civilian objects. Collateral damage is easi

when viewed in the media; understanding the complexity of mounting 

attack is not. Thus, perceptions can become distorted.

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Further, the availability of advanced intelligence, surveillance and r

sance assets, especially UAVs and precision weaponry, such as the smal

bomb,81 has created the false impression that technology makes “zero 

damage” attacks possible. The result is a recurring sense that failure to ta

tions is the only possible explanation for civilian damage, injuries and d

Reports on US and coalition operations in Afghanistan exemplify this 

For instance, the Human Rights Watch report on the conflict, Troops i

asserts that “[t]he cases described here raise concerns as to whether the 

forces acted in accordance with their obligation under the laws of war 

‘constant care to spare the civilian population’ and take ‘all feasible prec

minimize loss of civilian life.”83

Human Rights Watch displayed a sophisticated understanding of targ

cedures during the conflict. The organization found that “when aerial b

planned, mostly against suspected Taliban targets, US and NATO for

ghanistan have had a very good record of minimizing harm to civilians 

explained,

[p]lanned attacks allow the US and NATO to use civilian risk mitigation pro

including formal risk estimates to model and minimize civilian casualti

includes a “pattern of life analysis,” which looks for civilians in the area for h

days before an attack using “eyes on the target” ranging from ground obse

technical reconnaissance. According to NATO Judge Advocate General (JAG) 

US and NATO also require positive visual identification of the target during a 

strike, allowing the pilot to look for civilians and call off an attack based o

observations. Planned strikes also allow the US and NATO to develop a tar

time, thereby using far more detailed intelligence to understand who is and is n

target area.85

Most casualties were caused, by contrast, during non-preplanned stri

TIC situations occurred when US or coalition forces came upon the ene

pectedly. Although the rules of engagement provided that forces should 

when civilians were in the vicinity of an attack, doing so was not alway

For instance, it might expose them to greater risks or the path of retreat 

been cut off by the enemy. The report also pointed to cases which “beg

but lasted for several hours or days, with airstrikes used to support sm

numbers on the ground resulting in civilian deaths.”86

Human Rights Watch expressed numerous concerns about such eng

With regard to TICs that developed into prolonged battles, the or

opined that the resulting civilian casualties “suggest[ed] that the US is 

all feasible precautions during prolonged battles, including using adequ

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to minimize civilian harm, employing low

collateral damage bombs, 

tively identifying the locations of combatants and civilians.”87 It also sugg

while preplanned attacks involved intricate procedures to determine th

of civilians, during a TIC the “tactical collateral damage assessment per

the Joint Terminal Attack Controller (JTAC), a service member qualified 

ing airstrikes on the ground[,] is one of the only checks done, and, of 

such assessments often are made under the stress of hostile fire.”88

While Troops in Contact is the best report produced by the organizat

ternational humanitarian law in recent conflicts,89 its analysis of the prec

attack norms misses several key points. As it did in its report on Opera

Freedom, Human Rights Watch appears to have imposed a rebuttable 

tion that collateral damage evidences a failure to take sufficient precaut

tack. This shifts the burden to the attacker, who by this appro

demonstrate that it complied with precautions norms. That this is so is 

by a flawed tendency to allege failure to take feasible precautions withou

ing or developing those which were presumably available, but ignored.

“Feasible precautions” have been defined as “precautions which are p

or practically possible taking into account all circumstances ruling at th

cluding humanitarian and military considerations.”90 Consider the s

cited above. Albeit reasonable in the abstract, there is no support in the 

the proposition that they were feasible in the sense of being practical in th

stances at hand. For instance, were additional troops on hand that could 

deployed to minimize civilian harm? Or were low-collateral-dama

readily available, either at bases from which aircraft launched or aboard 

ing aircraft (since many attacks were conducted by aircraft to which ta

passed while already airborne)? As to the fact that only JTACs generally h

target, one must query what the alternative might have been. What seem

been missed is that, as a matter of law, the feasible-precautions-in-attac

ments only apply when there are practical alternatives available to the att

burden of demonstrating non-compliance lies with those asserting viola

requirements, not the forces executing the attack.

In contrast to the LIT criterion for engagement, self-defense was mu

since it is a standard to which US and other forces train and with whic

therefore, familiar. Self-defense presents no status issues because anyo

whom self-defense is necessary can be engaged. Further, it poses 

participation-in-hostilities concerns, because only those who are actua

ing, or about to attack, are liable to being engaged defensively. According

the scope nor the timing debates infecting direct-participation analysis, a

spondingly, the LIT criterion, surface.

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Be that as it may, even self

defense proved troublesome in Afghanista

ten the case with application of rules of engagement, mission accom

standards tended to slip into application of self-defense principles.91 The 

precedent for acting in self-defense is either a hostile act or a demonstrati

tile intent.92 For US forces, this standard is codified in the Standing Ru

gagement. Both criteria reflect the self-defense concept of military ne

which force may only be used if lesser means of addressing the threat are 

to suffice.

In preparing for combat in Afghanistan, “considerable time and effort 

attempting to create training packages aimed at developing a specific lev

tification before either returning fire or taking other actions in response t

act or demonstration of hostile intent.”93 Identification has no place in se

situations, other than to locate the source of the hostile act or demon

hostile intent. It is instead an element of mission accomplishment rules 

ment, by which forces are authorized to attack combatants and direct p

only once they have been reliably identified as such.

It is well-accepted that intermingling mission accomplishment and se

notions in rules of engagement risks causing those who need to act in se

to hesitate, thereby endangering themselves and others in their units. 

US training emphasizes that there is no need to seek higher approval in se

situations, for delay may impede the ability of troops to defend thems

only in mission accomplishment rules of engagement that engagemen

levels appear. Conflating the two types of rules of engagement can conf

at the tactical level, causing them to act precipitously when they should 

higher approval in a mission accomplishment engagement.

A further self-defense complication derived from the fact that US a

forces operated in the same theater. Both used “hostile intent” as a cr

employing airpower in defensive operations employing airpower.94 

NATO defined the term as “manifest and overwhelming” force, where

standard was “the threat of imminent use of force.”95 In other words, t

standard placed greater emphasis on the necessity criterion of self-defen

more restrictive temporally. Employing the same term differently crea

sion regarding the availability of air support in TIC situations, especially 

and NATO forces were supporting each other. It also created an impre

the US forces were quick to pull the trigger. As one ambassador in the co

Human Rights Watch, “[s]ome Afghans think the US is worse than the 

The problem is in the TIC they call in air support in a hurry, and specia

too far on the ground and call in airstrikes too often. There is a cultura

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with the US

they are cowboys.Since counterinsurgencies seek supp

population, such perceptions, whether correct or not, prove costly.

Finally, the mere notion of a self-defense rule of engagement is mi

armed conflicts. This is so not only because combatants are always law

but also due to the fact that the concept of direct participation already p

gaging anyone who is attacking or about to attack. The debate over the s

rect participation has no bearing in this regard; all sides agree that a

constitute a hostile act or a demonstration of hostile intent in the self-def

qualify as acts of direct participation. The controversy over the “for such 

terion is equally irrelevant, since the term undeniably includes the perio

attack is imminent or under way (the self-defense period).

Consequently, the only legally relevant circumstance for self-defense 

armed conflict is defense against those who do not meet the scope requir

direct participation, specifically that requiring a belligerent nexus to the 

Expanding self-defense beyond such situations by giving it a central role 

ment guidance was, therefore, unusual as an operational matter and un

as a matter of law. Doing so represented yet another policy and operati

sion ratcheting back what was allowed by international humanitarian la

Concluding Thoughts

What is fascinating about the application of IHL in Afghanistan (and ot

conflicts) is that its foundational premise seems to have been turned o

International humanitarian law is designed for classic attrition warfare, w

side tries to so wear down the enemy forces that they can no longer cont

ing. The St. Petersburg Declaration principle that law fixes the “limits at 

necessities of war ought to yield to the requirements of humanity” c

neatly with warfare along such lines.97 Both sides sought to avoid excess

tions on their military actions, but both also wanted to ensure the pro

their civilian populations. Military necessity and civilian harm were coun

in a zero-sum game.

However, this traditional balance began to be stressed by the emergen

cive warfare, in which the objective is not to defeat the enemy, but rather 

decisionmaker’s calculations. NATO’s air campaign in 1999 (Operat

Force), during which the goal was to convince Slobodan Milosevic to st

tering the Kosovar Albanians and return to the negotiating table, best 

coercive warfare in the contemporary context.98 The dilemma was tha

those assets, the destruction of which would most effectively have su

(such as property owned by the State’s leader), qualified as protecte

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property under international humanitarian law. The ensuing calls for a 

of the lex lata should have come as no surprise.99

Counterinsurgency warfare, in that it seeks to win hearts and minds, c

“persuasive” warfare, that is, warfare designed to influence the populat

State in which an insurgency is under way, and, to a lesser extent, int

public and governmental opinion. Since collateral damage hinders milit

tions by undercutting domestic and international support and by increas

gent strength, strict compliance with IHL norms actually complemen

necessity. Accordingly, as in Afghanistan, counterinsurgent forces often 

strictions on their operations that far outstrip those found in the law. H

ians and counterinsurgency warfighters paradoxically find themselves in 

Their perspectives on the practices may, nevertheless, conflict. Althou

strictions originate as context-specific operational and policy choices, hu

ans tend to style them as normative. As a matter of law, the crux of t

whether such restrictions comprise State practice bearing on the emergen

tomary international law norms.

The ICRC’s Customary International Humanitarian Law study notes 

physical and verbal acts of States constitute practice that contributes to th

of customary international law. Physical acts include, for example, batt

havior. . . . Verbal acts include military manuals . . . instructions to armed 

rity forces, military communiqués during war . . . .”100 But what must be e

is that State practice matures into customary law only when it eviden

juris sive necessitatis, a belief on the part of States engaging in said practi

legally obligatory.101 Clearly, the extensive restrictions placed on US and 

forces in Afghanistan did not result from legal concerns, but rather app

that even legal collateral damage would prove counterproductive in th

context of Afghanistan. In other words, they did not rise to the level of S

tice which would evidence the emergence of international humani

norms more restrictive than those already extant.

Be that as it may, warfighters, commentators and judge advocates ofte

the distinction between humanitarian law and rules of engagement (and 

gagement mandates). The latter include not only elements of law, but a

tional and policy dictates. Because ROE are the actual norms applic

battlefield, many observers lose sight of the difference, thereby distort

ments of State practice.102 One can imagine that the CDEM process, fo

might foster expectations that greater collateral damage requires a high

approval authority. Similarly, the LIT concept risks suggesting that there 

ger any military necessity in declaring combatants hostile, as permitted 

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Ultimately, the conduct of hostilities in Afghanistan illustrated a shif

toward legitimacy. As governments, non-governmental organizations, 

and others raise expectations, there is decreasing emphasis on strict lega

In Afghanistan, for instance, authorization to conduct attacks which w

erwise comport with the proportionality principle was sometimes deni

ing “bad press” or negative communicative consequence. The requi

take feasible precautions in attack seems to be slowly slipping toward 

of all possible precautions.

Clearly, law is playing a lesser role in targeting than it has in past con

lesson has not been lost on enemy forces, who increasing employ lawfar

of law as a “weapon” employed to create the impression, correct or not, t

ponent acts lawlessly, thereby undercutting support for the war effort.103 

of this strategy, there is even greater motivation for operating at levels 

far exceeding the IHL’s mandates. But doing so only exacerbates the blu

gal, policy and operational practices.

Prosecuting a conflict to the limit of the law to prevent erosion of th

necessity aspect of international humanitarian law is self-evidently not t

At least in a counterinsurgency doing so would sacrifice victory on the alt

ciple. Nevertheless, rules of engagement and other targeting restrictions 

crafted in a way that reflects the content, structure, function and accep

nology of this body of law. Afghanistan should serve as a warning that un

ing and communicating the difference between law, on the one h

operational and policy choices, on the other, remains imperative.

Notes

1. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts art. 49.1, June 8, 1977, 1125 

reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Gu

ed. 2000) [hereinafter AP I].

2. The accepted definition of international armed conflict is found in Common 

the four 1949 Geneva Conventions: “[A]ll cases of declared war or of any other arm

which may arise between two or more [States], even if the state of war is not recogniz

them.” Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter 

vention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 

Armed Forces at Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter G

vention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S

U.N.T.S. 135 [hereinafter GC III]; and Convention Relative to the Protection of Civi

in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC 

printed in id. at 197, 222, 244 and 301, respectively.

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Terrorism,” 46 VIRGINIA JOURNAL OF INTERNATIONAL LAW 165, 177–90 (2005). In 

dent George Bush concluded that the conflict with Al Qaeda was “international in sc

orandum from George W. Bush to the Vice President et al., Subject: Humane Trea

Qaeda and Taliban Detainees para. 2(c) (Feb. 7, 2002), reprinted in THE TORTURE P

ROAD TO ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005). Four ye

Supreme Court disagreed, finding a conflict with transnational terrorists to be “not 

national character,” as that term is employed in Common Article 3 to the 1949 Gene

tions. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2795–97 (2006). The International Co

the Red Cross takes the position that transnational terrorism, absent a nexus to either 

tional or non-international armed conflict, fails to qualify as an armed conflict in th

See INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERNATIONAL HUMANIT

AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS 7–8, available at 

.icrc.org/Web/eng/siteeng0.nsf/htmlall/ihl-30-international-conference-101207/$File/IH

-30th-International-Conference-ENG.pdf [hereinfter IHL and the Challenges of Co

Armed Conflicts].

4. Despite its illegitimacy, and non-recognition by most States, the Taliban con

de facto government of Afghanistan in that it controlled the greatest amount of t

generally exercised the normal functions of governance. As noted by Yoram Dinstein

mal recognition is required by a belligerent State as to the statehood of the opposing 

as the adversary satisfies objective criteria of statehood under international law, any 

flict between two belligerent Parties would be characterized as inter-State.” YORAM 

THE CONDUCT OF HOSTILITIES IN THE LAW OF INTERNATIONAL ARMED CONFLIC

Therefore, in humanitarian law terms, the conflict in Afghanistan between the Ta

(and organized armed groups supporting the Taliban) and the US-led coalition was 

tional armed conflict.

5. S.C. Res. 1419, U.N. Doc. S/RES/1419 (June 26, 2002). Additional Protoc

Geneva Conventions, which addresses non-international armed conflict, does not 

conflict because Afghanistan is not a party to the instrument; even if it was, the co

not meet the threshold criteria set forth in Article 1.1. Protocol Additional to the G

ventions of 12 August 1949, and Relating to the Protection of Victims of Non-In

Armed Conflicts art. 1.1, June 8, 1977, 1125 U.N.T.S. 609, reprinted in DOCUMEN

LAWS OF WAR, supra note 1, at 483. However, the conflict does meet the threshol

Common Article 3, to which Afghanistan is a party, as an “armed conflict not of an in

character,” as well as those contained in customary international law. GC I, II, III, IV, s

art. 3; MICHAEL N. SCHMITT, CHARLES H.B. GARRAWAY & YORAM DINSTEIN, THE M

THE LAW OF NON-INTERNATIONAL ARMED CONFLICT, Rule 1.1.1 and accompanyin

tary (2006),reprinted in 36 ISRAEL YEARBOOK ON HUMAN RIGHTS (2006) (Special Su

available at http://www.michaelschmitt.org/images/Manual%5B1%5D.Final.Brill..

after NIAC Manual].

6. This is the position taken by the International Committee of the Red Cross 

IHL and the Challenges of Contemporary Armed Conflicts, supra note 3, at 8. How

experts see a continuing international armed conflict, existing beside the non-intern

with Al Qaeda and related transnational terrorist groups.

7. AP I, supra note 1, art. 48. In the Tadic case, the International Criminal Trib

former Yugoslavia Appeals Chamber held that the principle of distinction, which lies 

of the law of targeting, applies in non-international armed conflict. By the decision

rules had developed to govern “internal strife,” covering

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attacks, protection of civilian objects, in particular cultural property, protectio

those who do not (or no longer) take active part in hostilities, as well as prohib

means of warfare proscribed in international armed conflicts and ban of 

methods of conducting hostilities.

Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutor

Jurisdiction para. 127 (Oct. 2, 1995). The Tribunal cited General Assembly Resol

which recognized the “necessity of applying basic humanitarian principles in all arm

Id., para. 110, citing G.A. Res. 2444 (XXIII), U.N. Doc. A/7218 (Dec. 19, 1968), 

Human Rights in Armed Conflicts, reprinted in THE LAWS OF ARMED CONFLICT 5

Schindler & Jiri Toman eds., 4th ed. 2004). The United States later recognized the R

“declaratory of existing customary international law.” Letter from J. Fred Buzha

Counsel of the Department of Defense, to Senator Edward Kennedy (Sept. 22, 1972),

A. Rovine, Contemporary Practice of the United States Relating to Internation

AMERICAN JOURNAL OF INTERNATIONAL LAW 118, 122 (1973). See also NIAC M

note 5, at 11; CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 25–29 (R

accompanying commentary) (Jean-Marie Henckaerts & Louise Doswald-Beck 

[hereinafter CIHLS]; COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1

GENEVA CONVENTIONS OF 12 AUGUST 1949 para. 4761 (Yves Sandoz, Christophe 

Bruno Zimmermann eds., 1987) [hereinafter AP I Commentary].

8. The US Army has cited complexity as a major factor in future operations. In 

points to three especially relevant manifestations: complex physical terrain, complex 

rain and complex informational terrain.

In the face of overwhelming U.S. combat power, future adversaries can be exp

conduct operations more frequently from the shelter ofcomplex physical terrain 

jungle/forest, and mountain). Such terrain typically comprises a mosaic o

patches and highly restrictive terrain, with the potential to minimize expo

superior firepower, inflict higher U.S. casualties, and prolong the conflict. 

defenses, in particular, will tend to reduce U.S. advantages in overhead infor

collection, tactical mobility, and long-range precision fires, instead placing a pr

on dismounted maneuver, direct fires, ground reconnaissance, HUMINT, a

troop strength needed to conduct them.

An urban setting also invites adversaries to exploit public sensitivities to co

damage and civilian casualties, and tends to magnify the perceived costs of pro

conflict. . . .

Complex human terrain exists where numerous population groups coexist in th

physical space—often a city or an urbanized area. These might include ethno-lin

groups, political factions, tribes or clans, religious sects, or ideological mov

Identification of combatants in complex human terrain is extraordinarily d

applying force in such an environment imposes a high risk of counterprodu

unintended consequences.

Finally, complex informational terrain is the multiple sources or transmission p

communications, data, or information—including news media. A force oper

complex informational terrain will not have the ability to control information 

U.S. Army Training and Doctrine Command, TRADOC Pam. 525-3-0, The Ar

Operations: The Army’s Future Force Capstone Concept 2015–2024, at 44 (2005).

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Factbook, Afghanistan (2008), https://www.cia.gov/library/publications/the-worl

geos/af.html (last visited Mar. 11, 2009).

10. This approach reversed the standard tactic of ground forces driving the enem

where it can be attacked by airpower. In Afghanistan, air attacks often did the oppo

forces driving the enemy into areas where it could be engaged by ground forces.

11. “An organized movement aimed at the overthrow of a constituted governm

use of subversion and armed conflict.” Chairman of the Joint Chiefs of Staff, Joint Pu

02, Dictionary of Military and Associated Terms (Apr. 12, 2001, as amended throu

2008), http://www.dtic.mil/doctrine/jel/doddict/ [hereinafter DoD Dictionary]. Sec

cil resolutions setting forth mandates on Afghanistan illustrate the counterinsurgen

operations. See, e.g., S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C. Res

Doc. S/RES/1413 (May 20, 2002); S.C. Res. 1444, U.N. Doc. S/RES/1444 (Nov. 20

Res. 1510, U.N. Doc. S/RES/1510 (Oct. 13, 2003); S.C. Res. 1563, U.N. Doc. S/RES

17, 2004); S.C. Res. 1623, U.N. Doc. S/RES/1623 (Sept. 13, 2005); S.C. Res. 1659, U

RES/1659 (Feb. 15, 2006); S.C. Res. 1707, U.N. Doc. S/RES/1707 (Sept. 12, 2006); S.C

U.N. Doc. S/RES/1746 (Mar. 23, 2007); S.C. Res. 1776, U.N. Doc. S/RES/1776 (Sep

S.C. Res. 1817, U.N. Doc. S/RES/1817 (June 11, 2008); S.C. Res. 1833, U.N. Doc. 

(Sept. 22, 2008).

12. US Marine Corps & US Special Operations Command, Multi-Service Conce

ular Warfare Version 2.0, USMC Combat Development Command and US Special 

Command Center for Knowledge and Futures, at 5–6 (2006), available at http://ww

cgi-bin/GetTRDoc?AD=ADA454228&Location=U2&doc=GetTRDoc.pdf.

13. Headquarters, Department of the Army & Headquarters, Marine Cor

Development Command, FM 3-24/MCWP 3-33.5, Counterinsurgency, at 1-141–1

available at http://www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf [herein

Manual]. The manual was drafted in part by General David Petraeus, who presently 

US Central Command (CENTCOM). The command exercises responsibility over 

in both Iraq and Afghanistan.

14. Id. at 1-150.

15. Chairman of the Joint Chiefs of Staff, Joint Publication 3-0, Joint Operat

(2006, incorporating change 1 (Feb. 13, 2008)), available at http://www.dtic.mil/d

new_pubs/jp3_0.pdf.

16. Headquarters, Air Force Doctrine Center, AFDD 2-1.9, Targeting, at 35 (200

at http://www.dtic.mil/doctrine/jel/service_pubs/afdd2_1_9.pdf [hereinafter AFDD 

target validation phase ensures vetted targets

achieve the effects and objectives outlined in a commander’s guidance a

coordinated and deconflicted with agencies and activities that might present a 

with the proposed action. It also determines whether a target remains a viable e

of the target system. During the development effort, the targets may also require 

and approval based on the sensitive target approval and review process, coor

through the combatant commander to national authorities.

Id. at 34.

17. The CDEM methodology is set forth in Chairman of the Joint Chiefs of St

3160.01B, Joint Methodology for Estimating Collateral Damage and Casualties f

tional Weapons: Precision, Unguided and Cluster (Aug. 31, 2007). The document 

cial Use Only” and unavailable to the public. For open-source discussions of th

Colin H. Kahn, Boots on the Ground or Bolts from the Blue? Risks to Civilian

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the Cornell University “Human Rights at War” Workshop, Nov. 9–10, 2007); 

ROBLYER, BEYOND PRECISION: ISSUES OF MORALITY AND DECISION MAKING IN M

COLLATERAL CASUALTIES, PAPER FOR THE PROGRAM IN ARMS CONTROL, DISARMA

INTERNATIONAL SECURITY 18 (2003), available at http://acdis.illinois.edu/asse

BeyondPrecisionIssuesofMoralityandDecisionMakinginMinimizingCollateralCasu

18. 1 Center for Law and Military Operations, Judge Advocate General’s Legal 

School, Lessons Learned from Afghanistan and Iraq, Major Combat Operations (1

2001–1 May 2003), at 84 (2004) [hereinafter 1 Lessons Learned].

19. The CENTCOM CDEM for both Operation Enduring Freedom and Operatio

dom is illustrative. It sets forth a series of questions to be addressed during the CDEM 

1. Can I positively identify the object or person I want to attack as a legitimate m

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 sig

environmental concern within the effects range of the weapon I would like to 

attack the target?

3. Can I avoid damage to that concern by attacking the target with a different w

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 targe

Id. at 103, citing US Central Command, Collateral Damage Estimation Policy and M

para. 2 (2003).

20. However, the law of targeting contains many unresolved issues. On some 

Michael N. Schmitt, Targeting, in PERSPECTIVES ON THE ICRC STUDY ON CUSTOM

NATIONAL HUMANITARIAN LAW 131 (Susan Breau & Elizabeth Wilmshurst eds., 200

N. Schmitt, Fault Lines in the Law of Attack, in TESTING THE BOUNDARIES OF INTE

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 Co

Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M

12.1/COMDTPUB P5800.7A paras. 8.2.1, 8.2.2 (2007) [hereinafter NWP 1-14M]; U

OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT para. 5.32 (2004) 

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

cluding objects like ammunition depots, tanks, combat aircraft, headquarters or m

racks. “Location” refers to areas that have “special importance to military opera

classic example is a mountain pass that can be blocked to foil the enemy’s advance. W

intelligence or other information indicates that the enemy intends to use an object 

the future, the object qualifies as a military objective through “purpose.” Finally, “

that the enemy is presently utilizing an object militarily. AP I Commentary, supra n

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 

unless and for such time as they take a direct part in hostilities.” See also CIHLS, sup

19 (Rule 6); NWP 1-14M, supra note 21, para. 8.2.2; British Manual, supra note 21

24. AP I, supra note 1, arts. 51.4(a) & 51.5(a). See also CIHLS, supra note 7, at 3

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

NWP 1-14M, supra note 21, para. 9.1.2; British Manual, supra note 21, para. 6.4.

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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

.nsf/FULL/620?OpenDocument.

28. NWP 1-14M, supra note 21, para. 8.3.1. The requirement is codified in AP I

1, art. 57. See also CIHLS, supra note 7, ch. 5; British Manual, supra note 21, para. 5

29. AP I, supra note 1, arts. 51.5(b) & 57.2(b); CIHLS, supra note 7, ch. 4; NWP 1

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 

tionate. AP I Commentary, supra note 7, para. 1980. See discussion in DINSTEIN, sup

120–21.

31. For a discussion of the incidents, see Sean D. Murphy, Contemporary Pr

United States Relating to International Law, 96 AMERICAN JOURNAL OF INTERNAT

237, 247 (2002).

32. HUMAN RIGHTS WATCH, TROOPS IN CONTACT 22 (2008) [hereinafter 

CONTACT], citing e-mail communication from NATO Media Operations Center 

Rights Watch (May 6, 2008).

33. Id. at 14.

34. Karzai Denounces Reported Civilian Deaths from U.S., NATO Raids, Online 

(May 2, 2007), http://www.pbs.org/newshour/updates/asia/jan-june07/afghanistan_0

35. Headquarters United States Air Force, Operation Anaconda: An Airpower 

42–43 (2005), available at http://www.af.mil/shared/media/document/AFD-060726

36. “Directives issued by competent military authority that delineate the circum

limitations under which United States forces will initiate and/or continue combat 

with other forces encountered.” DoD Dictionary, supra note 11.

37. “A folder, hardcopy or electronic, containing target intelligence and relat

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 

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 operat

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 ra

ment of targets and simultaneously provide safeguards for friendly forces.” Id.

42. A card distributed to soldiers bearing simple rules regarding the use of forc

matters.

43. 1 Lessons Learned, supra note 18, at 86–88. See generally AFDD 2-1.9, supr

94–95.

44. AP I, supra note 1, art. 51.3; CIHLS, supra note 7, at 19 (Rule 6); NWP 1-14M

21, para. 8.2.2; British Manual,supra note 21, para. 5.3.2. See also the reports of meetin

of international experts advising the ICRC on interpretive guidance regarding the not

participation, available at http://www.cicr.org/Web/Eng/siteeng0.nsf/htmlall/p

-hostilities-ihl-311205. The guidance will be issued in 2009.

45. The United Nations Office of the High Commissioner for Human Rights is

effectively a model standard in 1990. The Basic Principles on the Use of Force and 

Law Enforcement Officials provides that

[l]aw enforcement officials shall not use firearms against persons except in self-

or defense of others against the imminent threat of death or serious injury, to 

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person presenting such a danger and resisting their authority, or to prevent hi

escape, and only when less extreme means are insufficient to achieve these objec

any event, intentional lethal use of firearms may only be made when 

unavoidable in order to protect life.

U.N. Doc. A/CONF.144/28/Rev.1, prov. 9 (1990), available at http://www.unhchr.ch/h

b/h_comp43.htm. On this and other use-of-force standards, see Michael N. Schm

Killings in International Law: Law Enforcement, Self-Defense and Armed 

INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW: TOWARDS A NE

IN INTERNATIONAL LAW 525 (Roberta Arnold & Noelle Quenivert eds., 2008).

46. Chairman of the Joint Chiefs of Staff, CJCSI 3121.01B, Standing Rules of Eng

US Forces, encl. A, paras. 2a & 3a (2005). A hostile act is “an attack or other use of f

the United States, US forces or other designated persons or property.” Hostile in

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 

(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 

School, Lessons Learned from Afghanistan and Iraq, Full Spectrum Operations (2 

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 an

vocates at the CENTCOM level. The standard was applauded by some judge advo

criticized by others. Id. at 96 n.59.

53. Personal experience of author while Staff Judge Advocate, Operation North

1997.

54. A Marine after-action report expressed the frustration:

Upon 26th [Marine expeditionary unit (special operations capable)]’s arrival in 

Fleet [area of responsibility], I immediately began requesting guidance and clari

on the intent and meaning of this new concept, “likely and identifiable thre

concerns were primarily that “likely and identifiable threat” was introdu

unfamiliar concept to our Marines immediately before the commencement of 

operations. I had trained our Marines on the concepts of hostile act, hostile int

declared hostile, as well as other U.S. Standing ROE concepts, and was certain as 

ability to implement them in any context; however, on its face, “likely and iden

threat” appeared to beg further elaboration and clarification.

. . . .

[I]f judge advocates and commanders have relative difficulty in defining ROE t

goes without saying that the Marines charged with implementing the ROE wi

have similar difficulties.

1 Lessons Learned, supra note 18, at 100 n.77, citing Staff Judge Advocate, 2

Expeditionary Unit (Special Operations Capable), After Action Report: Operatio

Freedom/Operation Swift Freedom (Mar. 22, 2002). Similar frustrations were e

others, including US Army judge advocates. Id.

55. Id. at 106 n.91, citing Memorandum, Dean L. Whitford, former Group Judg

5th Special Forces Group (Airborne), Staff Judge Advocate, Joint Special Operations 

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Task Force–West and successor CJSOTF–Arabian Peninsula (OIF), for Major Danie

Deputy Director, CLAMO, subject: Task Force Dagger OEF/OIF ROE AAR (June 1

56. Id. at 100, citing Major Thomas A. Wagoner, Staff Judge Advocate, 15th Mar

tionary Unit (Special Operations Capable), After Action Report of the 15th MEU

Pac 01 (2002).

57. This discussion is based on the experience of the author as a member of the 

perts participating in the ICRC effort to produce Interpretive Guidance on the Noti

Participation. The ICRC Interpretive Guidance is expected to be released in March 

58. Some controversy exists over whether the standard applies equally in non-in

armed conflict. The author believes it should. Others would add a requirement that 

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 H

Private Contractors or Civilian Employees,5CHICAGO JOURNAL OF INTERNATIONA

535–36 (2005). The Israeli Supreme Court addressed the issue in Public Committee A

ture in Israel et al. v. Government of Israel et al., HCJ 769/02, Judgment, para. 30 (De

reprinted in 46 INTERNATIONAL LEGAL MATERIALS (2007), available at http://elyon1.

files_eng/02/690/007/a34/02007690.a34.pdf. It rejected an argument that the “for 

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 

cordance with the ordinary meaning to be given to the terms of the treaty in their co

the light of its object and purpose.” Vienna Convention on the Law of Treaties art. 

for signature May 23, 1969, 1155 U.N.T.S. 331. On the balance between military n

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 dif

pretations of direct participation on assessments of the appropriateness of LIT cause 

cern, it is important to emphasize that under both approaches (and LIT) an individ

temporary sanctuary in an inhabited area during an operation still qualifies as an at

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 th

sion not to declare forces hostile already meant that operations in Afghanistan comm

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 

same rule regarding objects as customary in nature, for it risks shifting the burd

termining the precise use of an object to the attacker from the person controlling th

US DEPARTMENT OF DEFENSE, FINAL REPORT TO CONGRESS: CONDUCT OF THE PE

WAR 616 (1992).

65. AP I, 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 D

ON THE LAWS OF WAR, supra note 1, at 510–11.

68. CIHLS, supra note 7, at 24.

69. Author interview with judge advocate responsible for providing legal advice 

ations (May 2008).

70. Operation Anaconda, supra note 35, at 40.

71. Anaconda was the first operation to involve significant US conventional grou

72. AP I, supra note 1, art. 57.

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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

note 21, para. 8.3.2; British Manual, supra note 21, para. 15.14.2; NIAC Manual, s

para. 2.3.8.

76. But see DINSTEIN, supra note 4, at 131, arguing that “the test of excessive inj

relaxed.”

77. AP I,supra note 1, art. 51.8. On human shields, see generally Michael N. Schm

Shields and International Humanitarian Law, 38 ISRAEL YEARBOOK ON HUMAN 

(2008).

78. But all sides of the debate agree it is a factor in determining whether prec

feasible.

79. In terms of the quantum of advantage, the ICRC Commentary notes that “it 

mate to launch an attack which only offers potential or indeterminate advantages.” 

mentary, supra note 7, para. 2024.

80. See DINSTEIN, supra note 4, at 85–86; Schmitt, Fault Lines, supra note 20, at 

81. The small-diameter bomb is a guided munition that relies on the Global Posi

tem of satellites to provide navigation to target. Because it is accurate, it does not nee

sive force that would otherwise be required to ensure destruction of the target. I

(currently in the 250 lb. class) reduces the likelihood of collateral damage. Factshee

Small Diameter Bomb, Air Force Link, http://www.af.mil/factsheets/factsheet.a

(last visited Mar. 11, 2009). An upgrade replaces the steel casing with a composi

reduce the fragmentation effects of the weapon. Small Diameter Bomb/Small Sm

GlobalSecurity.org, http://www.globalsecurity.org/military/systems/munitions/sdb.h

ited Mar. 11, 2009).

82. See, e.g., HUMAN RIGHTS WATCH, OFF TARGET: THE CONDUCT OF THE W

VILIAN CASUALTIES IN IRAQ 21–22, 40 (2003). For a discussion of the report’s conclu

cautions in attack, see Michael N. Schmitt, The Conduct of Hostilities During Ope

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 

that which is preplanned (scheduled). Dynamic targeting occurs when a target wa

pated or when, although anticipated, it was not identified in sufficient time to perform 

mission planning. Time-sensitive targeting occurs when there is a need for an im

sponse because of a threat to friendly forces or in cases involving important lucrative 

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 a

fort, for instance, to determine the times at which a strike will risk the least incidenta

civilians.

89. For a discussion of the organization’s earlier report on Iraq, see Schmitt, su

90. Protocol on Prohibitions or Restrictions on Use of Mines, Booby Traps and O

art. 3(1), Oct. 10, 1980, as amended May 3, 1996, 2048 U.N.T.S. 133, reprinted in D

ON THE LAWS OF WAR, supra note 1, at 536.

91. Mission accomplishment rules of engagement are guidelines for performing 

mission, as distinct from those relating to defense of oneself and the force. For instan

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pggg

attack.

92. See definitions at note 46 supra.

93. 2 Lessons Learned, supra note 50, at 131, citing, for Operation Enduring Fre

Message (S) 212315Z NOV 01, para. 3.H, and, for Operation Iraqi Freedom, US

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 w

Kabul (July 22, 2007).

97. St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosiv

Under 400 Grammes Weight, Nov. 29, 1868, 138 Consol. T.S. 297, reprinted in DOC

THE LAWS OF WAR, supra note 1, at 54.

98. On coercive strategies, also labeled compellance strategies, see Michael N. S

geting and Humanitarian Law: Current Issues, 34 ISRAEL YEARBOOK ON HUMAN RIG

69 (2004).

99. See, e.g., Charles J. Dunlap Jr., The End of Innocence: Rethinking Noncomba

Post-Kosovo Era, STRATEGIC REVIEW, Summer 2000, at 14.

100. CIHLS, supra note 7, at xxxii. This approach has been criticized as overb

United States. Letter from John B. Bellinger III, Legal Adviser, US Department of Sta

liam J. Haynes, General Counsel, US Department of Defense, to Dr. Jacob Kellenb

dent, International Committee of the Red Cross (Nov. 3, 2006), 46 INTERNATIO

MATERIALS 514 (2007).

101. Article 38 of the Statute of the International Court of Justice is universally a

restatement of the sources of international law. Paragraph 1(b) includes “internatio

as evidence of a general practice accepted as law” in such sources. Statute of the In

Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993. According 

national Court of Justice,

[n]ot only must the acts concerned amount to a settled practice, but they must 

such, or be carried out in such a way, as to be evidence of a belief that this pr

rendered obligatory by the existence of a rule of law requiring it. The need for 

belief, i.e., the existence of a subjective element, is implicit in the very notion 

opinio iuris sive necessitatis. The States concerned must therefore feel that t

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. 

Continental Shelf (Libya v. Tunis.), 1985 I.C.J. 13, 36 (June 3). For an excellent sum

nature and sources of customary international humanitarian law, see Jean-Marie 

Study on Customary International Humanitarian Law: A Contribution to the Unders

Respect for the Rule of Law in Armed Conflict, 87 INTERNATIONAL REVIEW OF THE RED 

(2005). On customary international law generally, see Yoram Dinstein, The Interp

Customary International Law and Treaties, 322 RECUEIL DES COURS 246 (2006).

102. On the law relevant to precision attacks, see Michael N. Schmitt, Precision At

ternational Humanitarian Law, 87 INTERNATIONAL REVIEW OF THE RED CROSS 445 

103. On lawfare, see Charles Dunlap Jr., Law and Military Interventions: Preserv

Values in 21st Century Conflicts (Working Paper, Harvard Kennedy School, Carr 

Human Rights Policy, 2001), available at http://www.hks.harvard.edu/cchrp/pr

nshr_publications.php (follow “Working Papers Volume 1 Part 1” hyperlink). In 

stance, insurgents quickly learned that coalition forces employ counter-battery fire ag

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ypy 

ing civilians (often with little likelihood of hitting coalition forces), hoping the c

sponse would cause civilian deaths and injuries that would generate negative 

international reaction. Author interviews with senior US Marine Corps and Army o

2008). Hezbollah employed the same tactics in Lebanon in 2006, firing Katyusha r

populated areas in the hope of baiting the Israelis into a response. See Israel Ministr

Affairs, Hizbullah’s Exploitation of Lebanese Population Centers and Civilians: P

Evidence (2006), http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2006/Operat

+of+Direction+Video+Clips.htm.

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PART IV

DETENTION OPERATIONS

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XII

The Law of Armed Conflict and Deten

Operations in Afghanistan

Matthew C. Waxman*

In reflecting on the arc of US and coalition detention operations in Af

three key issues related to the law of armed conflict stand out: one su

one procedural and one policy. The substantive matter—what are the 

baseline treatment standards required as a matter of international law?—

fied significantly during the course of operations there, largely as a resul

Supreme Court’s holding in Hamdan v. Rumsfeld.

1 The procedural mat

adjudicative processes does international law require for determining w

detained?—eludes consensus and has become more controversial the 

Afghan conflict has continued. And the policy matter—in waging cou

gency warfare, how do foreign military forces transition military detent

tions to effective civilian institutions?—has emerged as a critical strateg

for which the law of armed conflict provides little instructive guidance.

President Barack Obama’s determination to close Guantanamo whi

ing US military commitments in Afghanistan will draw new public at

these questions. After briefly explaining the basis of US and coalition det

erations, this article addresses each of these issues in turn. Viewing them 

343

* Associate Professor of Law, Columbia Law School; Adjunct Senior Fellow, Counci

Relations; Member, Hoover Institution Task Force on National Security and Law.

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it concludes with some general observations about the convergence o

strategy.

US and Coalition Detention Operations in Operation Enduring Fr

In late 2001, the United States launched operations in Afghanistan, and a

mediately began capturing and holding suspected enemy fighters. The U

thority for detention operations in Afghanistan began from the proposi

[t]he United States and its coalition partners are engaged in a war against al-Q

Taliban, and their affiliates and supporters. There is no question that under th

armed conflict, the United States has the authority to detain persons who have 

in unlawful belligerence until the cessation of hostilities. Like other wars, wh

start we do not know when they will end. Still, we may detain combatants unti

of the war.2

Although many US allies participated in military operations, US force

lead in conducting detention operations in Afghanistan,3 eventually con

theater detention operations at Bagram air force base facilities.

As explained by a commander of US detention forces in Operation 

Freedom (OEF), “[d]uring the execution of this campaign, the U.S. Arm

and allied forces have captured or procured the surrender of thousands 

uals believed to be members or supporters of either al Qaeda or the 

Detentions were intended to

[prevent] them from returning to the battlefield and engaging in further arme

against innocent civilians and U.S. and coalition forces. Detention also ser

deterrent against future attacks by denying the enemy the fighters needed to 

war. Interrogations during detention enable the United States to gather im

intelligence to prevent future attacks.5

Nearly eight years after the initial invasion, US detention operations go on, 

military is modernizing its facilities in the expectation of their further cont

In some respects US and coalition detention operations in Afghan

valuable case study for examining contemporary application of the law 

conflict. Aside from the thousands of individual detentions, the “dat

publicly released and declassified documents of internal US governmen

policy decision-making, as well as litigation that has pushed the US gove

clarify its legal positions and has produced judicial interpretations of 

armed conflict.

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In other respects, however, it is difficult to examine the law of armed 

the Afghanistan setting because of some peculiar aspects of detention o

there. First, most US allies participating in coalition operations in A

have done so not as part of anti-Taliban and anti-al Qaida combat opera

eration Enduring Freedom) but as part of the International Security 

Force (ISAF). The latter, which assists the Afghan government in main

curity in certain parts of the country, is authorized by a series of Chapt

Security Council resolutions that authorize participating contingents t

necessary measures to fulfil its mandate.”7 Participating military forces 

derive authority to detain certain captured militants from this UN Secu

cil mandate independent of the law of armed conflict. Second, US allies p

ing in both OEF and ISAF have almost entirely “opted out” of 

operations. In 2005, NATO adopted guidelines, which the European pa

low, calling for transferring detainees to the Afghan government within 

hours of capture.8 As explained further below, this has meant that US 

form the only significant body of State practice in Afghanistan to measu

or help interpret the law of armed conflict related to detention.

Detention Treatment Standards

In the early phases of military operations in Afghanistan, but especiall

Abu Ghraib crisis in Iraq, followed by exposure of detainee abuses in A

and Guantanamo, the most intense public controversy focused on th

treatment standards. Much of this debate centered on the appropriate 

tion of captured Taliban and al Qaida fighters, because most protagon

debate believed that the appropriate treatment baseline turned in part on 

individuals’ legal statuses.9

Shortly before conventional combat operations began, US military c

ers in charge of Afghanistan operations issued an order instructing that t

Conventions were to be applied to all captured individuals. Belligerents 

screened according to standard doctrine to determine whether or not the

titled to prisoner of war status.10 This was consistent with existing milita

tions and recent US military practice.

On February 7, 2002, however, the President determined that Talib

Qaida detainees were “unlawful combatants,”11 and therefore protected 

the custodial standards of the Third Geneva Convention applicable to p

war nor Common Article 3 of the Geneva Conventions.12 Prison

protections did not cover al Qaida detainees because al Qaida was not a “H

tracting Party” to the Conventions, and they did not cover Taliban bec

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forces failed the tests of Article 4 of the Third Convention, which stipulat

ments for legitimate military forces.13 Common Article 3 did not apply, 

terms, because this was believed to be an international armed conflict, whe

mon Article 3 rules apply in conflicts “not of an international character.”

The President further directed in his February 2002 instructions, how

“[a]s a matter of policy, the United States Armed Forces shall continue t

tainees humanely and, to the extent appropriate and consistent with m

cessity, in a manner consistent with the principles of Geneva.”15 While 

protective, this directive also opened holes in the law of armed conflict

First, it applied by its terms only to armed forces, hinting that intelligen

might not be similarly constrained. Second, by emphasizing humane tre

a matter of policy, it suggested that humane treatment was not required a

of law. And, third, it suggested that the Geneva Conventions’ principles 

idly be compromised in pursuit of security requirements.

Well known is the storm of criticism that erupted over the initial U

ment position that the Geneva Conventions—and, presumably, custom

armed conflict—provided no legal guarantee of minimum treatment sta

enemy combatants captured in OEF. Many critics have attributed detai

in Afghanistan to these foundational legal decisions. Critics of the US pos

sistently rejected the notion that unlawful combatants fall into a “legal ga

tection. They asserted a range of alternatives, including that captured f

least Taliban) were entitled to prisoner of war status; that all captured f

entitled at least to minimum protections of Common Article 3, Article 

first Additional Protocol to the Geneva Conventions,16 and the custom

armed conflict; and/or that any detainees are protected by internation

rights law, including prohibitions on “cruel, inhuman and degrading” tre

In June 2006 the US Supreme Court resolved much of this debate, a

matter of international law incorporated into US law. It held in H

Rumsfeld, a petition brought by a Yemeni detained during OEF and tran

Guantanamo, that Common Article 3 affords minimal protections to i

captured within the territory of a signatory but engaged in a conflict no

two nations. This would include not only civil wars (as Common Article 

traditionally understood) but also conflicts with transnational acto

Qaida.18 Soon after, on July 7, 2006, the Deputy Secretary of Defense dir

“all DoD personnel adhere to [Common Article 3] standards” and tha

partment component “review all relevant directives, regulations, poli

tices, and procedures . . . to ensure that they comply with [them].”19

Hamdan’s holding that Common Article 3’s minimum treatment 

apply to enemy combatants captured in Afghanistan significantly nar

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scope of controversy over international legal constraints on US detenti

tions. Common Article 3 demands that detainees “in all circumstances 

humanely,” and it prohibits, among other things, “cruel treatment and t

well as “outrages upon personal dignity, in particular, humiliating and 

treatment.”20 Although vague, these provisions contain basic care and c

quirements that match closely the basic treatment standards of human 

that some critics argued applied. While not matching the enhanced prot

forded prisoners of war, this holding nevertheless answered the criticism 

critics who argued that the Geneva Conventions contain no “gaps” in th

age of individuals detained in armed conflict. Perhaps most important, 

ing clarified that these minimum treatment standards apply as a matte

law of armed conflict, not merely policy.

Detention Adjudicatory Process

The Hamdan holding helped clarify the minimal treatment standards ap

OEF detention operations in Afghanistan, but the sparse terms of Commo

do little to clarify the separate issue of what minimum procedural req

govern decisions to detain or continue to detain individuals in Afghanista

dural mechanisms for reviewing detention decisions in Afghanistan hav

remarkably little public scrutiny compared with those at Guantanamo, ev

in many respects—at least as initially characterized by the US governmen

tainees in both are similarly situated. Thus far the war in Afghanistan do

highlight the difficult issue of procedural safeguards in the law of arm

than it does to answer it.

In the early phases of OEF operations in Afghanistan, much of the le

about procedural detention issues focused on Article 5 of the Third Ge

vention, the Prisoner of War Convention. It provides that “[s]hould 

arise as to whether persons, having committed a belligerent act and ha

into the hands of the enemy,” qualify as prisoners of war, “such persons 

the protection of the present Convention until such time as their statu

determined by a competent tribunal.”22 Then, as now, however, little Sta

or detailed authoritative commentary existed interpreting these terms. U

regulations previously called for a three-officer panel that would take 

from reasonably available witnesses, including the detainee, and make ju

And US military forces were preparing to conduct such tribunals for i

captured in Afghanistan until they were directed otherwise, eventually by 

dent’s February 7, 2002 legal determinations which rendered any captur

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and al Qaida fighters 

unlawful combatantsas a matter of law; hence 

not “any doubt” as to their status for Article 5 tribunals to adjudicate.24

Many critics contested this claim, arguing that Article 5 requires ca

determinations; that group designations of this sort are impermissible

have argued that this provision means that when there is doubt whether 

individual is even an enemy fighter or not, he is entitled to a hearing befo

nal; therefore, the argument goes, suspected al Qaida and Taliban com

US custody should have been entitled upon capture to such review.26 

language begins with the notion that a subject detainee has “committed 

ent act,” suggesting that the drafters intended to mandate minimum p

for resolving factual doubt as to a subject’s type of combatant or belligere

the prior question whether he is or is not a combatant. But in practice a

to adjudicate an individual’s type of combatancy, and hence the Gene

tions to which he is entitled, would likely uncover some cases of mistake

or otherwise erroneous detentions.27

Regardless of its precise meaning, it is quite clear that Article 5 was dr

very different circumstances in mind from those of the Afghanistan c

particular, it was intended for a conflict pitting professional armies and 

duration.28 A relatively simple front-end adjudicatory review was sufficie

conflicts because sorting combatants from noncombatants (for detention 

was relatively easy and conflicts would likely end within a few month

whereupon any remaining captives would be released. Afghanistan, by 

involves a set of conflicts already lasting almost eight years and likely to 

many more, and an enemy force (especially al Qaida forces, but als

Taliban) that routinely obscures its identity among civilian populations

In contexts such as this, the more important issue than appropriate 

status screening is to what form of review (and perhaps adversarial proce

tainees entitled to contest the factual basis of their detention, given the 

high probability and cost of errors. Three main positions have emerge

there are many sub-positions within each.

The US government has generally taken the position that the law of a

flict is the exclusive body of international law dictating procedural cons

detention of captured fighters in Afghanistan. This position assumes the 

existence of armed conflict (in the US view, it remains an international a

flict, though Hamdan at least adds new questions to this view), and that 

armed conflict operates as lex specialis, displacing otherwise applic

norms.30 Beyond consistently arguing against the reach of judicial hab

protections to Afghanistan,31 however, the US government has not artic

clear procedural mandates imposed by the law of armed conflict for s

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who is or is not a combatant. Instead it has sought to maintain flexibility

procedural protections as a matter of policy.

Some human rights organizations have argued that, especially since 

lishment of the new Afghan government following the 2002 Loya Jirga

tional human rights law, not the law of armed conflict, governs p

protections, along with Afghan domestic law.32 This view generally ass

the war in Afghanistan evolved at that time from an international armed 

an internal armed conflict and that the law of armed conflict provide

pendent authorization for detention in the latter category. Holders of 

look to, among other sources, the International Covenant on Civil an

Rights, which states:

No one shall be deprived of his liberty except on such grounds and in accorda

such procedure as are established by law. . . . Anyone who is deprived of his li

arrest or detention shall be entitled to take proceedings before a court, in order 

court may decide without delay on the lawfulness of his detention and order h

if the detention is not lawful.33

Under the strictest form of this view, any long-term detention of suspect

or al Qaida fighters in Afghanistan requires criminal trial with universally 

due process safeguards—a standard that leaves US practice in Afghanis

far short.34

A third view holds that neither the law of armed conflict nor human ri

law provides sufficiently clear or comprehensive procedural safeguards 

detained for security reasons. The International Committee of the R

(ICRC) has developed a set of principles and safeguards that it argues sh

ern security detention in all circumstances, i.e., both in armed conflicts a

of them. The guidelines are based on law of armed conflict and human ri

rules, as well as on non-binding standards and best practice, and are to 

preted on a case-by-case basis. According to the ICRC guidelines, det

entitled—among other things—to challenge the lawfulness of their dete

to have an independent and impartial body decide on continued deten

lease.35 The ICRC considers that Afghanistan is a situation of non-int

armed conflict: it would argue that detainees in US or other internati

hands should enjoy far more robust procedural rights than currently aff

that detainees in Afghan custody should be granted judicial review.36

Experience in Afghanistan offers intuitive support for the third app

it does little to resolve the difficult issue of exactly which internation

rights law provisions should apply. The fact that the nature of fightin

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against an enemy that deliberately obscures its identity and moves in a

local communities—creates a high likelihood of some erroneous, 

detentions supports the call for thorough screening procedures.37 Bu

conditions, resource constraints and the weak state of Afghan justice w

plicate efforts to establish formal judicial mechanisms by either coalit

Afghan governments.38

Meanwhile, the US Supreme Court recently held in Boumediene v. Bu

emy combatants at Guantanamo are entitled to constitutional habe

rights.39 The issue of Boumediene’s reach beyond Guantanamo, especi

ghanistan, will be litigated for some time, and that case turned on inte

and application of US domestic law. In any event, the Supreme Court di

ify exactly what procedural structures and protections apply even in ha

for Guantanamo detainees, and the Court seemed to have Afghanista

when it cautiously suggested that practical considerations and exigencies 

combat zones might limit the reach of constitutional habeas rights to en

batant detainees held outside Guantanamo.40

Legal requirements aside, US forces have gradually instituted more f

procedural mechanisms for adjudicating detention decisions as time ha

The little detail on review processes in Afghanistan shared openly by th

ernment appears mostly in court filings in habeas corpus actions b

Bagram detainees. These public documents explain that by 2006 all i

brought to theater detention facilities for long-term confinement have 

reviewed by a five-officer panel, sitting as an Enemy Combatant Revi

usually within seventy-five days of capture and thereafter every six mont

view board may recommend by a majority vote to the commanding gen

designee whether the individual should continue to be detained.41Althou

government maintains that the Fourth Geneva Convention is inappl

matter of law to Afghanistan detainees because that Convention appli

ians, not combatants, the processes US forces eventually put in place rou

the requirements of Article 78, which calls for, among other things, re

cesses and periodic review (at least every six months) for security intern

So far, the Afghanistan case has produced little legal consensus on 

procedural requirements in part because the spectrum of views span

judgments on such basic questions as what type of conflict exists (int

versus internal), what body of law applies (law of armed conflict vers

rights law versus domestic Afghan law, or some combination) and wh

minimum requirements those bodies of law impose (mandatory provisi

a sliding scale depending on practicability). Meanwhile, US forces have a

creasingly robust processes for adjudicating cases, suggesting at lea

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though still far from complete

convergence between the aspirations of 

legal views and the pragmatic and ethical inclinations of those charged w

the conflict.

Transitioning Detention Operations to Local Civilian Instituti

A final issue to consider is the transition from a military detention to 

justice system in Afghanistan. Unlike the substantive and procedural 

cussed above, this is not a law of armed conflict issue in a strict sense (

Geneva Convention rules governing repatriation). But it is entwined with 

legal issues, and the strategic necessity of resolving it effectively may imp

ture development of the law of armed conflict.

The law of armed conflict is generally designed to minimize unnecess

ing in wartime and to facilitate a return to peace and public order. In the 

conventional warfare, the law of armed conflict’s detention authorities 

generally serve well these goals: until order is restored through victory 

ment of the conflict they allow—with sparse procedural requirements 

to peacetime justice systems—the incapacitation of captured indivi

sumed (or assessed) likely to fight again ifreleased and they protect those 

als from mistreatment. For the most part, the rules align with the la

objectives, including the strategic necessities of detention during comb

US detention operations have taken place in Afghanistan amid a mor

strategic environment. Operations have evolved to include a major cou

gency component against Taliban and al Qaeda forces conducting gue

and terrorist operations aimed to undermine the new Afghan govern

course, the role and rules of detention in counterinsurgency conflicts ar

problems or unique problems. One aspect that distinguishes the Afghan

however, is the weakness or nascent condition of State institutions, inc

and order systems, which needed to be almost completely reconstituted a

tion and Afghan forces overthrew the Taliban in 2001. Indeed, the c

weakness of governance in many parts of the country and the inability o

to provide basic State services like policing and criminal justice create an 

ment hospitable to insurgent forces.43 Moreover, the Afghan governmen

fective institutions of governance, including a police and justice sector 

maintaining order. This is not just a counterinsurgency campaign to sav

government; it is a counterinsurgency campaign while building a new go

in a region long accustomed to internal strife and warlordism.

Amid this setting, a 2004 Pentagon inspection and assessment of US 

operations in Afghanistan concluded that “US detainee operations ca

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normalized by the emergence of an Afghan justice and corrections syste

assume the responsibility for the long-term detention of low level enem

ants currently held by the US.”44 The report continued:

The value of continuing to keep low-level enemy combatants in custody is s

keep individuals that represent a proven threat to coalition forces off the ba

This is a function that can and should be undertaken by the Afghan governm

Despite efforts to improve the process, the press of a growing detainee po

without an Afghan solution or continued transfer to [Guantanamo] will con

create the potential for bad choices to be made at several points in that proce

In 2005 the governments of the United States and Afghanista

diplomatic agreements to “allow for the gradual transfer of Afghan detai

exclusive custody and control of the Afghan Government.”46 But this gra

sition has been slowed since then by the shakiness of Afghan security in

and inability to install domestic legal authorities and processes capable o

or prosecuting captured militants.47

These factors raise several policy questions onto which the law of arm

no longer maps so neatly: Does the long-term reliance on foreign milit

tion strengthen versus deplete or build versus undermine public confide

mestic civilian justice institutions? As coalition forces turn over more 

security and governance functions to Afghan authorities, how should re

ity for detaining militants, including those already in custody, be tr

Many features of this conflict are unique to Afghanistan, but these basic 

resemble those faced in Iraq and could likely recur in other areas where g

collapses, such as Somalia.

One lesson that the US military appears to have drawn in Afghanistan

in Iraq, is the strategic imperative of high substantive and procedural st

detainee treatment, especially when seeking to bolster rule-of-law inst

The new Army and Marine Corps Counterinsurgency Field Manual emph

principle, not only for legal and ethical reasons, but also for military effec

After noting, for example, that the “nature of [counterinsurgency] o

sometimes makes it difficult to separate potential detainees from inn

standers, since insurgents lack distinctive uniforms and deliberately m

the local populace,”50 the manual goes on to warn that “treating a civil

insurgent is a sure recipe for failure.”51 It continues:

[Counterinsurgency] operations strive to restore order, the rule of law, a

procedures to the authority of the [host nation] government. . . . Multinatio

U.S. forces brought in to support this objective must remember that the popu

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py 

with this avowed purpose. Inconsistent actions furnish insurgents with valuab

for manipulation and propaganda.52

Although the law of armed conflict has little to say directly on the issue o

ring detention responsibilities from military to civilian systems, the s

and procedural legal issues described earlier affect this transition process 

adherence to their standards helps lay a foundation of support and legitim

which local rule of law can be built.

Conclusion

The operational and strategic significance of detention standards imp

conclusions about the future development and refinement of the law 

conflict, returning the discussion to the legal controversies discussed ea

substantive treatment standards, the strategic rationale is likely to 

strongly the idea of universally applicable minimum requirements, des

efforts by the Bush administration to reserve greater flexibility. As to proc

quirements, in thinking about the future trajectory of the law of armed c

the application of human rights law in armed conflict), the more that r

promotion features as a strategic objective, the more robust procedural p

for detainees will align with military necessity, rather than collide with 

Notes

1. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

2. UN Committee against Torture, Consideration of Reports Submitted by S

under Article 19 of the Convention, Second Periodic Reports of States Parties Due i

dendum (United States of America) Annex 1, at 47, U.N. Doc. CAT/C/48/Add.3 (M

available at http://www.state.gov/g/drl/rls/45738.htm#part_one; see also Hamdi v

542 U.S. 507, 518–21 (2004) (recognizing the executive branch’s authority to detain e

batants—at least those captured in the course of operations in Afghanistan—pur

congressional “Authorization for Use of Military Force” against those responsible 

tember 11 attacks).

3. As well as transferring several hundred detainees from Afghanistan to G

though I do not discuss those legal issues here.

4. Declaration of Colonel Rose M. Miller ¶ 8, Ruzatullah v. Rumsfeld, No. 06

(GK) (D.D.C. Nov. 20, 2006).

5. Id.

6. Eric Schmitt & Tim Golden, U.S. Planning Big New Prison in Afghanistan, 

TIMES, May 17, 2008, at A01.

7. See S.C. Res. 1707, ¶ 2, U.N. Doc. S/RES/1707 (Sept. 12, 2006); S.C. Res. 138

Doc. S/RES/1386 (Dec. 20, 2001).

353

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y g f

TIONS (Michael D. Carsten ed., 2008) (Vol. 84, US Naval War College Intern

Studies).

9. See Adam Roberts, The Prisoner Question: If the U.S. Has Acted Lawfully, Wha

About?, WASHINGTON POST, Feb. 3, 2002, at B1.

10. See JAMES R. SCHLESINGER ET AL., FINAL REPORT OF THE INDEPENDENT 

REVIEW DOD DETENTION OPERATIONS 80 (2004), available at http://news.findla

docs/dod/abughraibrpt.pdf.

11. See Memorandum from George Bush to Vice President et al., Humane Trea

Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE PAPERS: TH

ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005), availabl

www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf [hereinafter 

Memo].

12. Article 3 is referred to as “Common” because it is found identically in each 

Geneva Conventions. See Convention for the Amelioration of the Condition of th

and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T

vention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 

Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention 

the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 13

ter Geneva III]; and Convention Relative to the Protection of Civilian Persons in T

art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S 287 [hereinafter Geneva IV]; allreprin

UMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) 

244 and 301, respectively. Article 3 applies to all cases “. . . of armed conflict not of 

tional character occurring in the territory of one of the High Contacting Parties . . 

13. See President’s Memo, supra note 11. For a contrary view, see Memorandum 

liam H. Taft IV, Legal Adviser, Department of State, to Counsel to the President, Co

Your Paper on the Geneva Conventions (Feb. 2, 2002),reprinted in TORTURE PAPERS

11, at 129, available at http://www.nytimes.com/packages/html/politics/20040608_

14. See President’s Memo, supra note 11.

15. Id.

16. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts art. 4, June 8, 1977, 1125 U.

printed in DOCUMENTS ON THE LAWS OF WAR, supra note 12, at 422.

17. See John B. Bellinger, US State Department Legal Advisor, Oxford 

Programme Lecture on the Changing Character of War (Dec. 10, 2007).

18. Hamdan v. Rumsfeld, 548 U.S. 557, 629–31 (2006).

19. Memorandum from Gordon England, Deputy Secretary of Defense, to the S

the Military Departments et al., Application of Common Article 3 of the Geneva Con

the Treatment of Detainees in the Department of Defense (July 7, 2006), http://www.

.mil/home/dodupdate/For-the-record/documents/20060711.html.

20. Supra note 12.

21. Some of the sparse State practice on this issue, for example, US practice duri

nam War and procedures employed by Canadian and British militaries, is describe

Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Milita

Models, 60 STANFORD LAW REVIEW 1079, 1090–92 (2008).

22. Geneva III, supra note 12, art 5.

23. See Headquarters, Departments of the Army, the Navy, the Air Force and 

Corps, Army Regulation 190-8/OPNAVINST 3461.6/AFJI 31-304/MCO 346

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(1997), available at http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf.

24. See Katharine Q. Seelye, Detainees Are Not P.O.W.’s, Cheney and Rumsfeld D

YORK TIMES, Jan. 28, 2002, at A6.

25. See Michael Ratner, Letter to the Editor, When Are Captives Prisoners of 

YORK TIMES, Jan. 16, 2002, at A18.

26. See, e.g., W. Michael Reisman, Rasul v. Bush: A Failure to Apply Internati

JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 973 (2004).

27. In the 1991 Persian Gulf War, the US military conducted about twelve hu

hearings for captured Iraqi individuals thought to be pro-Saddam fighters, and found 

hundred of them to be displaced civilians, who were promptly released. See Depart

fense, Conduct of the Persian Gulf War Final Report to Congress 578 (2002).

28. COMMENTARY ON GENEVA CONVENTION III RELATIVE TO THE TREATME

ONERS OF WAR (Jean S. Pictet ed., 1960) [hereinafter ICRC COMMENTARY].

29. See Matthew C. Waxman, Detention as Targeting: Standards of Certainty and 

Suspected Terrorists, 108 COLUMBIA LAW REVIEW 1365 (2008).

30. See John B. Bellinger, US State Department Legal Advisor, Remarks to the 

Against Torture (May 5, 2006), available at http://www.state.gov/g/drl/rls/68557.htm

supra note 17.

31. See, e.g., Government’s Motion to Dismiss, Al Maqaleh v. Gates, No. 06

(JDB) (D.D.C. March 5, 2007); Government’s Response to Order to Show Cause an

Dismiss for Lack of Jurisdiction, Ruzatullah v. Rumsfeld, No. 06-CV-01707 (GK) (D

20, 2006).

32. See Human Rights First, Arbitrary Justice: Trials of Bagram and Guantanamo 

Afghanistan (Apr. 2008), available at http://www.humanrightsfirst.info/pdf/USL

-arbitrary-justice-report.pdf; Tim Golden & David Rohde, Afghans Hold Secret Tr

That U.S. Detained, NEW YORK TIMES, Apr. 10, 2008, at A6 (citing criticisms from h

organizations).

33. International Covenant on Civil and Political Rights art. 9, Dec. 16, 1966, 9

171.

34. See, e.g., US Detentions in Afghanistan: An Aide-Mémoire for Continued Actio

International), June 7, 2005, available at http://www.amnesty.org/en/library/asset/A

2005/en/dom-AMR510932005en.pdf (“When [the] armed conflict ended [in 2002

were captured by the USA during hostilities . . . were required to be released, unless c

criminal offences. Civilians detained in that conflict . . . too were required, when 

ended, to be released, unless charged with recognized criminal offences.”)

35. SeeICRC, International Humanitarian Law and the Challenges of Contempo

Conflicts, Official Working Document of the 30th International Conference of th

and Red Crescent, Geneva, Nov. 2007, annex 1; Jelena Pejic, Procedural Principles an

for Internment/Administrative Detention in Armed Conflict and Other Situations of 

INTERNATIONAL REVIEW OF THE RED CROSS 375 (2005).

36. See ICRC, US Detention Related to the Events of 11 September 2001 and Its 

The Role of the ICRC, July 30, 2008, available at http://icrc.org/web/eng/siteeng0

usa-detention-update-121205?opendocument.

37. See Waxman, supra note 29, at 1402–29.

38. How much these efforts would be complicated is the source of significan

tween the US government and human rights organizations.

39. 128 S. Ct. 2229 (2008).

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41. See Declaration of Colonel James W. Gray ¶¶ 11–13, Al Maqaleh v. Gates, 

01669 (JDB) (D.D.C. March 3, 2007) (discussing review process for detainees in A

Declaration of Colonel Rose M. Miller ¶¶ 10–12, Ruzatullah v. Rumsfeld, No. 06

(GK) (D.D.C. Nov. 19, 2006) (discussing detention procedures and review proces

combatants detained in Afghanistan).

42. See Geneva IV, supra note 12, art. 78.

43. See Seth G. Jones, The Rise of Afghanistan’s Insurgency, 32 INTERNATIONAL 

(2008).

44. Combined Forces Command–Afghanistan Area of Operations, Detainee 

Report of Inspection, June 26, 2004, at 20.

45. Id.

46. Press Release, US Embassy, Kabul, Afghanistan, Detainee Transfers to Afgha

4, 2005), available at http://kabul.usembassy.gov/pr080405.html.

47. See Human Rights First, supra note 32; Schmitt & Golden, supra note 6.

48. See Carlotta Gall, U.S.-Afghan Foray Reveals Friction on Antirebel Raids, 

TIMES, July 3, 2006, at A9; Alissa Rubin, U.S. Remakes Jails in Iraq, but Gains Are a

YORK TIMES, June 2, 2008, at A1.

49. Headquarters, Department of the Army & Headquarters, Marine Corps Com

opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency ¶¶ 7-38, 7-40 (20

50. Id., ¶ 7-38.

51. Id., ¶ 7-40.

52. Id., ¶ 8-42.

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XIII

US Detention of Taliban Fighters:

Some Legal Considerations

Stephane Ojeda*

During the last seven years detention activities by US forces invo

Afghanistan conflict1 have raised numerous questions from th

tive of international law, in particular international humanitarian law (I

article addresses some of them. The focus will be on identifying the app

throughout the various stages of the hostilities (Part I) and issues related to 

vation of liberty of Taliban fighters that entails its practical application (P

No issues pertaining to ius ad bellum, i.e., related to the lawfulness of 

force, are discussed in this article. Given that there is often some confusio

relationship between the ius ad bellum and IHL (ius in bello), it must b

that IHL applies equally to all parties to an armed conflict, and that th

pendent of whether the use of force has been lawful or not under the ius a

IHL only applies in situations of armed conflict. Treaty law has traditi

tinguished between international armed conflicts and non-internatio

conflicts, the former being regulated in far more detail than the latter as c

in the core IHL treaties, the 1949 Geneva Conventions5 and their two 1

tional Protocols.6 The last years have, however, seen a growing tendency 

* Legal Adviser to the Operations at the Legal Division of the International Comm

Red Cross (ICRC) in Geneva. The article reflects the views of the author alo

necessarily those of the ICRC.

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international and non

international armed conflicts in the same way in 

and customary international law has developed in a way as to largely 

same rules in both types of conflicts.7 However, there are still important d

between the two situations concerning the applicable law. To give two 

the concept of combatant status, which entails, inter alia, the privilege of 

from criminal prosecution for lawful acts of war, and prisoner of war (PO

only exist in international armed conflicts.

Following the terrorist acts of September 11, 2001 (9/11), President 

clared that the United States was at “war against terrorism.”8 On Octo

United States led a military campaign against the de facto government o

stan—the Taliban—accused of harboring the al-Qaeda group, which w

sponsible for 9/11. Since the commencement of this military campaign, t

States has detained thousands of people. Some suspected Taliban and 

members, as well as other individuals suspected of supporting them or o

sociated with them, were transferred beginning in January 2002 to the U

ment facilities at Guantanamo Bay, Cuba. Between 2002 and 2005, t

States brought about eight hundred individuals to Guantanamo. For va

sons those transfers almost completely ceased by the end of 2004. Since 

the great majority of persons captured have been held in Afghanistan, ma

Bagram Theatre Internment Facility;9 the United States has brought o

twenty individuals to Guantanamo.10

At the time this is written, about 240 persons are held at Guantanam

about 600 at Bagram. The closure of Guantanamo is due to take place no 

January 22, 2010,11 while the building of a new Bagram facility in Afghan

a greater detention capacity has been reported in the media.12

I. The Law Applicable to the Situation in Afghanistan

In order to determine the applicable law and standards governing any m

tivity, such as deprivation of liberty, a legal determination of the situatio

at the time the persons were captured is necessary. From October 7, 20

two phases in the Afghanistan situation can clearly be identified: a firs

which the US-led coalition forces fought against the Afghan authorities 

State armed groups, followed by a phase in which the US and other fore

assisted the Afghan authorities in fighting non-State armed groups.13

A. The Situation from October 7, 2001 to June 18, 2002

Even though only recognized by a few States14 as the legitimate authori

ghanistan, the Taliban were controlling and ruling over about 95 perc

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Afghan territory in October 2001. Afghanistan clearly had a functionin

government and its armed wing was the country’s regular armed fo

airstrikes by the US-led coalition that started on October 7, 2001 thus cl

stituted an international armed conflict between the coalition S

Afghanistan.

An international armed conflict is generally defined as “any differen

between two States and leading to intervention of members of the armed 

or, as the International Criminal Tribunal for the former Yugoslavia has 

situation where “there is a resort to armed force between States.”16

The four Geneva Conventions of 1949 were thus applicable, but not A

Protocol I (AP I) to which neither the United States nor Afghanistan w

party. While the Geneva Conventions focus almost entirely on the pro

persons in the hands of the enemy, AP I contains detailed rules on the c

hostilities, including air-to-ground operations. Consequently, the airstri

were the predominant feature at the beginning of the military operation

sentially subject to the rules of customary international law. However, t

of customary international law now correspond largely to those of AP I

clude the principle of distinction and the fundamental rules derived from i

• the prohibition of direct attacks on civilians or civilian objects;

• the prohibition of indiscriminate attacks, including those tha

expected to cause excessive incidental civilian casualties or damages (p

proportionality);

• the prohibition on attacking objects indispensable for the surv

civilian population;

• the prohibition on attacking cultural property;

• the obligation to take precautions in attacks;

• the obligation to take precautions against attacks; and

• the prohibition on the use of human shields.17

In addition, the rules contained in the 1907 Hague Regulations,18 whic

sidered as reflecting customary international law,19 have also been of pr

portance to the international armed conflict in Afghanistan.

B. The Situation from June 19, 2002 to Date

The fall of the Taliban did not necessarily mean the cessation of active a

tilities. There are certainly still active armed hostilities in Afghanistan; ho

nature of the armed conflict has changed.

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Following the convening of the Loya Jirga in Kabul in June 2002, 

transitional government was established on June 19, 2002. It received u

recognition by the international community of States and could also cla

based recognition within Afghanistan through the Loya Jirga process. 

government of Afghanistan has been leading an armed struggle against 

gency (i.e., the remnants of the Taliban and other non-State armed grou

can be qualified as a non-international armed conflict. Indeed, the crite

used in IHL to define non-international armed conflicts seem to be met: 

ities have reached a minimum level of intensity, and non-governmental 

volved in the conflict can be considered as “parties to the conflict” 

possess organized armed forces, operate under a certain command stru

have the capacity to sustain military operations.20

This non-international armed conflict is “internationalized” by the 

tion of foreign forces, including those of the United States, but because 

eign forces are assisting the Afghan government, it still cannot be chara

an international armed conflict since it does not involve opposing State

Recent developments in the conduct of the hostilities, in particul

cross-border operations into Pakistan, might raise further questions ab

gal qualification of the nature of the situation, i.e., is there an internatio

conflict between the United States and Pakistan? According to the in

available at the time of writing, it is the author’s opinion that those opera

resent a “spill-over” of the armed hostilities in the Afghan non-int

armed conflict into Pakistan and do not represent a separate armed con

Common Article 3 (CA3) of the four Geneva Conventions of 1949 an

ary IHL rules are thus applicable to this situation,21 but not Additional P

(AP II) to which neither the United States nor Afghanistan are State pa

II. Deprivation of Liberty of Taliban Fighters

The two phases in the Afghanistan conflict have direct consequences on 

given to the Taliban deprived of liberty and the legal standards governin

privation of liberty.

A. Taliban Captured before June 19, 2002

In an international armed conflict governed by the Geneva Convention

the one in Afghanistan between October 2001 and June 2002, there are 

categories of persons deprived of liberty: either they are captured comb

titled to POW status and protected by the Third Geneva Convention (G

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they are civilians interned or detained and protected by the Fourth Ge

vention (GC IV).23

Article 4, GC III identifies several groups of persons that, having falle

power of the enemy, are to be considered POWs. The first group of p

cludes members of the armed forces of a party to the conflict. As stat

given that the Taliban government was not recognized by a large part of 

national community, including the United States, members of the Talib

armed forces fell into the category of persons described in Article 4(A)(3) 

i.e., “members of regular armed forces who profess allegiance to a gove

an authority not recognized by the Detaining Power.” These “members 

armed forces” differ from those referred to in Article 4(A)(1) (“memb

armed forces of a Party to the conflict”) in one respect only: the authorit

they profess allegiance is not recognized by the adversary as a party to the 

As pointed out in the International Committee of the Red Cross (IC

mentary, the “regular armed forces”—be they of recognized or unrecog

ernments—are assumed to have all the material characteristics an

attributes of the armed forces falling within Article 4(A)(1), GC III: they 

forms, they have an organized hierarchy, and they know and respect th

customs of war.24 Therefore, the delegates to the 1949 Diplomatic C

thought that it was not necessary to expressly specify that such armed for

satisfy the requirements laid down in Article 4(A)(2)(a), (b), (c) and (d): 

ing commanded by a person responsible for his subordinates, that of hav

distinctive sign recognizable at a distance, that of carrying arms openly a

conducting operations in compliance with IHL.25 It was presumed that S

ular armed forces complied with these requirements.26

While it recognized the application of GC III in the conduct of armed 

against the Taliban, the US administration reached the conclusion, as se

2002 White House memorandum, that the Taliban collectively were not 

POW status because they were not fulfilling the necessary criteria under A

GC III.27 This collective denial of POW status for the adversary arme

highly problematic. The main reasons invoked were that the Taliban d

tinguish themselves from the general population and did not obey the 

customs of war.28

It is highly unlikely that none of the Taliban fighters complied with 

quirements. This is particularly evident with regard to the obligation to d

oneself during an attack. Indeed, it has been argued that the Taliban fig

clearly distinguishable from the civilian population because they wore 

bans and had scarves indicating to which force they belonged.29 Thus, th

ment to distinguish oneself could not be assessed in a generalized manne

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to be decided for each captured person. According to Article 5, GC III,

tent tribunal” is to decide in each individual case whether a person was i

tinguishing her/himself. An individualized factual assessment was also 

for the other requirements. Given that there was debate about whether 

ditions were fulfilled, there was reason for doubt and thus a competent t

and not the executive authorities in Washington—should have made a 

the facts and ruled on whether the person in question was or was not a P

competent tribunal could have been either civilian or military.31 Until th

has given its ruling, the person deprived of his or her liberty must be t

POW.

Because of the position enunciated in the 2002 White House mem

competent tribunals were never established in Afghanistan. But in res

US Supreme Court decision in June 2004, according to which US cour

risdiction to hear legal challenges on behalf of persons detained at Guan

the US Department of Defense (DoD) established administrative heari

Combatant Status Review Tribunals (CSRTs).33 The purpose of the C

review whether each person meets the criteria to be designated as an en

batant and to allow those persons to contest such designation.34 US a

have stated that CSRT procedures provide a process similar to that of a c

tribunal under Article 5, GC III.35 In this regard, it must be argued that 

and Article 5 hearings serve different purposes and operate under dif

cumstances. Article 5 hearings are meant to take place on or near the zon

bat, immediately after capture, thereby maximizing availability of witn

evidence. They are designed to swiftly determine a detainee’s legal statu

or she is entitled to POW status. In contrast, CSRTs started to operate in 

two and a half years after the arrival of the first detainees at Guantanam

ghanistan and thousands of miles from the combat zone. Moreover, C

only confirm the enemy combatant designation or conclude it was an e

do not have the authority or the option of declaring a detainee a lawful c

i.e., a POW.

What would be the main consequences if a Taliban fighter had rece

status after an Article 5 hearing? In those circumstances, he could lawfu

prived of liberty until the end of active hostilities of the international a

flict.36 He could not be prosecuted for his mere participation in hostilit

he had committed a war crime. If prosecuted for war crimes, the concer

should be sentenced by the same courts and according to the same proce

the case of members of the armed forces of the detaining power, i.e., by “c

tial” if prosecuted by the United States.37

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An Article 5 tribunal could also have decided that an individual was n

to POW status. In that scenario, the concerned Taliban fighter would th

tected by GC IV as a detainee or internee38 (if he fulfilled the criteria of n

found in Article 4, GC IV).39 A person protected by GC IV may be deta

the end of active hostilities unless released earlier because this person is 

no longer pose a security threat. He may be deprived of certain rights and 

while in detention (but must be humanely treated), and may be prosecu

mere fact of having taken up arms under the domestic law of the Unite

For the individuals who did not fulfill the criteria of GC III or GC IV 

from their respective protections, they would still benefit from the rules 

customary IHL as reflected in CA340 and Article 75, AP I,41 which lay do

mental guarantees. Thus, there is no category of persons affected by or i

international armed conflict that fall outside the scope of IHL protectio

B. Taliban Captured before June 19, 2002 and Still Held by the United 

Taliban captured during the period of the international armed conflict in 

stan and still in the power of the United States are not held in Afghanis

Guantanamo. With the end of the international armed conflict, GC III 

longer provide a valid legal basis for continuing to hold, without charg

captured before June 19, 2002. Because armed hostilities are ongoing in 

stan, it would not be realistic to require that every person held by the Un

in Guantanamo who is not facing a criminal proceeding be released; s

son might still constitute a security threat to the United States in the 

the ongoing non-international armed conflict in Afghanistan. The Un

could, therefore, continue to hold these persons for the same reason(s) t

rently interns persons in connection with the non-international armed 

Afghanistan (see Part C below). As GC III and IV no longer provide a leg

continuing to hold them, these persons should be placed within ano

framework to regulate their internment, including, in particular, a regu

pendent and impartial review of the reasons for their continued depr

liberty.42 In its June 2008 decision concerning those held at Guantanam

Supreme Court granted internees access to US civilian courts.43 This acc

allow the concerned individuals to benefit from judicial supervision o

fulness of their continued deprivation of liberty. Such judicial supervis

to be the most adequate means of ensuring a genuine independent and 

review process.

Those who are suspected of having committed war crimes or other cr

fenses can and should be prosecuted. Some have argued that the US fed

nal justice system has proven itself highly adequate and adaptable to the 

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of prosecuting complex terrorism cases, while the possible use of 

new

commissions on US soil has been reported in the media.44 But whateve

eventually used, those prosecuted must be afforded essential judicial guara

as the presumption of innocence, the right to be tried by an impartial and 

ent tribunal, the right to effective legal counsel and the exclusion of any ev

tained as a result of torture or other cruel, inhumane or degrading treatm

An appropriate approach would be to consider that these persons are 

tected by CA3, customary rules applicable to non-international armed co

relevant rules of human rights law since their deprivation of liberty is 

linked to the former international armed conflict but rather to the cur

international one. From an analytical perspective, these persons would 

as though they had been released at the end of the international armed co

simultaneously re-arrested at the beginning of the non-international con

the legitimacy and conditions of their continued detention reevaluated 

dance with this approach.

C. Taliban Captured after June 19, 2002 and Still Held by the United S

Combatant status, which entails the right to participate directly in host

POW status do not exist in non-international armed conflict, such as th

began on June 19, 2002 and is ongoing. Therefore, upon capture the T

not, as a matter of law, enjoy POW status and may be prosecuted by US a

under domestic law for any acts of violence committed during the confli

ing, of course, war crimes. In terms of IHL, their rights and treatment d

tention are governed by CA3 and customary rules applicable to non-int

armed conflicts.

Following the June 2006 Hamdan decision,45 the DoD issued a mem

requiring all DoD personnel to adhere to the standards of CA3 with reg

treatment of detainees and that all relevant directives, regulations, poli

tices and procedures be reviewed “no later than three weeks from the d

memorandum” in order to comply with the CA3 standards.46 In Januar

Secretary of Defense was tasked with undertaking a review of the con

confinement of those held at Guantanamo to ensure they meet humane 

notably those required by CA3.47

The vast majority of the Taliban captured after June 2002 are held in 

stan, but almost none of them have been charged with any crime. Ther

must be considered as internees. As for those interned in Guantanamo (

B above), a wide range of procedural principles and safeguards should 

mented by the US detaining authorities, including a regular independen

partial review of the reasons for their continued deprivation of liberty.

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One particular issue that needs to be tackled and clarified by US aut

the legal basis for their internment activities at Bagram for individuals d

US forces operating as part of Operation Enduring Freedom. Indeed, t

UN Security Council resolution (unlike in Iraq until December 31, 

agreement with the Afghan authorities and no US domestic legislation or 

order governing this type of deprivation of liberty.48

While internment is clearly a measure that can be taken in a non-int

armed conflict, as evidenced by the language of AP II, which mentions in

in Articles 5 and 6,49 CA3 contains no provisions regulating internment a

the requirement of humane treatment. Therefore, reliance on interna

man rights law as a complementary source of law in situations of non-int

armed conflict is necessary. Moreover, even though not applicable per se

ciples and rules of GC IV might serve as guidance.50

It can be argued that the basis for the detention/internment activi

forces assigned to the International Security Assistance Force (ISAF) can 

in UN Security Council Resolution 1386 of December 20, 2001 and s

resolutions. Those resolutions authorize the ISAF to assist Afghan aut

the maintenance of security and ISAF-participating States to take “all 

measures to fulfil its mandate.”51 The wording “necessary measures” co

terpreted as encompassing deprivation of liberty activities. However, th

remains vague and definitely needs more details regarding the grounds a

governing the use of internment as a form of deprivation of liberty.

Conclusions

In the aftermath of 9/11, the armed conflict in Afghanistan has raised m

tions concerning the application of IHL, in particular with regard to dep

liberty. Nothing in existing IHL prevents US authorities from capturing

or interning persons in the fight against terrorism, or from prosecutin

suspected of having committed criminal offenses when appropriate. Th

author’s opinion that, if properly implemented, the existing convention

tomary rules of IHL adequately address most, if not all, of these questi

years after the beginning of the conflict, and on the verge of the 

Guantanamo, it is time to think on how better compliance can be ach

January 2009 White House executive order establishing a special task for

tify “lawful options for the disposition of individuals captured or appre

connection with armed conflicts and counterterrorism operations”52 see

significant step in the right direction.

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Notes

1. US forces have been deployed in Afghanistan under the banner of Operatio

Freedom since 2001 and under the NATO-led International Security Assistance Forc

since 2002.

2. The term “IHL” is used as synonymous with the “law of armed conflict” an

and customs of war.”

3. It is not the aim of the author to identify and attribute specific violations th

been committed by the parties to the conflict.

4. See Yoram Dinstein, Jus in Bello Issues Arising in the Hostilities in Iraq in 200

YEARBOOK ON HUMAN RIGHTS 2 (2003).

5. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for th

tion of the Condition of Wounded, Sick and Shipwrecked Members of Armed Fo

Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment 

of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; Convent

to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 

287; all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard 

3d ed. 2000) at 197, 222, 244 and 301, respectively.

6. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 

ter AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U

[hereinafter AP II]; both reprinted in DOCUMENTS ON THE LAWS OF WAR, supra n

and 483, respectively.

7. See Jean-Marie Henckaerts, Binding Armed Groups Through Humanitarian 

and Customary Law, in RELEVANCE OF INTERNATIONAL HUMANITARIAN LAW TO 

ACTORS 132 (Marc Vuijlsteke, Christine Reh & Christopher Reynolds eds., 2003), 

http://www.coleurop.be/content/publications/pdf/Collegium27.pdf; Jean-Marie 

The Conduct of Hostilities: Target Selection, Proportionality, and Precautionary Mea

International Humanitarian Law, in PROTECTING CIVILIANS IN 21ST CENTURY WA

GET SELECTION, PROPORTIONALITY AND PRECAUTIONARY MEASURES IN LAW AN

11–12 (Mireille Hector & Martine Jellema eds., 2006).

8. See President George W. Bush, Address to the Nation (Sept. 11, 2001), availa

www.nationalcenter.org/BushGW91101Address.html.

9. Bagram is a place of detention located on the US military base in the an

Bagram, north of Kabul. The US base was originally built and used by the Soviet Unio

war in Afghanistan in 1979–89. The detention center was set up at the end of 2001 a

by the US military as a temporary screening facility until the end of 2004. Detainees 

released, or sent to US places of detention at Kandahar, Afghanistan or at Guantanamo 

10. For a list of US detainee transfers to and from Guantanamo, see 

.globalsecurity.org/military/facility/guantanamo-bay_detainees.htm (last visited Feb

11. See Exec. Order No. 13492, § 3, 74 Fed. Reg. 4897 (Jan. 27, 2009) (Review a

tion of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Dete

ities) [hereinafter White House Executive Order].

12. See Eric Schmitt, Two Prisons, Similar Issues for President, NEW YORK TIM

2009, at A1.

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g 

military campaign, years of armed hostilities in Afghanistan between the Northe

armed group and the Taliban constituted a non-international armed conflict, thus w

to the rules of IHL.

14. Pakistan, Saudi Arabia and the United Arab Emirates.

15. COMMENTARY IV RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS 

WAR 20 (Jean S. Pictet ed., 1958).

16. Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on Defence Motion for In

Appeal on Jurisdiction, ¶ 70 (Oct. 2, 1995). This definition has been adopted by ot

tional bodies since then.

17. See AP I, supra note 6, arts. 48, 51, 53, 54, 57 & 58.

18. Regulations Respecting the Laws and Customs of War on Land, anne

Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1

2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 69.

19. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, 2004 I.C.J. 136, ¶ 89 (July 9); 1 Trial of the Major War Criminals Befo

national Military Tribunal at Nuremberg, 14 November 1945–1 October 1946, at 253–

20. SeeICRC Opinion Paper, How is the term “armed conflict” defined in Intern

manitarian Law (Mar. 2008), http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/arm

-article-170308/$file/Opinion-paper-armed-conflict.pdf

21. For more information on customary law and for a complete description of 

IHL applicable in non-international armed conflict as a matter of customary law, s

study on customary international humanitarian law. JEAN-MARIE HENCKAERT

DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005) (2 vo

ume I, Rules; Volume II, Practice (2 Parts)).

22. There are some exceptions such as Article 46 of AP I, which is of customa

provides that combatants who engage in espionage do not have the right to POW s

23. There are some categories of persons who are not combatants but who are gr

status (e.g., war correspondents as provided in Article 4, GC III).

24. COMMENTARY III RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 

Pictet ed., 1958) [hereinafter ICRC COMMENTARY III].

25. Id. at 59–61.

26. Whether these criteria must also be met by a State’s regular armed forces h

some controversy in literature with arguments based on textual logic, i.e., the conditi

mentioned in Article 4(A)(2) and not in Article 4(A)(1) and (3) of GC III. See, e.g

Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 

JOURNAL OF INTERNATIONAL LAW 895 (2002); Yoram Dinstein, Unlawful Comba

RAEL YEARBOOK ON HUMAN RIGHTS 255 (2002).

27. See Memorandum from George Bush to Vice President et al., Humane Trea

Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE PAPERS: TH

ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005); Press Release, O

Press Secretary, White House Fact Sheet: Status of Detainees at Guantanamo (Fe

available at http://www.aiipowmia.com/wh/wh06_07feb02.html.

28. See, e.g., Posting of John B. Bellinger, Unlawful Enemy Combatants (paras. 

17, 2007 posting), to http://opiniojuris.org/author/john-bellinger/.

29. See Rüdiger Wolfrum & Christiane E. Philipp, The Status of the Taliban: T

tions and Rights under International Law,6MAX PLANCK YEARBOOK OF UNITED NA

559 (2002).

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() 

[s]hould any doubt arise as to whether persons having committed a belligerent 

having fallen into the hands of the enemy belong to any of the categories enume

Article 4, such persons shall enjoy the protection of the present Convention un

time as their status has been determined by a competent tribunal.

31. ICRC COMMENTARY III, supra note 24, at 77.

32. Rasul v. Bush, 542 U.S. 466 (2004).

33. See Memorandum from the Deputy Secretary of Defense to the Secretary o

Order Establishing Combatant Status Review Tribunal (July 7, 2004), availab

www.defenselink.mil/news/Jul2004/d20040707review.pdf.

34. See Memorandum from the Secretary of the Navy to Distribution, Implem

Combatant Status Review Procedures for Enemy Combatants at Guantanamo Bay 

Cuba (July 9, 2004), available at http://www.dod.mil/news/Jul2004/d20040730com

35. See, e.g., Brief for the Respondents at 50, Boumediene v. Bush, No. 06-1195 

2007).

36. See GC III, supra note 5, art. 118.

37. See id., art. 102.

38. Internment is defined as the deprivation of liberty of a person that has been 

dered by the executive branch, not the judiciary, without criminal charges being bro

the internee.

39. For more details, see Knut Dörmann, The Legal Situation of “Unlawful/

Combatants,” 85 INTERNATIONAL REVIEW OF THE RED CROSS 45 (2003).

40. The International Court of Justice recognized the customary nature of CA3 

non-international armed conflict but also in the event of international armed confl

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

41. See Christopher Greenwood, International Law and the “War Against Terror

TERNATIONAL AFFAIRS 316 (2002).

42. For an elaboration on the procedural principles and safeguards governing inte

INTERNATIONAL COMMITTEE OF THE RED CROSS, IHL AND THE CHALLENGES OF CON

ARMED CONFLICTS Annex 1 (2007), available at http://www.icrc.org/Web/eng/

htmlall/ihl-30-international-conference-101207/$File/IHL-challenges-30th-In

-Conference-ENG.pdf [hereinafter ICRC Report].

43. Boumediene v. Bush, 553 U.S. 7 (2008).

44. See Richard B. Zabel & James J. Benjamin, Jr., Human Rights First, In Pursu

Prosecuting Terrorism Cases in Federal Court (2008), available at http://www.hum

.info/pdf/080521-USLS-pursuit-justice.pdf. See also Peter Finn, Obama Set to Rev

Commissions, Changes Would Boost Detainee Rights, WASHINGTON POST, May 9, 20

45. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

46. Memorandum from the Deputy Secretary of Defense to the Secretaries of 

Departments et al., Application of Common Article 3 of the Geneva Conventions t

ment of Detainees in the Department of Defense (July 7, 2006), available at http://w

sgp/othergov/dod/geneva070606.pdf.

47. See White House Executive Order, supra note 11, § 6. See the outcome of this r

view of Department Compliance with President’s Executive Order on Detainee Condit

finement (2009), available at http://www.defenselink.mil/pubs/pdfs/REVIEW_OF_DEP

_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ORDER_ON_DETAINEE _CO

_OF_CONFINEMENTa.pdf.

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gy (

40, (codified at 50 U.S.C. § 1514), which authorizes the President to use “all neces

propriate force” against “nations, organizations, or persons” associated with 9/11, 

adequate basis for US detention abroad. In this regard, see Hamdi v. Rumsfeld, 5

(2004). See also the Respondents’ Memorandum Regarding the Government’s De

thority Relative to Detainees Held at Guantanamo Bay, in Re: Guantanamo Bay Det

tion, filed by the US Department of Justice on March 13, 2009. At the time this is 

unclear whether the US administration would rely on the Authorization for the Us

Force authority with regard to detention in Afghanistan.

49. AP II, supra note 6, art. 5(1) (“the following provisions shall be respected as 

with regards to persons deprived of their liberty for reasons related to the arm

whether they are interned or detained”); id., art. 6(5) (“At the end of hostilities, the a

power shall endeavour to grant the broadest possible amnesty to persons who have 

in the armed conflict, or those deprived of liberty for reasons related to the arm

whether they are interned or detained”).

50. For more details, see ICRC Report, supra note 42.

51. S.C. Res. 1386, ¶ 3, U.N. Doc. S/RES/1386 (Dec. 20, 2001).

52. Exec. Order No. 13493, § 1, 74 Fed. Reg. 4901 (Jan. 27, 2009) (Review of De

icy Options).

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XIV

Rationales for Detention: Security Thr

and Intelligence Value

Ryan Goodman*

In the armed conflict with Al Qaeda inside and outside Afghanista

government has had to grapple with difficult legal issues concernin

be detained. In this brief essay, I discuss whether US practices have been 

with the law of armed conflict (LOAC). Three specific issues are consid

first is a threshold question: Does LOAC regulate who can be detained 

international armed conflict? After concluding that it does, I address two 

that implicate the substantive criteria for detention. First, is it lawful to d

ians who have not directly participated in hostilities? Second, is it lawfu

individuals for a long or indefinite period for the purpose of gathering in

Since September 11, the US government has adjusted its detention p

overcome various legal defects. These three issues remain among the fun

challenges to the detention regime.

It is not obvious that LOAC regulates the substantive grounds for de

non-international armed conflict. Neither Common Article 3 nor Addit

tocol II explicitly addresses the subject. They contain no language expr

hibiting arbitrary detention or unlawful confinement. Similarly, the Rom

for the International Criminal Court includes “unlawful confinement” 

* Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law S

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war crimes in international armed conflict.

Unlawful confinement, h

conspicuously absent from the Statute’s list of war crimes in non-int

armed conflict. Additionally, a 2004 expert meeting—which includ

Doswald-Beck, Knut Dörmann, Robert Goldman, Walter Kälin, Judge 

Meron, Sir Nigel Rodley and Jelena Peji—concludes that LOAC does n

rules precluding unlawful confinement in non-international armed con

Non-International Armed Conflicts

The experts noted that there are no provisions requiring certain reasons for de

nor any procedures to prevent unnecessary detention. It was further obser

there are no specific supervisory mechanisms other than the minimal requirem

the ICRC [International Committee of the Red Cross] be allowed to offer its se

was stated, therefore, that only national law is relevant, as well as internationa

rights law.3

Some legal advisers at the International Committee of the Red Cro

have helped support this view. A presentation at the 2004 meeting by 

Deputy Head of the Legal Division of the ICRC, states: “International h

ian law applicable to non-international armed conflicts contains no pro

quiring certain grounds for detention/internment nor are there any p

defined to check the need for such detention.”4 An important article in th

tional Review of the Red Cross by Jelena Peji, Legal Adviser in the ICRC L

sion, is more equivocal. She states:

In non-international armed conflicts there is even less clarity as to how admin

detention is to be organized. Article 3 common to the Geneva Conventions, 

applicable as a minimum standard to all non-international armed conflicts, 

no provisions regulating internment, i.e. administrative detention for security 

apart from the requirement of humane treatment.5

Pejidoes not elaborate whether or to what extent the requirement o

treatment might directly regulate the use ofsecurity rationales or other g

confinement.

Many of these experts find some solace in the notion that gaps in LO

tolerable (else a legal black hole) and that those gaps would be filled b

tional human rights law. The 2004 expert meeting, in which Peji, Dör

others participated, concludes:

The experts stated that as IHL does not provide procedural guarantees to 

detained during non-international armed conflict, human rights standar

always apply . . . . The general view was that instead of trying to amend huma

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y g, pp

should be those of human rights law and subject to human rights remedies.6

International human rights law, however, is not accorded the same lega

bolic) weight in US law and practice as the Geneva Conventions or cust

ternational humanitarian law. Hence, the exclusion of LOAC from th

would leave a substantial void in the definition and regulation of imp

behavior.

According to the weight of legal authority, however, no such gap exis

ful confinement is prohibited by Common Article 3 (e.g., as a form of 

treatment) and by customary international humanitarian law. Under t

work set forth in Common Article 3, the power to detain is subject to a n

substantive constraints. First, individuals cannot be detained on discr

grounds such as “race, color, religion or faith, sex, birth or wealth, or 

similar criteria.”7 Second, parties to a conflict are prohibited from taking 

According to the ICRC Commentary, that prohibition is based on a fun

principle of justice:

The taking of hostages, like reprisals, to which it is often the prelude, is contra

modern idea of justice in that it is based on the principle of collective responsi

crime. Both strike at persons who are innocent of the crime which it is inte

prevent or punish.8

In other words, if a person does not bear individual responsibility for 

threat to the State, he should not be deprived of his liberty, even if conf

could prevent the threat from materializing. Third, Common Article 3 

the passing of a sentence without affording fundamental judicial guara

that provision implicitly restricts the use of administrative detention fo

purposes.

More generally, unlawful confinement is prohibited by a broad-bas

tion under Common Article 3: hors de combat “shall in all circumstances 

humanely.”9 Indeed, the recent 2005 ICRC study on customary interna

manitarian law states that, as a matter of treaty law, “arbitrary deprivation 

is not compatible” with humane treatment under Common Article 3

Dingwall argues persuasively that Common Article 3 prohibits unlawfu

ment as a form of “cruel treatment.”11 And, the overriding obligation o

treatment is even more clearly and directly connected to the sources tha

invokes.12 As an analytic matter, these interpretations of humane treatme

precluded by the existence of text explicitly prohibiting unlawful 

ment in international conflicts, but the absence of text referring to 

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confinement in Common Article 3. Rape is not explicitly prohibited by 

Article 3 either; yet it is well understood that rape is covered by the art

protections codified in Common Article 3 are simply written in broade

International authorities also suggest that unlawful confinement is p

in non-international armed conflict as a matter of customary internatio

considering the practices of armed opposition groups in Colombia’s civ

Inter-American Commission on Human Rights stated: “International h

ian law also prohibits the detention or internment of civilians except wh

sary for imperative reasons of security.”14 Liesbeth Zegveld also repor

UN Commission on Human Rights drew from international humanitari

plicable to international armed conflicts in demanding armed oppositi

refrain from arbitrary detention in Afghanistan (1993) and in the Sudan 

In addition, Article 3 of the Turku Declaration of Minimum Humanita

dards proscribes the disappearance of individuals, “including their abd

unacknowledged detention.”16 And Article 11 of the Turku Declaratio

an implicit restriction on substantive grounds for detention: “If it is c

necessary for imperative reasons of security to subject any person to ass

dence, internment or administrative detention, such decisions shall be s

regular procedure prescribed by law . . . .”17

Once the question whether LOAC prohibits arbitrary detention is r

the affirmative, a second-order question is whether LOAC permits the ad

tive detention of civilians, including civilians who do not directly par

hostilities.18 That question has arisen in recent litigation, and federal ju

been divided on the issue.19 The Fourth Geneva Convention rules on in

are the most directly relevant in this regard.20 And, in accordance with 

27, 41–43 and 78 of the Civilians Convention, States are permitted to 

only civilians who directly participate in hostilities (e.g., unlawful comba

also civilians whose indirect participation in hostilities poses a security 

first blush, US practices in the conflict with Al Qaeda do not necessita

such distinctions. The US government has formally claimed the aut

legislation21 and in executive action,22 to detain only “unlawfulcombatan

ever, the government’s peculiar definition of “combatants” and its act

tion decisions betray a contrary policy of detaining civilians who have

indirectly participated in hostilities.23

Although LOAC does not forbid the detention of this broader class o

domestic law might. For example, an important constitutional distinctio

ist with respect to classes of individuals who can be subject to military ju

The constitutional line may be drawn between “combatants” (includ

participants in hostilities) and civilians, and LOAC should help d

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boundaries of those groups for constitutional purposes. Indeed, if the go

wishes to detain individuals in the latter group, it may be required to ado

plicitly subjecting “civilians” to detention. The basis for that clear state

would derive from domestic law, however, and not LOAC itself.

A remaining question is whether the United States can detain individ

long-term or indefinite basis, for the purpose of gathering intelligence. B

lyzing that question of law, first consider the record of US detention pra

lowing September 11. The government has used intelligence value as a g

initial internment decisions, as well as for denying release. Former Dep

tant Secretary of Defense for Detainee Affairs Professor Matthew Waxma

wrote: “Intelligence gathering through questioning of those in custody c

another important reason for detention in warfare, and especially in fig

rorist networks.”24 With respect to the global sphere of operations, the 2

terinsurgency Field Manual states that information gathering provides a 

detaining two classes of individuals: (1) “persons who have engaged in, 

those who engage in, terrorist or insurgent activities” and (2) “persons 

incidentally obtained knowledge regarding insurgent and terrorist ac

who are not guilty of associating with such groups.”25 Notably, informa

ering appears to be an independent basis for detaining the first category 

uals even if they no longer pose a security threat.26 However, for t

category, the Counterinsurgency manual states: “Since persons in the se

gory have not engaged in criminal or insurgent activities, they must b

even if they refuse to provide information.”27 It stands to reason that ind

the first category could be denied release if they refuse to provide inform

another component of global operations, President George Bush annou

under the CIA’s secret detention program “[m]any are released after qu

or turned over to local authorities—if we determine that they do not pos

uing threat and no longer have significant intelligence value.”28

With respect to detention in Guantanamo specifically, in determinin

a detainee should be transferred to the base, US military screening team

combatant commander must consider “the possible intelligence tha

gained from the detainee.”29 And administrative review boards (ARB) 

sider whether a detainee “is of continuing intelligence value” in decidin

to recommend release.30 That standard appears to regularize practices 

dated the ARB process.31 Although stated in a summary fashion, a joint 

UN human rights officials concerning Guantanamo concludes “that th

of the ongoing detention is not primarily to prevent combatants from 

arms against the United States again, but to obtain information and gat

gence on the Al-Qaeda network.”32

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Within the United States, the cases of individuals such as José Padi

Saleh Kahlah al-Marri suggest that intelligence value may constitute a 

rationale for detention. In Padilla’s case, the Solicitor General argued 

Supreme Court that “[t]he detention of enemy combatants serves two 

poses directly connected to prosecuting the war. First, detention prevent

combatants from rejoining the enemy and continuing the fight. Second, 

enables the military to gather critical intelligence from captured comba

cerning the capabilities and intentions of the enemy.”33 For the latter pr

the Solicitor General cited and included, as an appendix to his brief, a d

by Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Age

Jacoby Declaration focuses on the need to obtain information from the d

the basis for military confinement outside of the criminal justice syste

Marri’s case, federal judges expressed concern over the apparent inter

based reasons for transferring the petitioner from criminal jurisdiction 

administrative detention:

[N]ot only has the Government offered no other explanation [than inter

purposes] for abandoning al-Marri’s prosecution, it has even propounded an 

in support of al-Marri’s continued military detention, stating that he “p

information of high intelligence value.” See Rapp. Declaration. Moreover

Attorney General John Ashcroft has explained that the Government decided to 

al-Marri an enemy combatant only after he became a “hard case” by “re

numerous offers to improve his lot by . . . providing information.” John A

Never Again: Securing America and Restoring Justice 168-69 (2006).36

Professor Marty Lederman, a leading expert on US detention policy since 

11, summarizes his view of the overall scheme: “Unlike in past conflicts

purpose of detention was incapacitation of actual combatants so that they 

fight against us, the dominant purpose of this detention regime is in

gathering.”37

It is important to recognize that intelligence value has also constitute

pendent basis for administrative detention in Iraq.38 Consider Lieuten

Wall’s account of detainee operations:

Officially, individuals could be detained for their intelligence value for no more 

hours; however, anecdotal evidence suggested that longer intelligence detentio

common. The argument in favor of intelligence detentions was that, for exam

individual knew who was responsible for carrying out attacks on Coalition Fo

then withholding [this information] constituted an imperative threat to the se

Coalition Forces . . . . The argument against such detentions was that the in

himself did not pose an imperative security threat . . . .39

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Other reports also find that intelligence value constituted a

formal 

mal—ground for detention in Iraq.40

Three arguments might be raised to support the legality of US practice

Geneva Conventions contain no express prohibition on the use of det

intelligence-gathering purposes. Second, detention is permitted if obt

relevant information serves an imperative security interest. Third, if a St

authority to detain an individual until the cessation of hostilities, the St

prerogative to release her earlier if she provides valuable intelligence info

At the outset in addressing these arguments we should note that an ex

vision of the Geneva Conventions may not be necessary if the regime 

contemplates that the only basis for detention is to prevent individuals re

the fight. A customary norm may also suffice if treaties do not. And, eve

permits interrogation incidental to detention, it does not necessarily per

tion for the purpose of interrogation. Nor does it permit coercive inte

Let’s turn to an elaboration of some of these points and other points as 

First, all three arguments are contradicted by legal authorities tha

dressed the subject with respect to the general LOAC regime. The ICR

criticized the use of Guantanamo for interrogation purposes.41 The join

UN officials declared: “The indefinite detention of prisoners of war and c

ternees for purposes of continued interrogation is inconsistent with the 

of the Geneva Conventions.”42 And a plurality of the US Supreme Cour

dicta: “Certainly, we agree that indefinite detention for the purpose of 

tion is not authorized.”43 Some commentators have suggested that the 

statement is conclusory and without citation to legal authority. However

passages, the opinion references authorities suggesting that detention is 

exclusively to prevent individuals returning to the battlefield.44 US polic

ingly, contradicts the collective judgment of the US Supreme Court (in 

opinion), the ICRC and UN human rights officials.

Second, other provisions of the Geneva Conventions indirectly su

conclusion that indefinite or long-term detention is permitted only to p

dividuals returning to the battlefield. In general, detaining powers arg

early release of prisoners of war on the ground that the individuals migh

the fight. However, some detainees are too sick or wounded to return to 

field.45 A valuable question for our purposes is whether the detaining po

nevertheless hold the individual to gather intelligence. The Prisone

(POW) Convention is clear; it places a categorical obligation to repatria

dividuals to their home countries.46 There is no exception for detaining o

ing release of individuals on any other grounds such as intelligence valu

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Third, the most relevant rules may not be found directly in provision

ing detention. The most relevant source may be found in rules governin

gation. And those interrogation rules preclude the initial decision to 

individual, as well as the purported prerogative to order release of a det

provides information. More specifically, the use of intelligence value vio

cle 17 of the POW Convention and Article 31 of the Civilians Convention

ticles strictly prohibit physical and moral coercion to obtain informa

detainees.47 Accordingly, individuals who are interrogated should n

better treatment (release from detention) or worse treatment (continue

ment) on the basis of whether they provide or withhold information. In 

relevant LOAC rules are found more directly in provisions regulating m

interrogations, rather than provisions regulating grounds for detention

the former constitutes an independent basis for the application of LOA

international armed conflicts. That is, even if LOAC does not regulate 

confinement in non-international armed conflict, it undoubtedly regu

cive interrogations.

Fourth, an individual’s possession of information does not constitute 

curity rationale for internment under the Civilians Convention. Accord

ICRC Commentary, States have significant discretion to define acti

threaten their security.48 The Commentary, however, also suggests that th

uals must themselves directly pose the threat. The paradigmatic example

by the Commentary include “[s]ubversive activity carried on inside the t

a Party to the conflict or actions which are of direct assistance to 

Power.”49 More specific examples include “members of organizations 

ject is to cause disturbances, or . . . [individuals who] may seriously preju

curity by other means, such as sabotage or espionage.”50 Moreover, as 

above, various authorities, including the ICRC, UN human rights offici

Supreme Court, have repudiated intelligence-based grounds for detenti

rejections were absolute and were issued in the context of security-bas

for gathering intelligence.

Finally, the implications of allowing intelligence value as an ind

ground for long-term or indefinite detention are intolerable. Doing so m

mit the confinement of individuals, such as the children or other family 

of combatants, who have no engagement in hostilities but have person

edge about the combatants. It might also permit the confinement of inn

tainees who do not have information themselves but are held as bargainin

coerce other individuals to provide information. And, a further implicat

gested by the declaration of Admiral Jacoby. He contends that “the intel

cle is continuous. This dynamic is especially important in the War on T

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There is a constant need to ask detainees new lines of questions as add

tainees are taken into custody and new information is obtained from 

from other intelligence-gathering methods.”51 That justification essen

vides for continuing to hold individuals even if they have exhausted the

intelligence value. In sum, it is not too much of a stretch to suggest that 

individuals on the basis of what they were believed to know could be 

slope leading to mass, unwarranted detentions.”52

Since September 11, the United States has adjusted its detention prac

sponse to powerful objections. Some of the remaining objections are vali

ers not. As a threshold matter, an important point is that the laws of wa

unlawful confinement in non-international armed conflict. The Obama 

tration provides a new opportunity to reassess detention policy through 

framework.

Notes

1. I work with the assumption that since September 11, 2001, the United States 

gaged in an armed conflict with Al Qaeda—a proposition that all three branches of 

ernment now accept. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 630–

Memorandum from Gordon England, Deputy Secretary of Defense, to the Secre

Military Departments et al., Application of Common Article 3 of the Geneva C

to the Treatment of Detainees in the Department of Defense (July 7, 20

www.defenselink.mil/home/dodupdate/For-the-record/documents/20060711.html

Commissions Act of 2006 § 948a(1), Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2

fied in 10 USC 47(A)). See also Derek Jinks, September 11 and the Laws of War, 28 YA

OF INTERNATIONAL LAW 1 (2003).

2. Statute of the International Criminal Court art. 8, July 17, 1998, 2187 U.N.

3. EXPERT MEETING ON THE SUPERVISION OF THE LAWFULNESS OF DETENTI

ARMED CONFLICT 17 (The Graduate Institute of International Studies, 2004), availa

www.ruig-gian.org/ressources/communication_colloque_rapport04.pdf [hereinaft

pert Meeting].

4. Id. at 15.

5. Jelena Peji, Procedural Principles and Safeguards for Internment/Administr

tion in Armed Conflict and Other Situations of Violence, 858 INTERNATIONAL REVIEW 

CROSS 375 (2005).

6. 2004 Expert Meeting, supra note 3, at 41.

7. Convention Relative to the Protection of Civilian Persons in Time of War ar

12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS O

(Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter Civilians Conventi

8. COMMENTARY: IV GENEVA CONVENTION RELATIVE TO THE TREATMENT O

IN TIME OF WAR 39 (Jean S. Pictet ed., 1958) [hereinafter ICRC COMMENTARY IV]

9. Civilians Convention, supra note 7, art. 3(1).

10. I CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 344 (Jean-Marie H

Louise Doswald-Beck eds., 2005); cf. James G. Stewart, Rethinking Guantánam

379

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CRIMINAL JUSTICE 12 (2006); ICRC, US Detention Related to the Events of 11 Septemb

Its Aftermath—The Role of the ICRC, July 30, 2008, http://www.icrc.org/web/eng/s

htmlall/usa-detention-update-121205?opendocument [hereinafter Role of the ICR

11. Joanna Dingwall, Unlawful Confinement as a War Crime: The Jurisprudence 

slav Tribunal and the Common Core of International Humanitarian Law Applicable to 

rary Armed Conflicts, 9 JOURNAL OF CONFLICT AND SECURITY LAW 133 (2004).

12. Id. For an argument that Article 5 of the Civilians Convention provides ev

“humane treatment” includes a prohibition on unlawful confinement, see DEREK 

RULES OF WAR: THE GENEVA CONVENTIONS IN THE AGE OF TERROR (forthcoming 

13. Dingwall, supra note 11, at 159.

14. Inter-American Commission on Human Rights, Third Special Report on 

Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9, rev. 1 (1999), ¶ 122; id.

(“The Commission notes that the vast majority of these detentions relating to the e

cott constituted breaches of international humanitarian law. The armed dissident gro

edly captured and held civilians, although they did not pose any direct threat to 

operations of the guerrillas .... Armed dissident groups are also responsible for arb

vations of liberty carried out against civilians, outside of the context of the election

15. See LIESBETH ZEGVELD, THE ACCOUNTABILITY OF ARMED OPPOSITION GR

TERNATIONAL LAW 65–66 (2002);see also I CUSTOMARY INTERNATIONAL HUMANIT

supra note 10, at 348–49.

16. Turku Declaration, art. 3, U.N. Doc. E/CN.4/Sub.2/1991/55 (1990).

17. Id., art. 11.

18. See Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 AMER

NAL OF INTERNATIONAL LAW 48 (2009).

19. See, e.g., al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc), cert

U.S.L.W. 3148 (U.S. Dec. 5, 2008) (No. 08-368).

20. One reason to examine the rules that apply in international conflict is due to 

an analogy. It is commonplace for commentators to draw implicitly and explicitly o

and Fourth Conventions in discussing the conflict with Al Qaeda (e.g., with respect 

fighters and holding them until the cessation of hostilities). We must, therefore, und

referent—the rules governing international conflict—simply to assess those types 

stronger reason is that the Fourth Geneva Convention, indeed, generally constitut

closely analogous rules concerning detention of civilians. It thus provides the best 

tion of LOAC rules when interpretive gaps arise.

More fundamentally, LOAC in international armed conflict is directly relevan

establishes an outer boundary of permissive action. If States have authority to 

particular actions in an international armed conflict, they a fortiori possess the 

engage in those actions in non-international conflict. That proposition results from 

relationship between State sovereignty and international law. And LOAC is no exc

scope of LOAC is uniformly less restrictive in internal armed conflicts (where State so

stronger) than in international armed conflicts (where State sovereignty is weaker

LOAC permits States to detain civilians in international armed conflicts, LOAC su

States to take those actions in non-international conflicts.

21. Military Commissions Act of 2006 § 948 a(1), Pub. L. No. 109-366, 120 Stat

17, 2006) (codified in 10 USC 47(A)).

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py y 

Navy, Order Establishing Combatant Status Review Tribunals 1 (July 7, 2004), availa

www.defenselink.mil/news/Jul2004/d20040707review.pdf.

23. Department of Defense, Fact Sheet: Guantanamo Detainees 2 (Feb. 13, 2004

among “representative examples” of detained combatants individuals “involved in 

nancing,” “with links to a financier of the September 11th plots,” and “who served as 

translator and managed operating funds”), available at http://www.defenselin

Apr2004/d20040406gua.pdf; see also News Release, Office of the Assistant Secretary 

(Public Affairs), Guantanamo Provides Valuable Information (June 12, 2005), 

www.defenselink.mil/releases/release.aspx?releaseid=8583 (“Guantanamo houses e

batants ranging from terrorist trainers and recruiters to bomb makers, would-be su

ers and terrorist financiers”). Also consider the principal charges against individ

Guantanamo and later designated for prosecution before military commissions. A

the initial charge sheets, one detainee allegedly served as an “accountant and tre

“provided logistical support such as food, shelter and clothing;” he also “assisted in 

transporting” weapons and ammunition. Charge Sheet at 3–4, United States v. al Qo

tary Commission), available at http://www.defenselink.mil/news/Feb2008/d20080

(last visited Feb. 10, 2009). A second detainee “created several instructional and mot

cruiting video tapes.” Charge Sheet at 3, United States v. al Bahlul (US Military Co

available at http://www.defenselink.mil/news/Jun2004/d20040629ABCO.pdf (last 

10, 2009). These allegations alone clearly would not support a finding of “direct pa

under LOAC. Instead, these facts fall squarely within expressly identified example

participation or nonparticipation. See MICHAEL BOTHE ET AL., NEW RULES FOR 

ARMED CONFLICTS 672 (1982) (noting that “transporting supplies, serving as messe

seminating propaganda” does not constitute direct participation). See also Ryan G

Derek Jinks, International Law, U.S. War Powers, and the Global War on Terror, 11

LAW REVIEW 2653 (2005).

24. Matthew C. Waxman, Detention as Targeting: Standards of Certainty and 

Suspected Terrorists, 108 COLUMBIA LAW REVIEW 1365, 1375 (2008).

25. Headquarters, Department of the Army & Headquarters, Marine Corps Com

opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency ¶ 7-40 (2006).

26. See also Department of Defense, Fact Sheet: Guantanamo Detainees, supra 

(“The commander of US Southern Command, or his designee, then makes a recom

in each individual case .... Continued detention of enemy combatants is appropri

when a detainee is identified as posing a significant threat if released, but also when 

substantial law enforcement or intelligence interest”).

27. Counterinsurgency, supra note 25.

28. President George W. Bush, Remarks on the War on Terror, 42 WEEKLY CO

OF PRESIDENTIAL DOCUMENTS 1569 (Sept. 6, 2006); see also id. at 1573 (“[O]nc

termined that the terrorists held by the CIA have little or no additional intelligence 

of them have been returned to their home countries for prosecution or detenti

governments”).

29. Deputy Secretary of Defense Paul Wolfowitz, OSD Order 06942-04, Adm

Review Procedures for Enemy Combatants in the Control of the Dep’t of Def. at G

Bay, Cuba (May 11, 2004), at 1-2, available at http://www.defenselink.mil/new

d20040518gtmoreview.pdf.

30. Administrative Review Board Process § 3(f)(1)(c) (attached to Memora

Gordon England, Deputy Secretary of Defense, to the Secretary of State et al., Implem

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y 

Guantanamo Bay, Cuba (Sept. 14, 2004), available at http://www.defenselin

Sep2004/d20040914adminreview.pdf).

31. General Tommy Franks, Press Conference in Tampa, Florida (Jan. 18, 20

www.globalsecurity.org/military/library/news/2002/01/mil-020118-dod01.htm 

have them in Guantanamo Bay, that sort of interrogation will continue, and then 

tions will be made as to whether these—a given detainee may be retained for intellige

may be handed over for prosecution within legal channels.”); Neil A. Lewis, Red Cr

Indefinite Detention in Guantanamo Bay, NEW YORK TIMES, Oct. 10, 2003, at A

[Geoffrey] Miller[, Commander of Joint Task Force Guantanamo Bay,] said the i

been kept in custody because they had valuable information to impart.”).

32. U.N. Economic and Social Counsel, Commission on Human Rights, Situa

tainees at Guantanamo Bay, Report of the Chairperson-Rapporteur of the Workin

Arbitrary Detention; the Special Rapporteur on the independence of judges and lawy

cial Rapporteur on torture and other cruel, inhuman or degrading treatment or puni

Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on 

everyone to the enjoyment of the highest attainable standard of physical and mental 

U.N. Doc. E/CN.4/2006/120 (Feb. 2006), available at http://daccessdds.un.org/do

GEN/G06/112/76/PDF/G0611276.pdf?OpenElement [hereinafter Joint Report on 

Detainees at Guantanamo Bay].

33. Brief for the Petitioner at 28–29, Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No

34. Declaration of Vice Admiral Lowell E. Jacoby, id., available at http://ww

archive/Padilla_vs_Rumsfeld/Jacoby_declaration_20030109.pdf.

35. For further analysis on this point, see Marty Lederman, The Rosetta Stone of th

Interrogation Scandal, http://balkin.blogspot.com/2007/08/rosetta-stone-of-detentioni

.html (Aug. 14, 2007, 11:32 EDT).

36. al-Marri v. Pucciarelli, 534 F.3d 213, 237 n.19 (2008) (Motz, J., concurring 

dissenting in part).

37. Lederman, supra note 35.

38. On the theory that the US conflict with Al Qaeda extends into Iraq, US dete

tices in that area are relevant to our discussion.

39. See Andru E. Wall, Civilian Detentions in Iraq, in INTERNATIONAL LAW A

CONFLICT: EXPLORING THE FAULTLINES: ESSAYS IN HONOUR OF YORAM DINSTE

(Michael N. Schmitt & Jelena Pejic eds., 2007).

40. See, e.g., JAMES R. SCHLESINGER ET AL., FINAL REPORT OF THE INDEPENDEN

REVIEW DETENTION OPERATIONS 60 (2004), available at http://news.findlaw.co

dod/abughraibrpt.pdf (“The security detainees were either held for their intelligen

presented a continuing threat to Coalition Forces.”); id. at 61 (“Interviews indicate

manders were reluctant to concur with release decisions out of concern that poten

ants would be reintroduced into the areas of operation or that the detainees had 

intelligence value.”).

41. Lewis, supra note 31 (Christophe Girod, senior Red Cross official in Washi

that it was intolerable that the [Guantanamo] complex was used as ‘an investigation 

detention center.’”).

42. Joint Report on Situation of Detainees at Guantanamo Bay, supra note 32, ¶ 

of the ICRC, supra note 10 (“Persons detained in relation to an armed conflict may 

for either imperative reasons of security or on suspicion of having committed a crim

43. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

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45. COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF 

OF WAR 515 (Jean S. Pictet ed., 1960) (explaining in similar terms the categorical o

repatriate).

46. Convention Relative to the Treatment of Prisoners of War art. 110, Aug. 

U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, sup

244.

47. Id., art. 17(3) (“No physical or mental torture, nor any other form of coerc

inflicted on prisoners of war to secure from them information of any kind whatever. 

war who refuse to answer may not be threatened, insulted, or exposed to unpleasant o

tageous treatment of any kind.”); Civilians Convention, supra note 7, art. 31 (“No 

moral coercion shall be exercised against protected persons, in particular to obtain 

from them or from third parties.”).

48. ICRC COMMENTARY IV, supra note 8, at 257.

49. Id. There is a possible exception with respect to information, but of a who

character. An individual may possess information which makes her a danger to th

power (e.g., knowledge of vulnerabilities in the detaining power’s defense system). 

reading of Commentary IV would permit the employment of administrative deten

absolutely necessary—to prevent her directly assisting the enemy with that type of 

See id. at 258 (“To justify recourse to such measures the State must have good reason 

the person concerned, by his activities, knowledge or qualifications, represents a real 

present or future security.”).

50. Id. at 258. See also Prosecutor v. Delaliet al., ICTY Trial Chamber, Case N

Judgment, ¶ 568 (Nov. 16, 1998), upheld by Prosecutor v. Delaliet al., ICTY Appea

Case No. IT-96-21-A, Judgment (Feb. 20, 2001); Prosecutor v. Kordiand erkez, C

95-14/2-T, Judgment, ¶ 280 (Feb. 26, 2001), upheld by Prosecutor v. Kordiand 

Appeals Chamber, Case No. IT-95-14/2-A, Judgment, ¶¶ 72–73, 620 (Dec. 17, 2004

51. Declaration of Vice Admiral Jacoby, supra note 34, at 5.

52. Wall, supra note 39, at 431.

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PART V

STABILITY OPERATIONS

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XV

Jus ad Pacem in Bello? Afghanistan, Stab

Operations and the International Law

Relating to Armed Conflict

David Turns*

Introduction

One of the more notorious quotations widely attributed to George 

when he was campaigning for the presidency of the United Stat

was something to the effect that “[w]e don’t do nation-building.” As with 

tributed quotations, the actual remark he made was less curt and slig

nuanced. What actually happened was that in the course of a presiden

with his opponent, Vice President Al Gore, Bush was asked if he would 

ported US military involvement in the ill-fated expanded United Natio

tion in Somalia (UNOSOM II) in 1993–941 had he been president at the 

is what he actually said in reply:

[Somalia] [s]tarted off as a humanitarian mission and it changed into a 

building mission, and that’s where the mission went wrong. The mission was c

And as a result, our nation paid a price. And so I don’t think our troops oug

used for what’s called nation-building. I think our troops ought to be used to f

* Senior Lecturer in International Laws of Armed Conflict, Defence Academy of 

Kingdom (Cranfield University). All opinions stated herein are personal to the autho

no way to be taken as necessarily representing the official views of the government, 

Defence or Armed Forces of the United Kingdom. Responsibility for any errors is m

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pgp 

our best interests. But in this case [i.e., Somalia] it was a nation-building exer

same with Haiti.[2] I wouldn’t have supported either.3

This antipathy notwithstanding, and despite former President Bush

forts amid the rhetoric of the “Global War on Terror,” the realities of th

tional military operational environment in the first decade of the tw

century have produced an exponential growth in the importance of wh

generally termed stability (or stabilization) operations, to such an exten

US military doctrine now acknowledges such operations as “a core U.

mission . . . [to] be given priority comparable to combat operations.”4 Th

of Defence in the United Kingdom, whose long experience with so-cal

wars” in the postcolonial context during the withdrawal from Empire 

mately during the period 1945–65, including conflicts in Palestine, M

prus, Kenya and Aden) has led some foreign observers to suggest a 

mastery of nation-building and counterinsurgency campaigns,5 has only 

in January 2009—circulated a working draft of what will eventually b

first promulgation of a British doctrine on such operations.6

The current campaign in Afghanistan has been described as “a test c

ternational development assistance and bi- and multilateral cooperation

the midst of sustained combat operations in substantial parts of th

whereby “the main problems . . . are restoring security and establishing a 

ing state.”8 Stability operations seem to have become the catchphrase 

generation of military actions: indeed, they have come to be viewed as a

stage in the type of conflicts most prevalent today, namely, asymmetri

between State and non-State actors. In order to win the war it has becom

in places like Iraq and Afghanistan, to win the peace, and that is done by 

the situation in theater after the initial opposition has been defeated or at 

tained.9 The moment of hubris, when President Bush landed on the airc

USS Abraham Lincoln on May 1, 2003 and declared that major combat o

in Iraq had ended, did not in fact herald the conclusion of hostilities in Ir

alition merely swapped one enemy (the State armed forces of the defeate

Hussein regime) for another (various assorted non-State militias repres

ferent sectors of Iraqi society, along with groups affiliated with Al Qaed

ghanistan, by way of contrast, the main enemy has stayed the same

Taliban—but its status changed from being the de facto government in 

up to 90 percent of Afghan territory in September 2001, to that of an i

dispersed in (mainly) the southern provinces of Kandahar and Helm

though intensive military operations against the Taliban continue, int

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coalition forces in Afghanistan, acting in concert with the Afghan gove

President Hamid Karzai, are attempting at the same time to continue a

the reconstruction and development of the country: in a word, nation-bu

Military operations in circumstances such as those prevailing in Afgha

situated at the intersections of two major fault lines in public internat

namely, they are at the junction of the jus ad bellum and the jus in bello, an

neously (within the jus in bello) at the junction of international and non-in

armed conflicts. This article will, first, define stability operations in doctr

and situate them within an international legal context. The significance of 

imacy under the jus ad bellum will be briefly considered and related to the 

Afghanistan before their classification in terms of the international law 

conflict (LOAC) will be analyzed. The application of the jus in bello to su

tions will then be discussed, with reference to some specific operational 

such as the status and treatment of insurgents captured by coalition fo

ghanistan, and the targeting of such insurgents. Finally, some tentative co

will be suggested as to the international law applicable to stability opera

From Peacekeeping to Stability Operations

The phrase “stability operations” may represent, to some extent, new ter

but it does emphatically not refer to a new phenomenon in the continuu

tary operations. The military doctrinal term previously applied in the Un

and United Kingdom was “military operations other than war” (MOOTW

that somehow always seemed to carry a faint hint of derision but nevert

undeniably useful as a catch-all phrase: in effect, it covered practically 

spectrum of military operations, excluding only all-out “war.”11 From 

1950s until the early 1990s the principal manifestation of MOOTW was i

peacekeeping operations undertaken pursuant to UN mandates.

Starting in 1992 with the situation in Somalia, the United Nations be

two new terms—“peace enforcement” and “peace building”—which w

guished from traditional peacekeeping. While peacekeeping involved th

sition of a military force with host State consent in order to supervise c

peace agreements already in place, typically with very restrictive rules 

ment that extended no further than authorizing the use of force in se

peace enforcement came to be used to refer to what might be desc

“beefed-up peacekeeping operation,” namely one in which the situ

mained unstable enough to allow for an expansion of the permitted u

in order to maintain the peace. This would generally occur in situations 

parties to the conflict might have reached a ceasefire or interim peace a

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its observance was too fragile for the interpositional force to preserve 

role. Peace enforcement, in other words, was proactive and essentially 

the international force taking sides in the enforcement of obligations a

tered into by the belligerents.12 Peace building, on the other hand, enco

much wider range of activities designed to prevent the resumption or 

tion of a particular conflict, from disarmament and demobilization of th

parties to election monitoring, from the strengthening of State instituti

promotion of human rights and from the repatriation of refugees to the 

of humanitarian aid.13 UN-mandated missions throughout the 1990s in 

Haiti, Bosnia and Herzegovina, and Kosovo all had various combinati

above list of activities taking place simultaneously. Their salient featu

purposes of this discussion was that they all took place in conditions o

ing armed conflict or, at the very least, serious civil unrest.

Strangely, however, although the range of activities being assigned to 

sions grew and although there was often manifestly no peace to keep, fe

the United Nations adopted the new terminologies outlined above: with

government, for example, Congress continued to use the generic term “p

ing” to refer to all such operations, while the executive branch adopted 

larly generic “peace operations.” In both cases, the inclusion of the wo

was manifestly misplaced since it created the misleading impression tha

erations involved comparatively little risk for the military personnel a

them, whereas in fact they often saw soldiers in what amounted to 

warfighting operations. This, coupled with the stigma of failure that cam

circles to be attached to “peace operations” in 1990s, contributed—at 

psychological level—to the shift in language away from peace and towar

Peace became the endgame, the ultimate objective to be achieved; hen

pacem. But the realities on the ground in places like Iraq and Afghanista

their complexities and ambiguities, forced a general recognition that i

have peace, it is necessary to have stability.

The US Department of Defense currently characterizes stability ope

“[m]ilitary and civilian activities conducted across the spectrum from 

conflict to establish or maintain order in States and regions.”14 The US 

definition of stability operations (“missions, tasks and activities [that] see

tain or reestablish a safe and secure environment and provide essential go

services, emergency infrastructure reconstruction, or humanitarian relief”

ated within the following contemporary context:

The character of this conflict [i.e., the post-2001 security environment] is un

other in recent American history, where military forces operating among the p

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[

] jggg

national security will not come from emerging ambitious states but from 

unable or unwilling to meet the basic needs and aspirations of their people. H

margin of victory will be measured in far different terms from the wars of o

However, time may be the ultimate arbiter of success: time to bring safety and 

to an embattled populace; time to provide for the essential, immediate huma

needs of the people; time to restore basic public order and a semblance of nor

life; and time to rebuild the institutions of government and market econo

provide the foundations for enduring peace and stability. This is the essence of 

operations.16

It is very telling—and very relevant for the assumption of this autho

conduct of stability operations must be subject to the international law 

conflict—that this description of the context for stability operations 

places them within a continuum of military operations, that is to say, in a 

of activity that in itself is closer to war than to peace.

In the United Kingdom, despite the lack at present of a formally pro

doctrine on stability operations, military thinking is very much on the sa

that of our US counterparts. Stability operations are understood to be 

impose security and control in a defined area while restoring and develop

structure and services, in collaboration with appropriate civilian agen

may involve kinetic or non-kinetic applications of force and may occ

during or after major combat operations; or indeed, they may in themse

primary objective of a campaign. Their desired endgame, ultimately, is 

secure a transition of power and control to the civilian authorities of the 

Recently the Chief of the UK General Staff characterized stability ope

involving “several different lines of operation—ensuring security, rebu

sential services, promoting good governance and facilitating economic 

tion.”17 Discussing future trends for the British armed forces, he said:

Instead of adapting each time we deploy, it is clear from recent experiences 

should be structured and trained to conduct an Intervention and Stab

operation almost as the default setting, with the right forces and the correctly q

personnel with the right training to deliver the right effect from the outset.

And this will require both kinetic and non-kinetic means—there will always b

for soldiers who are trained to fight a hostile and implacable enemy, but there 

be a need for soldiers who are trained to deliver essential services until the sit

safe enough for civil agencies to engage; so there will be a need for soldiers tr

deliver humanitarian assistance, to assist with the delivery of local governanc

for soldiers who are experts in the local politics and culture of the area, and 

therefore initiate the early stages of reconciliation and peace-building.18

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Perhaps the most significant aspect of General Dannatt

s remarks is h

tion that stability operations be regarded “almost as the default setting” 

British military capabilities. This reflects the British view that “major com

ations”—full-scale inter-State armed conflicts which have as their object

tal defeat of a governmental enemy, leading to its removal from power

much the exception in the contemporary paradigm of “fourth-genera

fare.” In both the Afghanistan (2001) and Iraq (2003) campaigns, ope

rected against the State (the Taliban in the former case, Saddam’s arme

the latter) were over remarkably quickly; yet counterinsurgency fighting 

to this day, alongside attempts to transform the institutions and infrast

these failing States into stable, functioning authorities that are able to ma

and order. Whether or not one acceptsin abstracto the Bush administrat

acterization of the contemporary security environment for America and 

as a “long war,”19 ongoing stability operations in Afghanistan and Iraq ha

that definitely amount in effect to “war,” even while the stated objective 

Stability operations are nowhere mentioned in international law; neit

ad bellum nor the jus in bello explicitly recognizes the concept. Never

light of the foregoing, it must be stated categorically that a key feature o

porary stability operations is international legitimacy (as will be seen i

section with specific reference to Afghanistan). While legitimacy is no

thing as legality, the prevalent view in both the United States and the Un

dom is that the main framework for international legitimacy is internati

ity: stability operations must take place on the basis of sound au

international law, and must be conducted (in their specifically military 

accordance with the international law of armed conflict.

Stability Operations and the Legality of the Use of Force

Two salient features of contemporary stability operations are that they 

(1) multilateral, i.e., conducted by coalitions, whether ad hoc or (p

within the framework of an established military alliance, like the Nort

Treaty Organization (NATO); and (2) legitimate, i.e., constituting a law

force under either the UN Charter or customary international law—no

former, since no stability operations as presently understood have take

such a controversial legal basis as the doctrine of humanitarian interve

instance. Current operations in Afghanistan will hereinafter be taken a

study for discussion of stability operations and international law.

Although US and coalition forces first commenced military action a

Taliban militia and Al Qaeda elements in Afghanistan in Operation 

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Freedom (OEF) on October 7, 2001 pursuant to the right of individual a

tive self-defense as recognized in Article 51 of the UN Charter (for which 

rity Council mandate is legally required), and OEF continues to this day 

in southern and eastern Afghanistan, internationally-mandated forces 

deployed to the country only in December 2001, after the Taliban had be

from its seats of power. The last main Taliban urban stronghold, Kand

captured by coalition forces on December 7, two days after the signing o

Agreement, in which delegations of various Afghan political factions c

themselves to cooperation in the establishment of an Interim Authority t

rebuild the Afghan State after decades of conflict.20 The Bonn Agreeme

cally requested the Security Council

to consider authorizing the early deployment to Afghanistan of a United 

mandated force. This force will assist in the maintenance of security for Kabu

surrounding areas. Such a force could, as appropriate, be progressively expa

other urban centres and other areas. . . . It would also be desirable if such a forc

assist in the rehabilitation of Afghanistan’s infrastructure.21

On December 19 two letters arrived at UN headquarters: one from t

Minister for Foreign Affairs and the other from his British counterpar

mer stated somewhat opaquely that the envisaged international secu

“could be deployed under Chapter VI or VII of the Charter.”22 The latter 

the UK’s willingness to serve as the initial lead nation for the propose

ment, known as the International Security Assistance Force (ISAF), wit

missions of (1) assisting the establishment of the Interim Administrat

ghanistan in liaison with the UN Secretary-General’s Special Represe

Kabul; (2) providing advice and support to the Afghan administratio

United Nations in Kabul on security issues; and (3) preparing for the esta

and training of new Afghan national armed and security forces, key infr

development “and possible future expanded security assistance in oth

Afghanistan.”23 The British letter did not refer to specific chapters or art

UN Charter as the legal basis for the proposed deployment, but stated th

be “based on the willingness expressed [on the part of the Afghan admin

to receive such a force and an authorizing Security Council resolution.”24 

also emphasized that the proposed international force “will have a parti

sion authorized by a Security Council resolution that is distinct from 

Enduring Freedom.”25 One day later, the Security Council, acting under C

of the Charter, passed the resolution referred to in the British letter and 

the establishment, for an initial six months, of ISAF.26 Apart from assis

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maintenance of security in Kabul and surrounding areas,

the only oth

pressly mandated to ISAF at this stage was “to provide assistance to help t

Interim Authority in the establishment and training of new Afghan se

armed forces.”28 As far as the use of force by the mission was concerned

lution authorized ISAF troop-contributing nations (TCNs) to take “all 

measures to fulfil its mandate.”29

At this stage, therefore, ISAF was clearly an ad hoc “coalition of th

formed by mandate of the Security Council under Chapter VII of the Ch

the use of force authorized in terms whose broad ambit recalls Article 

Charter (“such action . . . as may be necessary”). The emphasis by the Bri

other TCNs—on Afghan consent to the operation, however, would see

tate against ISAF being an Article 42 enforcement action, since such a

mandatory in nature and do not require host State consent. It would pla

surd to classify the ISAF mission as classic peacekeeping, because of th

actual fighting that was taking place in Afghanistan at the time of the for

deployment and that continues to this day. Perhaps better—albeit still im

analogies might be the UN’s enforcement actions in respect to Korea (

Congo (1960) and Haiti (2004). The first case, that of Korea, was in fact t

stance in which the phrase “coalition of the willing” came to be used in t

of UN enforcement actions. Following the invasion of the Republic 

(ROK) by the forces of the Democratic People’s Republic and the ROK’

the UN for help, Resolution 83 of the Security Council recommended 

Members of the United Nations furnish such assistance to the Republic o

may be necessary to repel the [North Korean] armed attack and to restor

tional peace and security in the area.”30 The result was three years of inte

tilities, but the UN-ROK forces were not organized into a UN mission as 

was their contribution mandatory: it should be remembered that Res

merely recommended that UN member States provide military assista

ROK. Moreover, there was no civilian component and the operation w

warfighting campaign, with none of the reconstruction and developmen

associated with stability operations.

In the second case the United Nations, having received a request for m

sistance from the Prime Minister of the newly-independent Congo in 

Belgian military intervention and the attempted secession of the pr

Katanga, authorized the Secretary-General “to take the necessary steps 

vide the Government with such military assistance as may be necessary u

[Congolese] national security forces may be able, in the opinion of the [C

Government, to meet fully their tasks.”31 A subsequent resolution on 

matter urged “that the United Nations take immediately all appropriate 

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to prevent the occurrence of civil war in the Congo, including arrange

cease-fires, the halting of all military operations, the prevention of clash

use of force, if necessary, in the last resort.”32 Although the resulting for

ganisation des Nations Unies au Congo, was officially a peacekeeping mis

become involved in actively suppressing the Katangese secessionists, th

ing sides in a way that peacekeeping missions do not normally do. A r

complex operation for the time, with large civilian and technical co

alongside military troops, it eventually came to number some twenty tho

ficers and men.

The third case is perhaps the closest analogy to the deployment of ISA

curity Council created the Mission des Nations Unies pour la stabilisatio

(MINUSTAH) in 2004,33 a decade after authorizing a multinational forc

vene and effect “regime change.” MINUSTAH is Brazilian-led and comp

nine thousand personnel, with both military and civilian components

ranging tasks include ensuring a secure and stable environment (includin

ing the Haitian National Police and protecting civilians from imminen

physical violence), supporting the constitutional and political process 

the administration of elections and the extension of State authority and 

ernance at all levels throughout Haiti), the promotion and protection 

rights34 and the facilitation of humanitarian assistance.35 Within that fr

in 2004–05 MINUSTAH personnel executed large-scale military raids, u

force, on the slum of Cité Soleil in the capital city of Port-au-Prince (a

area in which armed gangs roam the streets shooting, looting, raping an

ping), with subsequent allegations of excessive collateral damage;36 MI

soldiers have been killed, also.

In Afghanistan, strategic command, control and coordination of ISA

sumed unilaterally by NATO on August 11, 2003,37 and it remains a NA

tion to the present time—still separate from the American-led OEF, whic

smaller number of TCNs and is not being executed within the framewor

ternational organization. The Afghan government immediately ap

NATO’s assumption of the ISAF mandate and, indeed, addressed a form

to the Security Council to expand the mandate so as to permit deploymen

outside the Kabul area;38 thus host State consent has continued to be a c

ment of the legal basis for stability operations in Afghanistan. This wa

knowledged and formalized by the Security Council in Resolution 15

authorized the expansion of ISAF’s mandate and the continued use of al

measures to fulfill that mandate.39 The ISAF mandate is renewable at ye

vals, the latest Security Council authorization at the time of writing da

September 22, 2008.40 Current troop levels are approximately 55,100, sup

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total of forty

one States under NATO leadership.Particularly promine

ISAF’s activities for some years have been the Provincial Reconstructi

(PRTs), which operate at a local level to rebuild infrastructure.42 With th

ing emphasis on the need to transfer more and more capability and po

field of security to the Afghan National Army (ANA), a major aspect of 

erations now is the Operational Mentor and Liaison Teams, which are d

ANA partner-units across the country, with the objective of tra

mentoring the ANA in its capability for independent operational deploy

ordinating ISAF-ANA liaison and ensuring the provision of enabling s

ANA units.43

The basis of ISAF’s stability operations in international law appears un

the extent that such operations are nowhere mentioned in the UN Char

they exist as a clear concept recognized by customary international la

they are a military doctrinal construct that reflects the realities of the typ

ations being carried out in environments like that of Afghanistan, wher

are ongoing but international efforts are being made to shore up the 

government and increase its capabilities. ISAF is characterized by NATO 

ing from a peace-enforcement mandate under Chapter VII of the Chart

the fact that it is a “coalition of the willing” rather than a UN force.44 In 

it is quite different from the operations mandated in Congo and Haiti 

earlier. Comparisons with the UN-ROK forces fighting in Korea, the or

alition of the willing,” would be more helpful were it not for the fact tha

had no element of stabilization, but were simply charged with fighting a 

war against external aggression by other States: the intra-State, asymm

counterinsurgency aspects so prominent in Afghanistan were entirely 

Korea. Official British pronouncements on the legal authority for ISAF 

but emphasize the combination of an invitation from the democratica

government of Afghanistan and the mandate provided by the UN Securi

in Resolution 1510.45

We may surmise from the above that stability operations are an eme

cept in the international law governing the use of force and are thus effe

generis: they have not been previously recognized in customary law and h

plicit basis in the UN Charter or other treaties—except for ad hoc specifi

(in relation to Afghanistan) the Bonn Agreement. However, appreciatio

legitimacy, through a combination of post-conflict morality and exec

authority, is regarded as essential by States that participate in such op

They in fact represent a peculiar combination of what might be termed “

tervention” and “authorized intervention”—invited by the host State a

rized by an international organization. Therefore, we may suggest that 

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bellum legal basis of stability operations will differ from case to case, bu

mally have in common the following features: (1) an invitation by the in

ally legitimate government of the host State; (2) a mandate (even if post

actual start of the operation) from an international organization, i

United Nations; and (3) a multilateral coalition, either within the framew

existing military alliance such as NATO, or on an ad hoc basis.

Whether stability operations could eventually take place absent one o

the above features must be a matter of some legal uncertainty. In Operati

in May 2000, the United Kingdom unilaterally planned and executed a li

itary intervention in Sierra Leone, initially for the purpose of evacuati

Commonwealth and European Union citizens at risk from the escalatin

the capital, Freetown, from the advancing insurgent forces of the Rev

United Front (RUF). The noncombatant evacuation operation having 

cessfully accomplished, the British government then expanded the op

again, unilaterally—and the troops retained control of the internation

enabled the safe delivery of UN humanitarian aid into Sierra Leone, and 

security and stability in Freetown by patrolling the capital.47 Operation P

terminated on June 15, 2000, although the United Kingdom continued 

involvement in ongoing multinational UN efforts to bring peace and s

Sierra Leone.

The government of Sierra Leone did not comment publicly on the 

tion; neither did the subsequent debates in the British House of Comm

the House of Lords,49 nor in the UN Security Council,50 make any overt 

to the legality of the British intervention. Aside from the United Kingd

States expressed approval of the British action in the Security Counc

Secretary-General Kofi Annan, although he made an oblique reference to 

ited mandate” of the British troops.52 Following its last meeting to discus

lating crisis in Sierra Leone prior to the British deployment, the Securi

had issued a presidential statement in which it “call[ed] upon all States 

tion to do so to assist” the UN forces already present in Sierra Leone, wh

arguably have been a code that could reasonably have been interpreted 

ting State intervention without the need for any further authority from 

although neither the Secretary-General nor any of the States in the C

pressed any views to that effect. None of the Council members that failed 

to endorse the British intervention actually commented on it at all public

real views on the matter must remain a subject of debate; but they clea

esced in it. It should be noted that Operation Palliser was not a stability 

ab initio, although it did acquire characteristics thereof in the course of 

tion. It was not requested by the host State, nor did it have a mandate 

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United Nations, although it was made in support of the UN peacekeepin

already present in Sierra Leone (many of whose personnel were at the t

held hostage by the RUF). The element of morality—or perceived legitim

undoubtedly present, and the operation was lawful on the basis that it wa

humanitarian intervention for the protection of UK nationals and 

whom the United Kingdom had consular responsibilities; but its legality 

ity operation cannot be conclusively affirmed.

Stability Operations and the International Law of Armed Conf

Just as stability operations are not mentioned in the international law 

the use of force, so, as a military doctrinal concept rather than a legal co

such, they are equally absent from the international LOAC. To the exten

bility operations do not involve any actual armed hostilities, in their pe

civilian aspects, they evidently are not governed by the LOAC at all. The 

plies only in armed conflicts, which are generically defined in customar

tional law as existing

whenever there is a resort to armed force between States or protracted armed 

between governmental authorities and organized armed groups or betwe

groups within a State. International humanitarian law applies from the init

such armed conflicts and extends beyond the cessation of hostilities until a 

conclusion of peace is reached; or, in the case of internal conflicts, a peaceful se

is achieved. Until that moment, international humanitarian law continues to 

the whole territory of the warring States or, in the case of internal conflicts, th

territory under the control of a party [to the conflict], whether or not actual 

takes place there.54

It would seem very clear, from the above descriptors, that an arme

continues to take place in certain parts of Afghanistan (primarily the sou

of the country) between the ANA and ISAF on the one hand, and 

(mostly Taliban) on the other. The law which governs the behavior of IS

in other parts of the country, which have seen relatively sustained peac

time now, will be considered further below. But to the extent that an arm

is taking place in certain parts of Afghanistan, it is governed by the LOA

necessary to consider what type of conflict that might constitute, as the 

rules differ to some extent between international and non-internatio

conflicts.

International armed conflicts are defined in Common Article 2 o

Geneva Conventions as

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y y 

more of the High Contracting Parties, even if the state of war is not recognize

of them . . . [and] all cases of partial or total occupation of the territory o

Contracting Party, even if the said occupation meets with no armed resistanc

There is patently no armed conflict between two or more States in Af

since ISAF forces are present in the territory at the invitation of the State 

are assisting the State against the insurgents. Nor could it conceivably b

there is a “partial or total occupation of the territory” by ISAF, since t

require that the territory be under the effective control of the occupier, 

lowing the complete defeat of the lawful sovereign (debellatio) or becau

vading force has temporarily asserted its authority over the territory (b

occupation). In Afghanistan, ISAF has not occupied the territory bellige

à-vis the current Afghan government, with which it is allied; and in t

where it operates, it does so emphatically in support of the Afghan govern

not on its own account.

Protocol I Additional to the Geneva Conventions in 1977 extended th

application in respect to international armed conflicts to “armed conflict

peoples are fighting against colonial domination and alien occupation a

racist regimes in the exercise of their right to self-determination.”55 Ar

then provides for an “authority representing a people engaged against a 

tracting party in an armed conflict of the type referred to in [Article 1(4)

a unilateral declaration undertaking to apply the Geneva Conventions 

tional Protocol I. The Taliban has not sought to take advantage of these p

and even if it did, the argument could be defeated easily enough on the 

the rights and obligations of the 1949 Conventions and the 1977 Additio

col only take effect following a unilateral declaration under Article 96(3) 

of reciprocity, i.e., the high contracting party in question must also hav

the same rights and obligations under the same instruments. In the case o

istan, the State is not a party to Additional Protocol I, and it is hard to see 

provisions could be binding upon ISAF States, even to the extent tha

United Kingdom) they are parties to the Protocol.

If a conflict is not international in nature, then it must—if only by d

non-international in nature. Non-international armed conflicts are define

mon Article 3 of the Geneva Conventions as “armed conflict[s] not of a

tional character occurring in the territory of one of the High Contractin

which is essentially a negative definition. The notoriously high threshol

cation for 1977 Additional Protocol II further requires that the conflict 

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y gg y 

armed forces or other organized armed groups which, under responsible co

exercise such control over a part of its territory as to enable them to carry out s

and concerted military operations and to implement this Protocol.56

Quite apart from the fact that Afghanistan is not a high contracting part

tional Protocol II, it is doubtful, in any case, whether the conditions for th

bility of the Protocol would be met by the present stability ope

Afghanistan. Article 1(1) refers only to the armed forces of the high c

party on its own territory, which would not cover ISAF; and while the T

doubtedly does have control of some territory and carries out “sustained 

certed military operations,” it is most unlikely that it could be consid

“under responsible command” and it has given no sign of willingness 

ment the Protocol.

The default position under the treaties that constitute the bulk of the 

particularly the Geneva Conventions and their Additional Protoco

therefore seem to be that stability operations in Afghanistan that involve 

armed force . . . or protracted armed violence” in terms of the Tadic form

are neither an international nor a non-international armed conflict

speaking. Instead, they amount to “armed conflict not of an internation

ter” in terms of Common Article 3.58 The trouble with that approa

though it may be on the text of the treaties, is that Common Article 3, 

“minimum yardstick” for humanitarian protection in all armed conflicts

nized by the International Court of Justice in the Nicaragua case,59 is n

vague, imprecise and of the utmost generality. It is for this reason that 

approach of the Supreme Court of Israel, to the effect that Israeli milit

tions against Palestinian militants are subject to the law of internatio

conflicts,60 is in the opinion of the present author much to be preferred

The main basis for this finding, that the military capabilities of Palesti

tant organizations are such as to equate their threat with that which migh

from a State’s armed forces, is at least as true in respect to the Taliban as 

spect to Hamas. The Israeli court also concluded that the conflict betw

and the Palestinians should be treated as international in nature for the p

the LOAC on the basis of the transnational nature of the military ope

question: they were crossing the internationally recognized frontiers of t

Israel and were related to the context of Israel’s belligerent occupation of 

tinian territories since 1967.61 Although, as noted above, the aspect of b

occupation is not relevant in the case of ISAF and Afghanistan, the fact 

ment of NATO troops across international frontiers in the territory o

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State could, by analogy, arguably be sufficient to bring ISAF stability o

within the dictum of the Israeli court.

In light of the above theoretical observations, what practical conclusio

drawn as to the LOAC rules or principles to be applied by ISAF during c

erations in Afghanistan? In respect to the conduct of hostilities by ISAF t

force commander has recently directed that “[a]ll responses [to clear and 

danger] must be proportionate and the utmost of care [sic] should be tak

imize any damage.”62 No doubt sensitive to recurrent Afghan complaint

sive collateral damage caused by airstrikes, he added:

We are engaged in a counterinsurgency in an extremely demanding environm

are fighting an enemy that often cannot be identified before he has struck a

once he has, he hides among the civilian population. The battle is often waged 

civilians and their property. We must clearly apply and demonstrate proport

requisite restraint, and the utmost discrimination in our application of firepo

one seeks or intends to constrain the inherent right of self defense of every me

the ISAF force. However, Commanders must focus upon the principles which 

every use of force—be that self defense or offensive fires. Good tactical ju

necessity, and proportionality are to drive every action and engagement; min

civilian casualties is of paramount importance.63

If there are difficulties in applying specific treaty instruments of the LOA

tinational coalition operations, the directive just cited, in its emphasis o

damental principles of necessity, proportionality and discrimination, su

at a minimum the customary rules of the LOAC derived from those prin

applicable.64

In respect to the protection of victims and treatment of persons hors 

it may be suggested in line with the above reasoning that Common Artic

Geneva Conventions applies as the “minimum yardstick” of hum

treatment:

Persons taking no active part in the hostilities, including members of armed fo

have laid down their arms and those placed hors de combat by sickness, 

detention, or any other cause, shall in all circumstances be treated humanely, 

any adverse distinction founded on race, colour, religion or faith, sex, birth o

or any other similar criteria.

Although there have been reports recently of some unhappiness expressed 

service personnel at the fact that wounded Taliban fighters are being tre

same operating theaters and in the same field hospital wards as wound

soldiers,65 it should be noted that this is no less than what is required by 

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Article 3 and Articles 12

15 of Geneva Convention I.As regards civilia

4 of Geneva Convention IV provides that “[p]ersons protected by the C

are those who, at a given moment and in any manner whatsoever, find th

in case of a conflict or occupation, in the hands of a Party to the conf

cupying Power of which they are not nationals.” Since the stipulation in 

disjunctive (“conflict or occupation”), it would seem clear that Afghan ci

tained by ISAF troops could be covered by its provisions. In respect to 

Taliban fighters, the simplest expedient under the scheme established 

Convention III would be either to classify them as prisoners of war (POW

Article 4(A)(2) (which is most unlikely because of their probable failur

the conditions stated therein), or to treat them as if they were POWs pen

dication of their status under the LOAC by a competent tribunal under A

The above discussion has centered on the type of armed conflict, i

subsists during the present stability operations in Afghanistan, and the 

principles of the law of armed conflict to be applied to the conduct of IS

under. But it is entirely possible that in any given place and at any given t

ghanistan, the situation may be stable and secure, and ISAF tr

accordingly not be involved in any armed conflict at all for the purposes 

tion of the LOAC. Although detailed analysis of the law applicable to ISA

situations is essentially beyond the scope of this piece, recent case law 

United Kingdom, arising from obligations under the European Conventi

man Rights (ECHR) as incorporated into UK domestic law by the Hum

Act 1998 (HRA), requires that the likely position should be at least bri

The full implications of the House of Lords decision in R (on the applica

Skeini) v. Secretary of State for Defence,

68 already commented upon by t

author in a previous edition of this series,69 remain a matter of some un

For all that, it seems fairly clear that British troops deployed outside t

Kingdom on combat operations may be subject, in certain circumstan

provisions of the ECHR and the HRA. However, none of the cases decide

the British courts concerning the application of human rights law aris

specific situation of Afghanistan and, indeed, all are materially distin

from the Afghan situation in one way or another. The Al-Skeini case, fo

arose in the context of British operations in Iraq at a time when that co

generally recognized to be in a state of belligerent occupation; as already 

above, belligerent occupation is not relevant to Afghanistan at all. In th

and Saramati cases, the European Court of Human Rights found certa

(and, therefore, potential violations of the ECHR) by the multination

Kosovo since 1999 to be directly imputable to the United Nations itself, r

to the individual TCNs. But that was in the context of an operation over 

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Security Council retained ultimate authority and control, with very spec

tion of tasks (i.e., de-mining) in the relevant Security Council resolutio

territory that had neither sovereignty nor effective government of its o

material time.70 In Afghanistan, by contrast, the relevant resolutions d

cate detailed specific tasks, authority and control rests with NATO and 

Atlantic Council, and Afghanistan remains a sovereign State with a legiti

ernment. Finally, two recent English cases71 concerning liability for hum

violations in circumstances where British troops had actual custody of c

tainees in Iraq again largely turn on detailed obligations under relevan

Council resolutions (which are not applicable in the case of Afghanistan

teraction with broader obligations under customary international law a

fect of Article 103 of the UN Charter.72

The Al-Skeini case is currently on appeal to the European Court o

Rights so its final legal effect is likely to remain of uncertain scope and 

some time yet. At present, therefore, the most that can be asserted on t

current case law is that British forces on stability operations will be requ

ply the ECHR and HRA if they are in belligerent occupation of territory a

sons under their effective control for the purposes of jurisdiction under t

rights instruments (which, as the House of Lords decided in Al-Skeini, 

standard than effective control under the LOAC and will essentially requ

troops to have actual custody of civilian detainees). For reasons explain

these conditions do not obtain in current stability operations in Afgha

are most unlikely ever to do so.

Conclusion: The United Kingdom and Stability Operations

Every State will take a different view on the determination of the existenc

of armed conflict and the nature thereof. Generally the approach of t

Kingdom is to be as vague as possible concerning the legal classification 

operations in which British forces are engaged and to concentrate instead 

gal basis for such operations. Thus, statements from the British Minis

fence on the deployment and use of British troops in Afghanistan do n

their participation in an armed conflict in that country, merely to the fac

are present as part of ISAF under the aegis of NATO, with a brief to aid re

tion and with the approval of the UN Security Council.73 The general p

the United Kingdom is that the determination of a state of armed confli

icy decision to be made by the government and one that “depends upon 

of the parties to the conflict, and the nature of the hostilities.”74 Thus, eac

ual situation needs to be examined separately on the basis of its own 

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actors and the nature of the hostilities

to determine if it amounts to 

conflict or not. This decision may also be made by the judiciary in the co

gal proceedings, if relevant.75

As far as the British position on the nature of an armed conflict is c

again as a matter of both law and doctrine, any such determination mu

on a case-by-case basis, depending on the facts in each given situation.7

basis of the decision for UK authorities will be the international law def

international and non-international armed conflicts referred to above, in 

tion with the facts on the ground. If British forces are in action against th

ment or other official forces of any other State, the situation will be classi

of international armed conflict—a decision made all the easier by the fa

tually every State in the world is now a high contracting party to the Ge

ventions. In any other situation in which British troops are deployed, th

will be regarded as one of de facto non-international armed conflict. T

the official point of view of the United Kingdom, the ongoing hostilities i

istan and Iraq are in effect treated as internal conflicts in which UK forc

ticipating on the side of the governments of those States. The c

Afghanistan after the removal of the Taliban from de facto power in 

2001 is not considered to be a conflict between the British and Afghan 

between Afghan insurgents and the Afghan State, and the latter (with th

of the UN Security Council) invited British troops, along with thos

NATO States, to assist it in combating the insurgency, maintaining or res

and order, and assisting with reconstruction and development.

Although this position might seem counterintuitive—how can for

State be engaged in hostilities in another State, against foreign nationa

conflict not be regarded as an international one?—it is in fact not devo

from a strictly legal perspective. If the British and Afghan States are not a

each other, but there is a conflict going on in Afghanistan, it cannot b

tional according to the definitions in the Geneva Conventions or Addit

tocol I; therefore, by default, it must be “not international.” Whether 

governed by Common Article 3 or by Additional Protocol II will depen

British authorities are concerned, on whether the non-State party to the 

fighting under responsible command, has control of territory and is able 

ment Additional Protocol II.77 Again, this will be a policy decision m

government.78

As for the specific rules of law applicable to British forces in Afghanista

forces are engaged in actual armed hostilities, particular rules of the LOA

ply as above. In respect to targeting operations, the United Kingdom as a 

policy applies the rules concerning target selection and precautions in 

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are contained in Additional Protocol I to all military operations, irrespec

classification of the armed conflict in question.79 In respect to detainees

UN mandate and the general context of stability operations in Afghanist

policy is to surrender all detainees to the Afghan authorities as quickly 

after processing.80 This latter policy may in due course be exposed to 

lenge, on the basis of concerns that the detainees’ human rights may be v

Afghan custody and in light of the UK’s obligation of non-refoulement 

ECHR, as discussed particularly in the very recent decision in Al-Saa

Mufdhi.

81

Finally, is should be borne in mind that under the military law of t

Kingdom,82 British troops remain subject to the ordinary criminal law o

wherever in the world they may be deployed and irrespective of whet

they are deployed in a situation of armed conflict. Throughout the 

“Troubles” in Northern Ireland (1969–2007), the use of force by Brit

providing support to the civil authority was regulated by the ordinary cri

resulting in periodic trials of individual British soldiers (who had been 

using excessive force) on charges of murder or manslaughter. The same 

apply when the deployment is to a territory outside the United Kingdom

Ministry of Defence,

83 it was accepted in principle that aspects of civil law

the torts of negligence and trespass to the person—could also be applicab

ations where British troops deployed on certain types of operation abroa

shown to have a duty of care toward any persons killed or wounded as 

their actions. It was emphasized that this will not be the case in full com

tions,84 but it may very well turn out to be relevant to stability operation

Notes

1. UNOSOM II was created by the UN Security Council with a remarkably bro

that encompassed humanitarian relief operations in Somalia, disarming the various 

storing law and order, and assisting in the establishment of a representative govern

the restoration of infrastructure. S.C. Res. 814, U.N. Doc. S/RES/814 (Mar. 26, 199

sion was violently opposed by the Somali militias from the outset and US troops were 

from the operation after American public opinion turned decisively against their co

volvement as a result of the deaths of eighteen US soldiers and the wounding of ano

three in the so-called First Battle of Mogadishu in October 1993.

2. Following a military coup displacing a democratically elected civilian gove

ensuing political repression which resulted in an exodus of Haitian refugees across th

Sea toward the United States, the Security Council authorized the establishment 

Multinational Interim Force “to use all necessary means to facilitate the departure fr

the military leadership, . . . the prompt return of the legitimately elected President an

ration of the legitimate authorities of the Government of Haiti, and to establish and 

secure and stable environment.” S.C. Res. 940, U.N. Doc. S/RES/940 (July 31, 1994

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11, 2000), available at http://www.debates.org/pages/trans2000b.html.

4. US Department of Defense, Directive 3000.05, Military Support for Stabili

Transition, and Reconstruction (SSTR) Operations para. 4.1 (Nov. 28, 2005), availa

www.dtic.mil/whs/directives/corres/pdf/300005p.pdf [hereinafter DoD Directive 3

also Bob Hubner, Developing Joint Stability Operations Doctrine,ACOMMON PERSPE

2004), at 9.

5. E.g., Robert M. Cassidy, The British Army and Counterinsurgency: The Salienc

Culture, MILITARY REVIEW (May–June 2005), at 53, 59.

6. United Kingdom Ministry of Defence, Joint Doctrine Publication 3-40, Secu

bilisation: The Military Contribution (as of January 2009 available only on a restric

consultation and discussion purposes, not yet adopted as an official document and w

cial standing).

7. Resolution on Stabilisation of Afghanistan: Challenges for the EU and the In

Community para. 2, EUROPEAN PARLIAMENT, Doc. P6_TA(2008)0337 (July 8, 200

8. Id., para. 19.

9. See Peter W. Chiarelli & Patrick R. Michaelis, Winning the Peace: The Req

Full-Spectrum Operations, MILITARY REVIEW (July–August 2005), at 4.

10. US Defense Secretary Donald Rumsfeld declared an end to “major combat” 

stan on May 1, 2003. Kenneth Katzman, Congressional Research Service, Afghanista

Governance, Security, and U.S. Policy, No. RL30588 (Nov. 26, 2008), at 7, availab

assets.opencrs.com/rpts/RL30588_20081126.pdf. On the actual combat situation 

stan, see id. at 22–25.

11. The term “war” has, of course, been largely replaced in international legal dis

1945 with the term “armed conflict.” This terminological shift was connected initi

development of the UN Charter and its move to outlaw any use of force that did no

either an act of self-defense or an enforcement action under Chapter VII of the Chart

changing nature of warfare in the international relations context, it also came increa

flect the reality that most conflicts were no longer being fought between States; and 

they were, the States concerned were no longer willing formally to declare war on eac

preferred to maintain a status mixtus of neither war nor peace. In the jus in bello, the t

conflict” was also explicitly enshrined in the language of the 1949 Geneva Conventio

sequently, their Additional Protocols. (Although, as discussed later in this article, 

struments did retain the concept of “declared war” as part of their scope of applicati

Convention for the Amelioration of the Condition of the Wounded and Sick in Arm

the Field art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, reprinted in DOCUME

LAWS OF WAR 197, 198 (Adam Roberts & Richard Guelff eds., 3d ed. 2000)). For elab

discussion of these trends, see Georg Schwarzenberger, Jus Pacis ac Belli? Prolegomen

ogy of International Law, 37 AMERICAN JOURNAL OF INTERNATIONAL LAW 460, 465

Robert W. Tucker, The Interpretation of War Under Present Internation

INTERNATIONAL LAW QUARTERLY 11 (1951); Philip C. Jessup, Should internationa

nize an intermediate status between peace and war?, 48 AMERICAN JOURNAL OF INTE

LAW 98 (1954); Christopher Greenwood, Scope of Application of Humanitarian L

HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 39, 39–45 (Dieter Flec

LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 70–75 (2000).

12. See Nina M. Serafino, Congressional Research Service, Peacekeeping and Rela

Operations: Issues of U.S. Military Involvement, No. RL33557 (Jan. 24, 2007), at 6, 

http://assets.opencrs.com/rpts/RL33557_20070124.pdf.

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14. DoD Directive 3000.05, supra note 4, para. 3.1.

15. Chairman of the Joint Chiefs of Staff, Joint Publication 3-0, Doctrine for Joint 

at V-1 (Sept. 2006, with change 1, Feb. 13, 2008), available at http://www.dtic.mil/

new_pubs/jp3_0.pdf.

16. Headquarters, Department of the Army, FM 3-07, Stability Operations (200

at http://downloads.army.mil/docs/fm_3-07.pdf.

17. General Sir Richard Dannatt, Chief of the General Staff, Address to the Institute for 

Research, London (Jan. 19, 2009), available at http://www.mod.uk/DefenceInternet/Ab

People/Speeches/ChiefStaff/20090119AddressToTheInstituteForPublicPolicyResearchL

18. Id.

19. See US Department of Defense, Quadrennial Defense Review Report v, 9–1

20. Agreement on Provisional Arrangements in Afghanistan Pending the Re-es

of Permanent Government Institutions, attached to Letter from the Secretary-Gener

to the President of the Security Council, U.N. Doc. S/2001/1154 (Dec. 5, 2001).

21. Id., Annex I, paras. 3–4.

22. Letter dated 19 December 2001 from the Permanent Representative of Afg

the United Nations addressed to the President of the Security Council, U.N. Doc. S

(Dec. 19, 2001), Annex.

23. Letter from the Permanent Representative of the United Kingdom of Great 

Northern Ireland to the United Nations addressed to the President of the Security C

Doc. S/2001/1217 (Dec. 19, 2001), Annex.

24. Id.

25. Id.

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

27. Id.

28. Id., operative para. 10.

29. Id., operative para. 3.

30. S.C. Res. 83, U.N. Doc. S/RES/83 (June 27, 1950).

31. S.C. Res. 143, operative para. 2, U.N. Doc. S/RES/143 (July 17, 1960).

32. S.C. Res. 161, operative para. 1, U.N. Doc. S/RES/161 (Feb. 21, 1961); this 

mented by S.C. Res. 169, operative para. 4, U.N. Doc. S/RES/169 (Nov. 24, 1961).

33. See S.C. Res. 1542, U.N. Doc. S/RES/1542 (Apr. 30, 2004).

34. Id., operative para. 7 (I–III).

35. Id., operative para. 9.

36. See BBC News, UN peacekeepers storm Haiti slum (Dec. 15, 2004), http://n

.uk/1/hi/world/americas/4096841.stm; United Nations Stabilization Mission in Hait

Relating to the Operation Conducted on 06 July 2005 at Cité Soleil, availab

www.un.org/Depts/dpko/missions/minustah/pb060705e.pdf (last visited Feb. 19, 

drew Buncombe, UN admits civilians may have died in Haiti peacekeeping raid, THE 

ENT (London), Jan. 10, 2006, at 25, available at http://www.independent.co.uk/n

americas/un-admits-civilians-may-have-died-in-haiti-peacekeeping-raid-522317.h

37. Letter from the Secretary-General of the North Atlantic Treaty Organizatio

to the Secretary-General, Annex I, U.N. Doc. S/2003/970 (Oct. 2, 2003).

38. Letter from the Minister for Foreign Affairs of Afghanistan addressed to th

General, attached to U.N. Doc. S/2003/986 (Oct. 10, 2003).

39. S.C. Res. 1510, U.N. Doc. S/RES/1510 (Oct. 13, 2003).

40. S.C. Res. 1833, U.N. Doc. S/RES/1833 (Sept. 22, 2008).

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pgp

index.html (last visited Feb. 19, 2009).

42. According to the British Foreign & Commonwealth Office, PRTs

embody a joint military and civilian approach to stabilising Afghanistan. . . . The

together civilian and police experts, under the security umbrella provided 

military, to help extend the authority of the Afghan central government and 

facilitate development and reconstruction. PRTs also aim to support the reform 

Afghan security sector . . . .

FCO, Provincial Reconstruction Teams, http://www.fco.gov.uk/en/fco-in-action/uk-in

security/prt/ (last visited Feb. 19, 2009).

43. See Press and Media Service, NATO HQ Brussels, Fact Sheet, Operational 

Liaison Team (OMLT) Programme – October 2008, available at http://www.nato.in

factsheets/omlt-factsheet.pdf (last visited Feb. 19, 2009).

44. NATO, ISAF Mandate, available at http://www.nato.int/isaf/topics/ma

.html (last visited Feb. 19, 2009).

45. See UK Ministry of Defence, Defence Factsheet, Operations in Afghanistan: 

Briefing 2, available at http://www.mod.uk/DefenceInternet/FactSheets/Operation

OperationsInAfghanistanBackgroundBriefing2.htm (last visited Feb. 19, 2009).

46. See Jared Tracy, Ethical Challenges in Stability Operations, MILITARY REVIEW 

2009), at 86. Tracy’s article asserts, correctly, that Just War doctrine is of no use to co

of the jus ad bellum of stability operations, because it only covers the rationale for go

the first place, while “there is nothing in jus in bello that compels the victorious natio

security, rebuild infrastructure, improve public services, and see to the establishmen

cratic form of government.” Id. at 86. In consequence, Tracy posits that morality, 

law, must be the basis of ethical understandings about what the military should or sh

in post-conflict operations. While I agree with Tracy that morality plays a part in co

military thinking, especially in situations as complex as that of Afghanistan, I con

strictly legal basis for stability operations does (and, indeed, must) exist.

47. See Kwaku Nuamah & I. William Zartman, Intervention in Sierra Leone, i

INTERVENTION: CASES IN CONTEXT FOR THE TWENTY-FIRST CENTURY 133, 145–49 

Lahneman ed., 2004); Eric G. Berman & Melissa T. Labonte, Sierra Leone, in TWE

CENTURY PEACE OPERATIONS 141, 181–82 (William J. Durch ed., 2006).

48. See Hansard (HC Debs) vol. 349, cols. 518–29 (May 8, 2000).

49. See Hansard (HL Debs) vol. 612, cols. 1233–40 (May 8, 2000).

50. See U.N. Doc. S/PV.4139 (May 11, 2000).

51. Id. at 8 (Canada), 9 (Malaysia), 11 (United States), 14 (Namibia), 15 (Ar

(Ukraine & France) and 22 (Portugal). Portugal did not have a seat on the Counci

and attended as the representative of the European Union.

52. Id. at 3.

53. Statement by the President of the Security Council, U.N. Doc. S/PRST/2000

2000).

54. Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for In

Appeal on Jurisdiction, para. 70 (Oct. 2, 1995).

55. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of International Armed Conflicts art. 1(4), June 8, 1977, 1125 

reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 11, at 422, 423.

56. Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of Non-International Armed Conflicts art. 1(1), June 8, 

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pp

inafter Additional Protocol II].

57. Supra note 54.

58. This is the default position supported by a plurality of the US Supreme Cour

to the treatment of detainees captured in the “Global War on Terror” (including in 

theater of operations). Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

59. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, para. 21

In Tadic, the International Criminal Tribunal for the former Yugoslavia also held th

acter of the conflict is irrelevant” in terms of the application of Common Article 3. 

note 54, para. 102.

60. Public Committee Against Torture in Israel et al. v. Government of Israel et a

02, Judgment, para. 21 (Dec. 13, 2006), available at http://elyon1.court.gov.il/files_

007/a34/02007690.a34.pdf.

61. Id., para. 18.

62. Headquarters, International Security Assistance Force, Tactical Directiv

(Dec. 30, 2008), available at http://www.nato.int/isaf/docu/official_texts/Tactical%

_090114.pdf.

63. Id., para. 5.

64. See JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMA

NATIONAL HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II

Parts)). Part I of the Rules (“The Principle of Distinction”) contains many asserted 

rules of the LOAC that would be relevant to the conduct of hostilities by ISAF. These 

distinction between civilians and civilian objects on the one hand, and combatants 

objectives on the other (Rules 1–10); indiscriminate attacks (Rules 11–13); proportio

14); precautions in attack (Rules 15–21); and precautions against the effects of attack

24). Id. at 3–76.

65. See Jo Adetunji, MoD defends hospital treatment for Taliban, THE GUARDIAN 

Jan. 23, 2009, at 2, available at http://www.guardian.co.uk/uk/2009/jan/23/military-a

66. At the time of writing, a Canadian officer is to face a court-martial on a ch

gally shooting a wounded and disarmed Taliban fighter in Afghanistan. Sean Chase, C

dier granted bail, THE INTELLIGENCER, http://www.intelligencer.ca/ArticleDisp

1377810&auth=SEAN%20CHASE,%20SUN%20MEDIA (last visited Feb. 19, 2009

67. Although see further infra, text to note 80, concerning British practice i

persons detained by British forces in Afghanistan. The treatment of captured 

Afghanistan has been the source of much controversy among the ISAF TCNs. See, 

Morelli, Congressional Research Service, NATO in Afghanistan: A Test for the Transatla

No. RL33627 (Oct. 23, 2008), at 16–17, available at http://assets.opencrs.com/rp

_20081023.pdf. This dissension has, moreover, been present from the outset of OEF

gard to the classification of such prisoners upon capture. See Robert Cryer, The 

Friendship: Jus in Bello in Afghanistan,7JOURNAL OF CONFLICT & SECURITY LAW 

(2002).

68. [2008] 1 APPEAL CASES 153.

69. See David Turns, The Treatment of Detainees and the “Global War on Terror”

gal Issues, in INTERNATIONAL LAW AND MILITARY OPERATIONS 199 (Michael D. 

2008) (Vol. 84, US Naval War College International Law Studies).

70. Behrami v. France and Saramati v. France, Germany and Norway, 45 E.

(2007).

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(pp) y 

CASES 332; R (on the application of Al-Saadoon and Mufdhi) v. Secretary of State 

[2008] ENGLAND & WALES HIGH COURT 3098.

72. Whereby obligations arising under the Charter, such as those consequent up

tory Chapter VII resolutions of the Security Council, override inconsistent obligat

from other international agreements.

73. E.g., Adam Ingram, Minister of State, UK Military Operations in Afghanista

to the All-Party Parliamentary Army Group (Oct. 24, 2006), available at http://ww

DefenceInternet/AboutDefence/People/Speeches/MinAF/UkMilitaryOperationsInA

.htm; Defence Factsheet, supra note 45.

74. UK Ministry of Defence, Joint Doctrine Publication 1-10, Joint Doctrine P

Prisoners of War, Internees and Detainees para. 403 (2006) [hereinafter JDP 1-10].

75. In an extradition case in recent years, for example, an English judge was faced 

sian government claim that the situation in Chechnya in 1995–96 “amounted to a rio

lion, ‘banditry’ and terrorism.” It was held, however, that “the events in Chechnya . . 

in law to an internal armed conflict.” In support of that determination, the judge li

lowing factors: “the scale of the fighting—the intense carpet bombing of Grozny with 

100,000 casualties, the recognition of the conflict in terms of a cease fire and a peace t

ernment of the Russian Federation v. Akhmed Zakaev (Bow Street Magistrates’ Cou

2003, at 2) (unreported; copy on file with the author). The factors listed do not apply 

stan, except in respect to the scale and intensity of the fighting.

76. See UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CON

3.1–3.13 (2004) [hereinafter UK MANUAL].

77. As required by Article 1(1) of Additional Protocol II, supra note 56.

78. JDP 1-10, supra note 74, paras. 403–04.

79. The United Kingdom is bound by treaty obligation to apply the Additiona

rules on targeting in all international armed conflicts to which it is a party. These ru

[also] be treated as applicable” in non-international armed conflicts. UK MANUAL

76, para. 15.9.1.

80. UK Ministry of Defence, Joint Doctrine Publication 1-10.3, Joint Doctrine P

Detainees, paras. 116–17 (2006).

81. Supra note 71, paras. 44–53 and 204.

82. Specifically, the Army Act 1955, the Royal Air Force Act 1955 and the Nava

Act 1957 (which will in the course of 2009 be progressively repealed and replaced w

tri-service Armed Forces Act 2006).

83. [2004] ENGLAND & WALES HIGH COURT 786. The court found the Ministry 

to have civil liability in tort for the accidental killing and wounding of four Kosovar A

British soldiers on peacekeeping duties near a demonstration in Priština.

84. Id., paras. 84–105, citing in particular the Australian case of Shaw Savill and A

pany Ltd v. The Commonwealth (1940) 66 C.L.R. 344 (concerning the liability of the 

for a collision on the high seas between an Australian warship and an Australian civ

caused by the navigational negligence of the warship’s officers). Furthermore, th

Lords decision in Al-Skeini, supra note 68, which confirmed that the ECHR and H

plicable to the case of the detainee Baha Mousa, who died in British military custod

on such narrow grounds as at least implicitly to exclude any possibility of similar liab

bat situations, where the troops could not be said to have effective control of the 

question.

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XVI

Stability Operations: A Guiding Framew

for “Small Wars” and Other Conflicts o

Twenty-First Century?

Kenneth Watkin*

[I]f international law is, in some ways, at the vanishing point of law, 

of war is, perhaps even more conspicuously, at the vanishing point of i

tional law.1

Introduction

The ongoing armed conflict in Afghanistan provides a stark exam

challenging and complex operating environment in which the int

community is seeking to establish and maintain the rule of law. Profess

Lauterpacht’s entreaty in the aftermath of World War II for lawyers to a

myriad of law of war issues not covered by the Geneva Conventions wit

of humility is no less applicable today regarding attempts to regulate c

rary conflict.2 Twenty-first-century conflict rarely meets the traditional 

ria of an international armed conflict. Instead, operational lawyers have 

normative framework primarily designed to regulate State-on-State con

creasingly complex security situations involving warfare both within 

across international borders. Such operations range from relative

* Brigadier General, Canadian Forces. The opinions expressed in this article are so

the author and do not necessarily reflect the views of the government of Canada.

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humanitarian relief operations to significant combat operations, such a

Afghanistan involving the multinational forces assisting the Afghan gov

Lawyers should not feel isolated in this endeavor, as the challenge of 

ing conflict and operating in complex security situations is not a uniq

one. Military commanders are also seeking to have doctrine adapted, 

necessary developed, to address such conflicts. The doctrinal goal of atte

categorize operations that do not fit within the classic notions of offen

fensive operations between State armed forces has led to the developm

concept of “stability operations.” This article explores the relationship be

law of armed conflict and what is largely a US-led initiative to place a 

military missions, often occurring at the lower end of the conflict spectr

one overarching doctrinal umbrella.3 The analysis includes an outline of 

of the contemporary normative legal framework in governing operation

to bring stability to failed or failing States.

Stability operations will be assessed in four parts, commencing with 

of the definition, scope and purpose of those operations. A key question 

gree to which such operations are actually new or whether the concept is 

catch-all term for a variety of missions that have always challenged bot

writers and lawyers alike. Secondly, the law governing operations at the 

of the conflict spectrum will be explored. Emphasis will be placed on 

whether international law has adapted to account for such conflict, or if 

military doctrine, focused on State-on-State conflict. Thirdly, the appli

the term “stability operations” in a coalition environment will be explo

the prevalence of such operations, the adoption, or lack thereof, of this 

approach by potential allies provides an important indicator of the ma

potential viability of the concept.

Finally, potential limitations on this forward-thinking American do

proach to addressing the contemporary “war amongst the people”4 will 

ered. While there is a possibility for failure, the significant potentia

categorization of conflict presents in seeking to articulate a realistic 

which to conduct operations in the existing complex security environm

explored.

Stability Operations

The Doctrine

The analysis will now turn to outlining the stability operations doctrine, 

its scope and relationship with doctrine governing combat operations, a

ing stability operations in a historical context regarding previous 

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categorize such conflict. 

Stability operationsis a relatively recent doctr

oped by the prolific US military doctrine production process. In its simp

such operations are defined as “[m]ilitary and civilian activities conduc

the spectrum from peace to conflict to establish or maintain order in 

regions.”5 This definition, found in Department of Defense (DoD) 

3000.05, elevates such operations to “a core U.S. military mission that th

ment of Defense shall be prepared to conduct and support. They shall be 

ority comparable to combat operations and be explicitly addressed and 

across all DoD activities . . . .”6 The goal of these operations is ambitiou

The immediate goal often is to provide the local populace with security

essential services, and meet humanitarian needs. The long term goal is to help 

indigenous capacity for securing essential services, a viable market economy

law, democratic institutions, and a robust civil society.7

Among the activities envisaged are rebuilding indigenous security forc

tional facilities and judicial systems necessary to secure and stabilize th

ment; reviving or building the private sector; and developing rep

governmental institutions.8 The partners for US military forces incl

Departments and Agencies, foreign governments and security forc

and regional international organizations . . . U.S. and foreign nongov

organizations . . . and private sector individuals and for-profit compan

While the directive clearly anticipates that many stability operations ar

formed by indigenous, foreign or US civilian professionals it clearly, an

for many military planners ominously, states: “[n]onetheless, U.S. mili

shall be prepared to perform all tasks necessary to establish or maintain o

civilians cannot do so.”10

The fulfillment of the “stability operations” mission presents a signif

lenge. Indeed some might think it at best aspirational if it were not for th

operations comprise the types of missions presently being conducted, n

the US military, but also by the wider international community. This is e

only in Iraq, which is often cited as the most glaring example of what can 

when mission planning has not fully contemplated or provided for th

nance of order and the re-establishment of governance institutions w

tional fighting has concluded, but also in Afghanistan. In Afghanistan, N

United Nations, international organizations and nongovernmental org

are all faced with the tremendous security, governance and organizati

lenges of trying to rebuild or, perhaps more accurately, build a State. Bo

ghanistan and Iraq missions provide clear examples of the activitie

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operations can encompass, as well as the policy and legal challenges 

Given the post-2001 emergence of the doctrine they appear to have bee

catalysts for its development.

However, there is a significant danger in looking at stability operation

the narrow lens of Iraq or Afghanistan. The activities captured under th

operations doctrine are much broader than those two major conflicts. T

reflected in the foreword to the 2008 US Army Field Manual on “Stabil

tions,” where Lieutenant General William Caldwell notes, “Americ

abroad is unlikely to resemble Afghanistan or Iraq.”11 It is the very brea

stability operations doctrine that highlights not only the complex nature 

isting security challenge, but also the deficiencies in the underlying le

work within which contemporary security operations take place.

The “Catch-All” of Conflict

The complexity of stability operations results from a number of factors, 

the wide scope of activities that fall within its definition. To fully under

scope it is necessary to look at recent US Army doctrine. That doctrine h

gone a significant revision with the 2008 Army manual replacing an earl

produced just in 2003.12 The speed with which this doctrine has undergo

vision appears to reflect not only the dynamic environment within whic

erations are conducted, but also the impact of “lessons learned” informa

incorporated into military doctrine.

While not as specific as its predecessor in terms of identifying types 

tions, the new doctrine indicates that stability operations occur across a 

of conflict from peace to general war and can include

a wide range of stability tasks performed under the umbrella of various ope

environments—

• To support a partner nation during peacetime military engagement.

• After a natural or man-made disaster as part of a humanitarian-based 

intervention.

• During peace operations to enforce international peace agreements.

• To support a legitimate host-nation government during irregular warfare.

• During major combat operations to establish conditions that facilitate post

activities.

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pg g

hostilities.13

Consistent with the 2003 version, the doctrine found in the 2008 man

ages stability operations to be carried out during humanitarian disa

peacetime support to other nations, peacekeeping and peace enforcem

terinsurgency (COIN) operations and post-conflict occupation. Given t

wording provided in the new doctrine there is no reason to believe it wou

include operations identified in the earlier manual, such as support to co

operations, combating terrorism and noncombatant evacuation operat

Significantly, in respect to terrorism, the 2008 doctrine notes that th

threat to American national security “comes not in the form of terrorism 

tious powers, but from fragile states.”15 While terrorism remains a thr

must be addressed in the context of such operations, avoiding the imp

engagement in a “Global War on Terror” will undoubtedly remove a pot

tant with many coalition partners. The reference to humanitarian oper

highlights the degree to which dealing with humanitarian disaster is in

being seen in the same light as insurgency and other challenges to gove

State authorities.16 Both humanitarian and many other types of stabil

tions, which are located well down on the conflict spectrum, often involv

forces in issues related to governance, including law enforcement. What 

be seen is the degree to which military forces can or must adapt their ope

participate in a law enforcement role.

Significantly, the stability operations doctrine takes a bold step in add

primary security challenge of the twenty-first century by elevating such o

in DoD Directive 3000.05 to an equal footing with combat operations

ways this doctrine is revolutionary, visionary and long overdue. The Arm

seeks to reinforce this doctrinal advance by indicating the full spectrum 

tions includes “continuous, simultaneous combinations of offensive, 

and stability tasks.”17 That relationship is depicted as follows:18

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The question remains, however, whether the attempt to elevate stabi

tions to the level of combat operations will win out over the significant 

resistance to changing the focus on traditional “inter-State” armed conf

so, such a change in status will have to address the significant effort that 

quired in terms of training and education. The challenges that arise from 

on armed conflict between States not only has plagued doctrine writer

also impacted on attempts to clearly outline the legal framework govern

tions at the lower end of the conflict spectrum.

A Doctrinal Morass

The strength of military doctrine is that it provides an overall concept

work within which operations are conducted. One of the potential ob

gaining acceptance for the new doctrinal term “stability operations” is th

appear to a cynical observer to simply be an attempt to provide a new n

old problem. For well over a century efforts have been made to categor

scale and lower-intensity conflict. Such terms have included small war

rial policing,20 police action,21 insurgency, low intensity conflict,22 mili

ations other than war,23 peacekeeping,24 peace enforcement,25 three blo

revolutionary war, irregular warfare, war amongst the people and, mor

mosaic war.27

These categorizations can often be used to encompass one or more o

doctrinal terms associated with conflict at the lower end of the conflict 

For example, the 2007 US Army and Marine Corps counterinsurgenc

notes that “insurgency and COIN are two sides of a phenomenon tha

called revolutionary war or internal war.”28 Further, they are “include

broad category of conflict known as irregular warfare.”29

The development and use of the term “mosaic war” in the counteri

manual30 itself highlights the challenge of seeking just one term to categ

temporary complex security operations. “Mosaic war” was introduced to 

that contemporary COIN operations are more complicated than the 1990s 

“three block war” on the basis that such warfare “is difficult for counter-in

envision as a coherent whole.”31 The manual recognizes the term “stabi

tions” and identifies it as an essential component of COIN operations, 

offensive and defensive operations.32 It is within this shifting doctrinal f

that stability operations will have to be interpreted.

The counterinsurgency manual also highlights a further complexi

temporary conflict. In that manual “insurgency” is defined as “an organ

tracted politico-military struggle designed to weaken the control and 

of an established government, occupying power, or other political autho

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increasing insurgent control.

Counterinsurgency operations and as a 

bility operations occur not only during internal armed conflicts, but a

periods of occupation.

Part of the challenge in applying the doctrinal term “stability operatio

the underlying security situations which motivated its creation are no

new, but have been and are the dominant form of warfare. As has been 

by Doctor Lawrence Yates for the Combat Studies Institute Press, “[i]f 

armed forces have fought fewer than a dozen major conventional wars i

centuries, they have, during that same period, engaged in several hundre

undertakings that would today be characterized as stability operations

been noted that in 2006 no State-sponsored opposing armies were e

armed conflict, while the number of civil wars increased.35

Although the potential for armed conflict between States continues, 

denced by the 2008 armed conflict between the armed forces of Russia 

gia, there is increasing recognition within the US Department of Defens

main threat faced by the U.S. military overseas will be a complex hybrid o

tional and unconventional conflicts, waged by ‘militias, insurgent gro

non-State actors and Third World militaries.’”36 It is within this comple

environment that the applicable law must be identified and applied in o

sure that military operations, including stability operations, are conduc

ant to the “rule of law.”

The Law

Unfortunately, it appears that international law has been no more succe

military doctrine in definitively addressing the challenges associated w

lar warfare. Like military doctrine, the law of armed conflict has b

readily developed and applied to regulate conflict at the inter-State leve

of a comprehensive set of legal rules governing conflict outside the 

traditional inter-State warfare has been influenced by a number of in

factors: the post–World War II emphasis on prescribing the recourse 

tween States, difficulty in categorizing conflict at the lower end of th

spectrum and a general reluctance to introduce international law of ar

flict rules to what are often viewed as internal security matters. This in tu

in considerable debate regarding what legal regime governs such confli

of armed conflict or human rights law. The analysis will now turn to 

this challenge.

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Emphasis on Inter

State Conflict

While the immediate post–World War II period saw the almost concurr

opment of the 1949 Geneva Conventions,37 governing aspects of the c

warfare, particular legal emphasis was placed on stopping or limiting fu

State wars. This was perhaps best evidenced by the increasing use of the 

ad bellum and jus in bello, which were designed to separate the legal analy

ing conflict into two distinct analytical spheres.38 The jus ad bellum bran

on the replacement of the balance of power approach to inter-State rela

resurgence of the concept of bellum justum.

39 This is reflected in the UN 

which significantly prescribed the recourse to war.40

The extent to which war between States was to be limited is reflected 

that the very use of the term “war” has become problematic. While “wa

ues as part of the everyday lexicon, including in the newly issued stabi

tions doctrine manual,41 in a legal sense it has often been viewed since W

II as being “outlawed.”42 This sensitivity toward describing conflict as “w

quently reflected in legal articles where that term is often prefaced with 

fier that it is being used in a de facto rather than a de jure sense.43

Even the new term “armed conflict,” introduced in the 1949 Genev

tions to describe a broad range of conflicts between States,44 came with l

that reflected the inter-State bias of the drafters of those Conventions. Th

“armed conflict” is effectively qualified in Common Article 3 of the Co

with reference to “armed conflict not of an international character,” mir

historic approach of distinguishing between public and private war. S

more willing to deal with international armed conflict than comprehens

tify rules to govern its non-international counterpart. In effect, there w

cant armed conflict in terms of scope, frequency and levels of violence to 

rules governing conflict between States were not clearly stated to be a

This emphasis by the international community on inter-State conflict 

standable given the horrific human and material cost of the total wars of 

tieth century. However, the bias toward inter-State conflict has resulte

State conflict not being provided as clear or rigorous a governing legal fra

It is evident there has been an extreme reluctance on the part of State

the law governing armed conflict as it applies to warfare within a State. 

the expansion of Additional Protocol I45 to deal with “national liberat

ments” and what otherwise would be an internal armed conflict has me

nificant resistance. Efforts commenced by the International Committee 

Cross (ICRC) as early as 1912 to introduce law of armed conflict norms 

conflict continued through the immediate post–World War II period to 

ent day with what realistically can only be described as having had limite

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Common Article 3 of the Geneva Conventions, while representing a 

milestone in the twentieth-century efforts to codify the rules governin

conflict, in reality represents the best that could be attained in a broade

have all of the Conventions apply to conflicts “not of an international ch

A quarter century later the success in negotiating Additional Protocol I

pered by both the lack of universal acceptance by States48 and the relat

threshold for its application that leaves significant internal conflict o

scope.49 Notwithstanding a trend in having law of armed conflict treati

both international and non-international armed conflict50 it undoubted

long-standing reluctance by States to outline in codified form the rules 

plied to internal armed conflict which has resulted in efforts by the Int

Criminal Tribunal for the former Yugoslavia (ICTY)51 and the ICRC to 

what customary international law rules should apply to govern internal 

These initial efforts are long overdue. However, there remains a lack of 

regarding the scope and content of the customary law of armed conflict a

to non-international armed conflicts.

One example of the degree to which international law often focuses 

State conflict is reflected in Legal Consequences of the Construction of a W

Occupied Palestinian Territory,

53 where the International Court of Justic

invocation of Article 51 of the UN Charter required attacks that were im

a foreign State and a threat originating outside of occupied territory.54 E

there is a clash between State armed forces the jus ad bellum focus on lim

flict has left considerable room for disagreement and, as a result, confu

when such clashes engage the law of armed conflict. This is evident in 

ment of the threshold of what constitutes an “armed attack.”55 The re

Military and Paramilitary Activities in and against Nicaragua56 to “fro

dents” as a less grave use of force not constituting such an attack raises th

as to whether such incidents could constitute “armed conflict” where 

armed conflict would apply.

The ICTY has stated armed conflict “exists whenever there is resort 

force between States or protracted armed violence between government

ties and organized armed groups or between such groups within a State

assessment, particular attention is paid to the intensity of the fighting and 

nization of the armed groups.58 However, the requirement for “protract

violence between opposing armed forces still results in situations wh

forces may be engaged in fighting where it is not clear there is cons

“armed conflict” exists such that the law of armed conflict would apply

the case, it is not necessarily evident how the alternative legal framewor

national human rights law is equipped to regulate such violence. T

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established by the ICTY can be contrasted with that followed in Abella v. 

where an isolated act of armed violence between State armed forces a

armed group during a two-day period resulted in the application of 

armed conflict.59

While the Nicaragua judgment has garnered considerable criticism, it 

that in the context of the inter-State use of force and in respect to milit

between State and non-State actors there is a wide range of activity tha

neatly fall within the parameters of traditional armed conflict. Such cont

operations can include peacekeeping, noncombatant evacuations, hosta

humanitarian intervention and attacks against terrorist groups. These ty

erations fall within the scope of stability operations. Yet this is an area 

not garnered sufficient attention in terms of clearly identifying the law 

plies to the conduct of those operations.

Identification of the applicable law can be further clouded by reference

ing” language when describing the types of operations. For example, refer

military operations as “police actions” or counterterrorist operations 

territorial law enforcement”60 does not mean such military activity is gov

law enforcement legal framework. Those military operations would, to 

they involve combat, be governed by the law of armed conflict reg

whether such fighting is called a “war.”61

Providing Clarity: Which Norms Apply?

The degree of uncertainty regarding what law applies to the wide range o

tional military operations falling within the scope of stability operatio

raise significant concern. Whether perceived as a “gap” that must be fille

ply a grey zone that must be clarified, the reality is that there is no clea

tional consensus as to what law applies to a wide range of international o

involving the use, or potential use, of armed force by State armed force

It is a problem often addressed by reference to the “spirit and princip

law of armed conflict62 or to applying that law to all military operations a

of direction from national authorities.63 While strong policy statements o

direction provides an important indication that the law of armed confl

apply to operations outside the scope of traditional armed conflict, there 

erable room for confusion and debate, particularly in light of the contin

cation of human rights during armed conflict.64

The confusion results, in part, because of the complexity of such o

Further, the requirement to interface with the civilian population durin

duct of many stability operations can significantly impact on the freed

force. For example, in terms of controlling the use of force the que

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inevitably arise as to whether military forces are using force in a combat 

forcement role. At some point the law of armed conflict as a lex special

reconciled with the application of the norms associated with a human rig

law enforcement framework. It is not completely clear how such reconci

occur if the law of armed conflict is only accepted as applying as a matte

or national direction.

The breadth of the potential tasks assigned to military forces under th

operations doctrine also introduces other significant challenges. The r

tasks inherent in stability operations require an understanding of legal n

standards well beyond a simple familiarity with the law of armed conf

has been significant debate regarding the impact of human rights norms 

riods of occupation65 and even a lack of consensus of what constitutes a

tion at law.66 This can result in a potential broadening of situations in 

interface between occupation law and human rights may have to be con

To the extent the stability operations doctrine encompasses periods o

tion, that debate will continue to have relevance. However, the law of a

flict and human rights interface might be seen to be less relevant t

operations outside the context of occupation, although questions will c

arise as to the impact of Common Article 3, Additional Protocol II or 

international law on human rights law during internal armed conflicts.6

ity to interpret and apply international human rights and host-nation 

raise significant challenges for military commanders and their legal adv

likely will be more comfortable applying the law applicable to armed co

Is it War or Policing?

A particular challenge for military forces isthat stability operations are us

ducted among the people.68 This interface often places those forces in th

situation of policing the local population in addition to fighting organi

groups. This occurs regardless of whether those forces are operating und

framework of occupation during an international armed conflict or in r

multinational coalition effort engaged in combating the counterinsu

Afghanistan.

Perhaps the most graphic evidence of the unwillingness or inability o

national community to deal directly with this challenge is that neither the 

bility for, nor the conduct of, a policing function is directly addressed in 

letter law governing occupation.69 Perhaps the closest reference can be 

Article 43 of the 1907 Hague Regulations,70 which provides that the 

power “shall take all the measures in his power to restore, and ensure

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possible, public order and safety [civil life], while respecting, unless abso

vented, the laws in force in the country.”71

The reality is that where a military force controls territory and comes 

with the local population it may, particularly where the failing State is un

so, be required to perform a policing role. This occurs regardless of w

force is operating on behalf of an occupying power, as part of a multinati

tion or at the invitation of a failing State. Reference to this policing task i

FM 3-07 (2008), where it is noted that “[n]ormally the responsibility for 

ing civil security tasks belongs to the military from the outset of operation

transition, when host-nation security and police forces assume this ro

policing task can be problematic for two reasons. First, military forces may 

trained nor equipped to perform a policing function. Secondly, perform

policing function concurrently with ongoing operations against insurg

can create a complex and, at times, unclear interface between the law of a

flict and the human rights–based norms governing policing.73

At this stage the international community is just coming to terms 

force should be regulated at the lower end of the conflict spectrum. One 

adopted by the Israeli High Court of Justice in the Targeted Killing dec

blended one based, in part, on Israeli “internal law” being applied in 

armed-conflict targeting analysis which has a preference for “[a]rrest, 

tion, and trial.”75 Here the domestic law requirements reflect the law en

norms of international human rights law in favoring capture over killing

native approach is a “situation based” one which looks at the type of 

then applies the appropriate legal regime to control the use of force b

forces. This means the law of armed conflict is applied to incidents of v

lated to the armed conflict, while human rights–based law enforcement 

are applicable to policing scenarios.76

Whichever approach is applied, there are significant doctrine, trainin

erational deployment challenges for military forces. The question is not n

one of “targeting” or deciding when someone is taking a direct part in 

For soldiers manning checkpoints or defending convoys against suicid

or improvised explosive devices their reaction will often be governed by s

rules. The inevitable restriction on the use of force in counterinsurgen

tions points to an application of graduated minimum force not norma

ated with armed conflict. The challenge of reacting to such threats is not 

the present lack of clarity in the law, particularly in light of the decis

asked of young coalition and International Security Assistance Force sold

ating in complex security situations such as Afghanistan.

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The United States and Coalition Partners: On the Leading Edge or 

Having outlined a number of the doctrinal and legal challenges associate

stability operations doctrine, there is also the question of how this US do

resonate in a coalition environment. Given the likelihood that the Un

will continue to conduct operations as the dominant member of interna

alitions, it is evident that a common understanding among coalition p

what stability operations are will be helpful in ensuring interoperability

the military doctrine of the United States, as the major State on the int

stage regarding military capability, is a significant factor in terms of d

customary international law.

In considering the approach of allied countries toward stability ope

appears that the United States has a much more robust, well-developed 

tious vision for such operations. For example, the Canadian Forces (CF

separate stability operations doctrine, although there is doctrine for CF o

generally, as well as peace support operations, humanitarian operation

relief operations and noncombatant evacuation operations, that would 

the US stability operations doctrine umbrella.77

As often occurs in situations where military forces are confronted 

operational challenges, Canadian doctrine appears to be driven by ex

gained at the tactical level in Afghanistan. The Canadian Army has deve

manuals that refer to stability operations.78 The new doctrine focuses on 

insurgency, with stability operations being addressed at the tactical leve

activities comprise four parts: offensive, defensive, stability and enabl

tions, thereby setting out “full-spectrum operations.”79 Stability oper

defined as “a tactical activity conducted by military and security force

conjunction with other agencies to maintain, restore or establish a clim

der.”80 To the extent these manuals reflect the focus of Canadian For

tions, it is clear this approach is not as comprehensive as that adop

United States.

At this stage NATO does not appear to have embraced stability oper

separate strategic- or operational-level concept. It is perhaps telling tha

NATO Handbook refers to the Afghanistan mission as an international p

ing effort.81 One of the factors that may impact on a wider allied adopt

term “stability operations” is found in the indication that part of the ra

the US development of a separate stability operations doctrine may be th

connotation attached to “peace operations.” As is noted in a 2006 Con

Research Service Issue Brief for Congress, “[p]eacekeeping has been the t

generic term.... More recently, in an attempt to capture their amb

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complexity, and perhaps to avoid the stigma of failure attached to pea

they have become known as ‘stabilization and reconstruction’ operation

simply ‘stability’ operations.”82

As a result, there may be a number of factors that may impact on the 

which coalition partners embrace the US concept of stability operati

peacekeeping and other peace support operations do not necessarily hav

negative connotation outside the United States. Therefore, it may not n

be evident to other States why a new term is required. Second, the very “

and complexity” of such operations may cause other military forces t

more narrowly focused mission-specific doctrine. Third, other nations 

ther be involved, nor plan to get involved, in as wide a variety of stability o

as the US doctrine appears to cover. Accordingly, potential coalition par

continue to use separate doctrinal terms such as peace support operatio

manitarian operations. Finally, the traditional approach of State milita

cusing on State-versus-State conflict may still be prevalent among the 

allies of the United States. This in turn may limit any acceptance that stab

ations have an equal status with traditional combat operations. None of 

tors will necessarily preclude the conduct of coalition operations within 

stability operations doctrine. However, it may mean that the US militar

to be prepared to interface with coalition partners on a different level (e.g

and with terms that reflect only a partial acceptance by other 

subcomponents of the overarching stability operations doctrine.

The Future

The question remains as to whether this newdoctrine is simply the latest 

a long history of short-lived efforts to definitively categorize unconvent

flict. While it is likely an answer to that question will only be provided wi

sage of time, it is clear the US military has taken a significant step in cr

stability operations doctrine. It is an approach which seeks to break the 

reluctance to address warfare outside of State-versus-State conflict. C

with other publications such as the counterinsurgency manual and the R

Handbook: A Practitioner’s Guide for Judge Advocates,83 there is evidence 

effort continues to be placed on developing doctrine and guidance that s

addresses unique aspects of counterinsurgency operations, the domina

warfare in the twenty-first century.

Unfortunately, it does not appear the doctrine can point to a comp

clearly articulated legal framework for such operations. Perhaps this is un

able given the inability of the international community to definitivel

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grips with this challenge. This is graphically evidenced by the continued r

a “spirit and principles” or national-direction approach to applying 

armed conflict to operations conducted at the lower end of the conflict 

However, until clear direction on the legal framework can be provided

danger such operations will be conducted at the “vanishing point” of 

armed conflict. In this respect it could be the complexity and ambiguity i

the scope of stability operations doctrine that sows the seeds of its down

Yet such an outcome can be avoided. The doctrine itself is visionary 

shines a spotlight on the very type of operations that dominate the int

scene today. Given the number, scope and complexity of such operatio

fact that international intervention, either under a UN mandate or othe

common occurrence, it may be time for a clear statement by States as to w

armed conflict applies beyond general reference to Common Articl

Geneva Conventions, Additional Protocol II (if it applies) or the suggest

the ICRC customary law study. It may very well be that the credibility o

trine of “stability operations,” which is based upon establishing legitima

rule of law, will itself be dependent on such a definitive articulation of 

norms.

As is noted in FM 3-07 (2008), intervening forces “carry with them 

perception of legitimacy that is further strengthened by consistent pe

conforming to the standards of national and international law.”84 Howe

this new doctrine is matched by an effort by individual States, and by th

tional community generally, to comprehensively outline the law of arm

that applies to conflict outside the context of inter-State warfare, and 

how that law interfaces with the human rights norms, the ability of arme

conform with such legal standards may be at risk.

Notes

1. Hersch Lauterpacht, The Problem of the Revision of the Law of War, 29 BR

BOOK OF INTERNATIONAL LAW 360, 382 (1952).

2. Id. at 381–82.

3. Joint Doctrine Division, J-7, Joint Staff, Joint Publication 1-02, DOD Diction

tary and Associated Terms (as amended through 26 August 2008), availabl

www.dtic.mil/doctrine/jel/doddict/ (doctrine is defined as “[f]undamental principl

the military forces or elements thereof guide their actions in support of national ob

authoritative but requires judgment in application”).

4. RUPERT SMITH, THE UTILITY OF FORCE: THE ART OF WAR IN THE MODERN 

(2007).

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py pp

Transition, and Reconstruction (SSTR) Operations (2005), at 2, para. 3, availab

www.dtic.mil/whs/directives/corres/pdf/300005p.pdf.

6. Id. at 2, para. 4.1.

7. Id. at 2, para. 4.2.

8. Id. at 2, paras. 4.3.1–4.3.3.

9. Id. at 3, para. 4.4.

10. Id. at 2, para. 4.3.

11. Headquarters, Department of the Army, FM 3-07, Stability Operations (200

at http://downloads.army.mil/docs/fm_3-07.pdf [hereinafter FM 3-07 (2008)].

12. Headquarters, Department of the Army, FM 3-07 (FM 100-20), Stability Op

Support Operations (2003), available at http://cgsc.cdmhost.com/cgi-bin/showfile.exe?

=/p4013coll6&CISOPTR=69&filename=70.pdf#search=%22Stability%20Operati

%20Support%20Operations%22 [hereinafter FM 3-07 (2003)].

13. FM 3-07 (2008), supra note 11, at 13, para. 1-11.

14. FM 3-07 (2003), supra note 12, at 1-4 (in that manual stability operations 

also to include peace operations, foreign internal defense (e.g., counterinsurgency), 

sistance, humanitarian and civic assistance, support to insurgencies and show of fo

15. See FM 3-07 (2008), supra note 11, Foreword.

16. See PHILIP BOBBITT, TERROR AND CONSENT: WARS FOR THE TWENTY-FIRST 

(2008) (In referring to the risks posed to civilians by nuclear or biological terrorism

that “these risks are in several important dimensions indistinguishable from those 

the terror that is the consequence of genocide and ethnic cleansing and also of m

earthquakes, pandemics, tidal waves, and hurricanes”).

17. FM 3-07 (2008), supra note 11, at 2-1, para. 2-1.

18. Id.

19. See C.E. CALDWELL, SMALL WARS: THEIR PRINCIPLES AND PRACTICE 21 (U

Nebraska Press, 3rd ed. 1996) (1906); see also US Marine Corps, Small Wars Man

States Marine Corps 1 (1940) and MAX BOOT, THE SAVAGE WARS OF PEACE: SMALL 

THE RISE OF AMERICAN POWER xiv (2002).

20. See CHARLES W. GWYNN, IMPERIAL POLICING 3–4 (1934). (The author ide

types of “police duties” performed by UK military forces: small wars, acting in aid 

power and “imperial policing.” The latter type of operation occurs “when normal 

does not exist, or has broken down to such an extent that the Army becomes the ma

the maintenance of or for the restoration of order.”).

21. See Josef Kunz, The Chaotic Status of the Laws of War and the Urgent Necess

Revision, 45 AMERICAN JOURNAL OF INTERNATIONAL LAW 37, 54 n.41 (1951) (relyin

from P.C. JESSUP,AMODERN LAW OF NATIONS 188–89 (1948), where he also says, 

take to assume that the acceptance of the concept of an international police force . . . 

sequent abolition of the concept of ‘war’ in a legal sense, eliminates the necessity 

regulation of the rights and duties of those who are active participants in the strugg

22. See Headquarters Department of the Army and Air Force, FM 100-20/AFP 3-

Operations in Low Intensity Conflict, at ch. 1 (1990) (superseded by FM 3-07 (200

turn was replaced in 2008), available at http://www.globalsecurity.org/military/lib

army/fm/100-20/10020ch1.htm (“Low intensity conflict is a political-military confr

tween contending states or groups below conventional war and above the routine, pe

petition among states. It frequently involves protracted struggles of competing pr

ideologies. Low intensity conflict ranges from subversion to the use of armed force. I

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ments. Low intensity conflicts are often localized, generally in the Third World, but 

gional and global security implications”).

23. See FM 3-07 (2003), supra note 12, at 1-1 (where the relationship between st

ations and military operations other than war is noted as follows: “[t]he army condu

trum operations to accomplish missions in both war and military operations oth

(MOOTW). Full spectrum operations include offensive, defensive, stability, and sup

tions .... Offensive and defensive operations normally dominate military operatio

well as some smaller scale contingencies. On the other hand, stability operations and 

erations predominate in MOOTW that may include certain smaller scale contin

peacetime military engagements”).

24. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 307–08 (4th ed. 

25. Id. at 310–15 (for an explanation of non–Article 42 enforcement actions).

26. Charles C. Krulak, The Strategic Corporal: Leadership in the Three Block Wa

MAGAZINE, Jan. 1999, at 3, available at http://www.au.af.mil/au/awc/awcgate/us

_corporal.htm (“Modern crisis responses are exceedingly complex endeavors. In B

and Somalia the unique challenges of military operations other than war (MOOTW

bined with the disparate challenges of mid-intensity conflict. The Corps has describe

flicts as the three block war, contingencies in which Marines may be confronted wi

spectrum of tactical challenges in the span of a few hours within the space of three a

blocks”).

27. See Headquarters, Department of the Army & Headquarters, Marine Corps C

velopment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), at 1-8

available at http://www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf.

28. Id. at 1-1, para. 1-2.

29. Id.

30. Id. at 1-8, para. 1-37.

31. Id.

32. Id. at 2-5, para. 2-18 (“COIN draws heavily on a broad range of the joint for

ities and requires a different mix of offensive, defensive, and stability operations fr

pected in major combat operations”).

33. Id. at 1-1, para. 1-2 (emphasis added).

34. LAWRENCE A. YATES, THE US MILITARY’S EXPERIENCE IN STABILITY O

1789–2005 (2006), available at http://www-cgsc.army.mil/carl/download/csipubs/y

35. See Daniel Smith, World at War(The Defense Monitor, Center for Defense I

Washington, D.C.), Jan./Feb. 2007, http://www.cdi.org/PDFs/DM_JanFeb07.pdf.

36. Ann Scott Tyson, Gates Criticizes Conventional Focus At Start of Iraq War, W

POST, Sept. 30, 2008, at A04.

37. Convention (I) for the Amelioration of the Condition of the Wounded 

Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention 

Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Arm

Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention (III) Relative to the T

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; and Convention (IV

the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U

[hereinafter Fourth Geneva Convention]; all reprinted in DOCUMENTS ON THE LA

(Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 222, 244 and 301, respec

38. See Robert Kolb, Origin of the Twin Terms Jus Ad Bellum/Jus in Bello, INTE

REVIEW OF THE RED CROSS 553, 560–62 (1997). (The terms jus ad bellum and jus in 

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World War II.).

39. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 

“which every sovereign entity may decide on the occasion for war”).

40. CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 5 (2d ed. 

41. See FM 3-07 (2008), supra note 11, at 1-1, para. 1-1. See also OXFORD ENGL

NARY 950 (Catherine Soanes ed., 2002) (“war n. 1 a state of armed conflict between d

tions, states, or armed groups. 2 a sustained contest between rivals or campa

something undesirable: a war on drugs. . . .” (emphasis added)).

42. Quincy Wright, The Outlawry of War and the Law of War, 47 AMERICAN JOU

TERNATIONAL LAW 365 (1953).

43. See Christopher Greenwood, The Concept of War in Modern International 

TERNATIONAL AND COMPARATIVE LAW QUARTERLY 283, 283 (1987).

44. See COMMENTARY I GENEVA CONVENTION FOR THE AMELIORATION OF T

TION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD 32 (Jean S. Pict

[hereinafter ICRC COMMENTARY]. A similar commentary was published for each 

Geneva Conventions. Because Articles 2 and 3 are identical—or common—to each C

however, the commentary for these articles is also identical in each of the four com

(“Any difference arising between two States and leading to the intervention of armed 

armed conflict within the meaning of Article 2, even if one of the Parties denies the e

state of war. It makes no difference how long the conflict lasts, or how much slau

place.”).

45. See also Protocol Additional (I) to the Geneva Conventions of 12 August 19

lating to the Protection of Victims of International Armed Conflicts art. 3(b), June 8

U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 37, at 422.

46. SeeICRC COMMENTARY, supra note 44, at 38–48 (for an outline of the effort

provisions of the Geneva Conventions apply to internal armed conflict). See also LIN

THE LAW OF INTERNAL ARMED CONFLICT 23–29 (2002).

47. See Protocol Additional (II) to the Geneva Conventions of 12 August 1949, a

to the Protection of Victims of Non-International Armed Conflicts art. 1(2), June 8

U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 37, at 48

48. See International Humanitarian Law—Treaties & Documents, http://ww

ihl.nsf/INTRO?OpenView (last visited Feb. 4, 2009) (where 164 countries are iden

States party to Additional Protocol II).

49. See MOIR, supra note 46, at 101–03.

50. See, e.g., the Chemical Weapons Convention; the Amended Protocol II to t

tion on Certain Conventional Weapons; the 1997 Convention on the Use, Stockpili

tion and Transfer of Anti-Personnel Mines and on Their Destruction; the 1998 Ro

and the 1999 Second Protocol to the 1954 Hague Convention for the Protection 

Property.

51. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeal on Jurisdiction, pa

2, 1995), reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32 (1996), availab

www.un.org/icty/tadic/appeal/decision-e/51002.htm.

52. See JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY 

TIONAL HUMANITARIAN LAW (2005) (2 volumes).

53. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, 2004 I.C.J. 136 (July 9), reprinted in 43 INTERNATIONAL LEGAL 

428

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Wall].

54. Id.(The court distinguished the terrorist threat by Palestinian groups as diffe

Qaeda attacks on the United States on the basis that Israel exercises “control” over th

Territories.).

55. See GRAY, supra note 40, at 145–49 and DINSTEIN, supra note 24, at 195–96 

sion of the Nicaragua case and the issues raised by the concept of “frontier incident

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

57. See Tadic, supra note 51, para. 70.

58. See Prosecutor v. Boskoski, Case No. IT-04-82-T, Judgement, para. 176 (Ju

available at http://www.icty.org/x/cases/boskoski_tarculovski/tjug/en/080710.pdf.

59. Juan Carlos Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 

Ser.L./V./II.95, doc. 7 rev. 271 (1997), reprinted in 13 INTER-AMERICAN YEARBOOK 

RIGHTS 602 (Inter-American Commission on Human Rights ed., 1999). This approa

the subject of critical comment because it does not take into account the duration 

frontation. See LIESBETH ZEGVELD, THE ACCOUNTABILITY OF ARMED OPPOSITION 

INTERNATIONAL LAW 137–38 (2002).

60. DINSTEIN, supra note 24, at 247 (where the term “extra-territorial law enfo

used to describe a form of self-defense where recourse is made to cross-border c

against terrorists and armed bands).

61. See Kunz, supra note 21, at 54 n.41 (“It is a mistake to assume that the accep

concept of an international police force . . . with its subsequent abolition of the con

in a legal sense, eliminates the necessity for the legal regulation of the rights and du

who are active participants in the struggle”).

62. See Office of the Judge Advocate General, Canadian Forces Doctrine Manual

Armed Conflict at the Operational and Tactical Level, B-GJ-005-104/FP-021 17-1

(2001), available at http://www.cfd-cdf.forces.gc.ca/sites/page-eng.asp?page=3481 

of Armed Conflict hyperlink) (“[t]oday a significant number of armed conflicts in w

may be involved are non-international in nature. As stated, the law applicable to suc

limited. It is CF policy, however, that the CF will, as a minimum, apply the spirit and p

the LOAC during all operations other than domestic operations”) and the United 

Secretary-General, Bulletin on the Observance by United Nations forces of intern

manitarian law, U.N. Doc. ST/SGB/1999/13, reprinted in 38 INTERNATIONAL LEGAL 

1656 (1999) (see section 1 where it is indicated the “fundamental principles and rule

tional humanitarian law” are applicable in situations of armed conflict, which includ

ment actions, or in peacekeeping operations when the use of force is permitted in sel

For background to the introduction of the “spirit and principles” approach to applyi

tarian law during United Nations operations, see MOIR, supra note 46, at 76–77.

63. Department of Defense, Directive 2311.01E, DoD Law of War Program, par

(“Members of the DoD Components comply with the law of war during all arm

however such conflicts are characterized, and in all other military operations”).

64. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

para. 26 (July 8); and Wall, supra note 53, para. 106.

65. See Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Ter

1967, 84 AMERICAN JOURNAL OF INTERNATIONAL LAW 97–102 (1990).

66. See Adam Roberts, What Is a Military Occupation?, 55 BRITISH YEAR BOOK O

TIONAL LAW 249, 250 (1984) (“[o]ne might hazard as a fair rule of thumb that ev

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the inhabitants, some or all of the provisions of the law on occupations are applicab

67. See MOIR, supra note 46, at 193–231 (for a discussion of the interface bet

armed conflict (Common Article 3 and Additional Protocol II) and human rights l

68. See SMITH, supra note 4, at 3–4; and FM 3-07 (2008), supra note 11, at 1-2, p

reference to war among the people).

69. The Fourth Geneva Convention does recognize the continuance in force o

the occupied territory and the maintenance of the status of public officials or judge

70. Convention No. IV Respecting the Laws and Customs of War on Land an

Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, 36 Sta

No. 539, reprinted in DOCUMENTS ON THE LAWS OF War, supra note 37, at 69.

71. Annex, supra note 70, art. 43. The reference here to “civil life” comes from 

version, which some have suggested was incorrectly phrased as “safety” in the first En

lation. See EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 7 n.1 (20

on E.H. Schwenk, Legislative Power of the Military Occupant under Article 43, Hague 

54 YALE LAW JOURNAL 393 (1945)).

72. See FM 3-07 (2008), supra note 11, at 2-10 to 2-11, para. 2-46.

73. See Kenneth Watkin,Controlling the Use of Force: A Role for Human Rights No

temporary Armed Conflict, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 1, 24–

74. See Public Committee Against Torture in Israel et al. v. Government of Israe

769/02, Judgement (Dec. 13, 2006), available at http://elyon1.court.gov.il/files_eng/

a34/02007690.a34.pdf.

75. Id., para. 40.

76. Kenneth Watkin, Maintaining Law and Order during Occupation: Breaking 

tive Chains, 41 ISRAEL LAW REVIEW 175, 192–95 (2008).

77. See CF Doctrine Hierarchy, available at http://www.cfd-cdf.forces.gc.c

Resources/dgfda/Joint%20Doctrine%20Hierarchy/doctrineHierarchy.gif.

78. Land Operations, B-GL-300-001/FP-000 (Jan. 1, 2008) [hereinafter Land 

Manual]; and Counter-Insurgency Operations, B-GL-323-004/FP-003 (Dec. 13, 20

79. Land Operations Manual, supra note 78, at 3-18 to 3-20.

80. Id. at 3-18.

81. PUBLIC DIPLOMACY DIVISION, NATO HANDBOOK 155 (2006).

82. Nina M. Serafino, Congressional Research Service, Peacekeeping and Rela

Operations: Issues of U.S. Military Involvement, No. IB94040 (2006), availabl

www.fas.org/sgp/crs/natsec/IB94040.pdf.

83. Center for Law and Military Operations, The Judge Advocate General’s L

School & Joint Force Judge Advocate, United States Joint Forces Command, Rule of 

book: Practitioner’s Guide for Judge Advocates i–ii (July 2007) (see id. at ii where it is 

Handbook “is not intended to serve as US policy or military doctrine for rule of law 

[Center for Law and Military Operations] has neither the resources, nor more imp

mission, to propose or institute doctrine on a topic upon which no consensu

achieved.” However, it is also noted, id. at i, that military lawyers have been engaged i

projects since the invasion of Afghanistan in 2001 and “have been on the cutting ed

fort to bring stability and rule of law support to the embryonic and fragile democr

ments in both Afghanistan and Iraq. . . .”).

84. FM 3-07 (2008), supra note 11, at 1-7, para. 1-32.

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XVII

The International Legal Framework f

Stability Operations:

When May International Forces Attack 

Detain Someone in Afghanistan?

Marco Sassòli*

I. Introduction

Whether we call the involvement of international forces in Afgha

sistance to the Afghan government or a peace operation, a stab

ation, part of the “war on terror,” an armed conflict, a foreign occupatio

affair, and whatever the legal basis of such involvement may be, two o

important tactical and humanitarian issues confronting international 

when they may attack or detain an “enemy.” Concerning detention, the 

are on what legal basis and according to what procedure the decision to 

detain may be taken. Two branches of international law govern attack a

tion: international humanitarian law (IHL) (or the law of armed conflic

ternational human rights law (IHRL). For both branches, first, a q

applicability arises: IHRL applies in every circumstance and to everyon

the armed forces of States bound by IHRL when acting outside their nati

tories? As for IHL, it certainly applies to armed forces acting extraterrito

* Professor of International Law at the University of Geneva, Switzerland, an

Professor at the universities of Quebec in Montreal and of Laval, Canada. This articl

published in volume 39 of the Israel Yearbook on Human Rights (forthcoming 2009

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it applies only to armed conflicts and its rules on the issues of attack and 

are probably different in international and non-international armed con

ond, when applicable, for both IHL and IHRL the question arises as to 

allow (or rather, do not prohibit) international forces to deprive enemi

life or their liberty. Third, if both branches apply and lead to differing res

two issues, we must determine which of the two prevails.

In this article, I will try to discuss these three questions, putting the em

the substance of the rules, as others in this volume have extensively dis

classification of the conflict(s) in Afghanistan under IHL.

When I refer to the “enemies” who may or may not be attacked or de

der the rules to be discussed, I will call them “fighters.” Who may be attac

tained for what reasons is obviously one of the questions with which 

framework must deal; even if the answer to that legal question were cle

the greatest practical difficulties would remain: to identify whether som

longs to those categories. However, this article does not deal with thi

harmless civilians who may become incidental victims of attacks or are m

targeted, or with civilians who oppose the government or the internati

ence without using force. These people are obviously covered by the rule

plored, but they are not the hard cases and IHL and IHRL do not prescrib

rules on them. The same is true for attacks directed against people who a

tack international forces while they are engaged in such attacks. The diff

with regard to the legality of attacks and the legal basis for their detentio

sons whom international forces believe to be members of armed groups, 

Qaeda and the Taliban. I will explain why I consider that mere membersh

groups is not sufficient, but that the person must also have a fighting fun

a legitimate target of attack.1

II. Applicability of IHL to the Situation in Afghanistan

It is uncontroversial that in 2008 the level of violence and the degree of 

tion of the Taliban and, at least in Afghanistan, of Al Qaeda are sufficien

make IHL applicable, even if the higher requirements of intensity and or

of the parties of IHL of non-international armed conflicts are applied.2 T

States agrees, indeed, that the conflict between the Taliban and the Afgha

ment is not of an international character and that this characterization 

tered by the fact that the latter is heavily supported (if not kept 

international forces. The only construction under which the entire con

ghanistan could still (in 2008) be claimed to be of an international chara

be to recall that the conflict was indeed international in 2001 because it w

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between the United States and the Taliban (who constituted the de fac

ment of Afghanistan) and to consider that this conflict continues until th

the Taliban. Most, including the International Committee of the R

(ICRC), consider that the international conflict turned into a conflict no

ternational character in 2002 when the Karzai government was first app

the Loya Jirga3 and then elected (since this new government of Afgha

quested the foreign forces to support its continuing fight against the Tali

mally, however, one could consider that, until the Taliban are completely 

the conflict between the United States and the Taliban maintains its int

character and the United States (or the UN Security Council) could no

tered this classification by establishing, recognizing or concluding agreem

a new local government in the territory it occupied following its invasi

ever, this is certainly not the thesis of the United States and it encounter

legal problems, inter alia, that it is difficult to consider free elections a cha

duced by the occupying power, that the UN Security Council has given i

to the new arrangements and that UN Security Council resolutions pr

any other international obligation under Article 103 of the UN Charter

The United States argues, however, that beside the non-internatio

conflict against the Taliban, a separate international armed conflict exist

on terror” against Al Qaeda and its associates.

As far as treaty law is concerned, international armed conflicts are m

erned by the Geneva Conventions and Additional Protocol I.5 Neither t

States nor Afghanistan is a party to Protocol I, but they are bound by 

rules of the latter that correspond to customary international law. Th

Conventions apply to international armed conflicts. Common Articl

Conventions states that they “shall apply to all cases of declared war or of 

armed conflict which may arise between two or more of the High C

Parties.” Only States can be parties to the Conventions. Al Qaeda is n

Therefore, the Conventions do not apply to a conflict between the Un

and its allies, on the one hand, and this non-State actor, on the other ha

customary international law, there is no indication confirming what se

the view of the US administration, i.e., that the concept of internatio

conflict under customary international law is broader.6 State practice 

juris do not apply the law of international armed conflict to conflict

States and certain non-State actors. On the contrary, and in conformit

tenets of the Westphalian system, States have always distinguished bet

flicts against one another, to which the whole of IHL applied, and other a

flicts, to which they were never prepared to apply those same rules, but 

limited humanitarian rules.

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III. The Applicability of International Human Rights Law

1. Does International Human Rights Law Apply Extraterritorially?

International forces in Afghanistan do not act in their own territories

therefore bound by IHRL only if its obligations bind a State even when 

yond that State’s territory. Article 1 of both the American Convention o

Rights and the European Convention on Human Rights (ECHR) clearly 

the State parties must secure the rights listed in those Conventions to 

within their jurisdictions. Under the jurisprudence of the European Co

man Rights (ECtHR) this includes an occupied territory.7

On the universal level, under the International Covenant on Civil an

Rights (ICCPR) a party undertakes “to respect and to ensure to all i

within its territory and subject to its jurisdiction the rights recognized . . .

phasis). This wording and the negotiating history lean toward understan

tory and jurisdiction as cumulative conditions.8 The United States 

therefore deny that the Covenant is applicable extraterritorially.9 The Int

Court of Justice (ICJ),10 the UN Human Rights Committee11 and other S

however of the opinion that the Covenant equally applies in an occu

tory.13 From a teleological point of view it would indeed be astonishing 

sons whose rights can neither be violated nor protected by the territoria

any protection of their fundamental rights against the State who can ac

late and protect their rights.

2. How Much Control Is Necessary to Be under the Jurisdiction of a F

State?

If IHRL applies extraterritorially, the next question that arises is when a p

be considered to be under the jurisdiction of a State. Analysis of this 

level of control a State must exercise in order to be bound by its interna

man rights obligations—has often been divided according to treaty. 

there has been a certain amount of convergence in the interpretation o

tion in recent cases.14 The Inter-American Court of Human Rights and 

American Commission on Human Rights have tended to adopt broa

what may give rise to a State having extraterritorial jurisdiction. The w

case of Alejandre v. Cuba illustrates that physical control over territory 

through having “boots on the ground” is not necessary for jurisdiction 

the Inter-American system. In that case, the Commission held that the 

came within Cuban jurisdiction when Cuba’s airplanes fired on anothe

flying in international airspace.15

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As for the European Court of Human Rights, from its strictest test art

Bankovic—that a State must exercise effective control over territory by b

ically present on that territory in order to have jurisdiction16—the E

moved, over the past decade, to applying a standard that does not alwa

“boots on the ground.” In Issa, the ECtHR looked for effective territorial 

found, on the facts, that Turkish forces in northern Iraq did not exhibit th

control and therefore, in its decision on the merits, held that in fact the I

cants’ claim was inadmissible.17 In a very recent case, however, the ECtH

that jurisdiction can flow from facts not unlike those in Alejandre v. Cu

deed, in Bankovic). Pad v. Turkey involved a skirmish on the Turkish-Ir

der in which seven Iranians were killed by Turkish helicopter gunships. 

held that

it is not required to determine the exact location of the impugned events, given 

Government had already admitted that the fire discharged from the helicop

caused the killing of the applicants’ relatives. . . . Accordingly, the Court finds 

victims of the impugned events were within the jurisdiction of Turkey at the 

time.18

This conclusion is clearly at variance with Bankovic, where, as one com

put it, “the Court found that jurisdiction could not arise by the mere fac

ping bombs on individuals.”19 It would be specious if, in the future, the C

to distinguish Pad exclusively on the grounds that Turkey had not form

tested that it had jurisdiction over the applicants’ relatives.

Conceivably, for all treaties, jurisdiction could arise through a State’s 

torial exercise of control over persons. However, it seems likely that cou

times also look for effective control over territory. The factors identif

ECtHR in Issa as indicators of such control were (1) the number of sold

ground, (2) the size of the area controlled, (3) the degree of control exer

whether checkpoints, etc. were established) and (4) the duration of the 

control.20 The first and third factors are valid indicators to measure som

nebulous as “control”; however, with all due respect to the Court, the s

fourth factors bring little to the analysis. All other things being equal, it 

to imagine why it would make a difference whether foreign forces contro

area or only a village. The fourth factor, the duration of control, may be 

a Court reviewing actions long after the fact, but it fails to provide State

forces or agents with a clear indication of when they begin to be respons

specting (and possibly even protecting) the human rights of the peop

care.

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In my view, a solution could be found through a functional approa

guishing the degree of control necessary according to the right to be p

Such an approach would reconcile the object and purpose of human rig

tect everyone with the need not to bind States by guarantees they cann

outside their territories and the protection of the sovereignty of the territ

(which may be encroached upon by international forces protecting hum

against anyone other than themselves). For our two issues, this func

proach would mean that international forces have to respect the right 

person simply by omitting to attack that person as soon as those forces c

that right by their attack, while they would have to respect the procedur

tees inherent in the right to personal freedom only as long as they physic

the person. The applicability of IHRL obviously does not yet determine w

guarantees or those of IHL prevail in a given situation. All on the contra

specialis issue only arises if both branches apply to a certain situation.

3. What If Jurisdiction Is Shared by Different Coalition Partners and 

Government?

If IHRL applies extraterritorially, even if we knew exactly what degree of 

necessary to put someone under the jurisdiction of a State, in the case o

operations such as those in Afghanistan additional questions arise. Can 

of control necessary to exercise jurisdiction result from cumulative con

by different States, including the host State? In such a case, does every co

State have jurisdiction? These questions have been raised but not exhau

amined before the ECtHR. In Hussein v. Albania et al., the Court held th

plicant, Saddam Hussein, had failed to furnish sufficient proof that the r

States had control over Iraq or over him at the time of his detention 

from which jurisdiction would flow.22 The Court seemed to suggest tha

tion would not automatically exist for States participating in a “coalitio

US, when the impugned actions were carried out by the US, when secu

zone in which those actions took place was assigned to the US and when 

command of the coalition was vested in the US.”23 Given the last-m

specificities, there is no prima facie reason to exclude that collective con

suffice to establish jurisdiction. A case that provides more guidance on t

Hess v. United Kingdom, which dealt with an application by Rudolph He

his release from Spandau Prison. At the relevant time, the prison was 

control of the four Allied powers in Germany following the Second W

The European Commission on Human Rights, in determining whether 

came within the UK’s jurisdiction, accepted a priori the premise that 

could apply to the activities of British forces in Berlin. However, it 

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account the fact that decision

making power regarding the prison was 

mous agreement between all four Allied powers. As such, it held that:

. . . the United Kingdom acts only as a partner in the joint responsibility which 

with the three other Powers. The Commission is of the opinion that the joint a

cannot be divided into four separate jurisdictions and that therefore the 

Kingdom’s participation in the exercise of the joint authority and consequent

administration and supervision of Spandau Prison is not a matter “wi

jurisdiction” of the United Kingdom, within the meaning of Art. 1 

Convention.24

This holding would seem to exclude the possibility of jurisdiction flo

collective control during a multilateral operation. However, as one auth

served, the Commission was particularly troubled by the lack of executiv

making power of the UK in regard to the prison.25 Logically, if a State pa

in a multilateral operation nevertheless retains executive decision-mak

over its forces and personnel, there is no reason to deny jurisdiction.

Moreover, any agreement between States participating in a multilate

tion affecting that kind of decision-making power could run afoul of a S

gations. In Hess, the Commission wrote:

The conclusion by the respondent Government of an agreement concerning S

prison of the kind in question in this case could raise an issue under the Conven

were entered into when the Convention was already in force for the res

Government. The agreement concerning the prison, however, came into 

1945.26

On the two issues dealt with in this article, I conclude as follows. No 

ing State may make a deliberate causal contribution to a violation of the r

of any person. However, a contributing State that is not an occupying p

not exercise the level of jurisdiction over a person that would oblige it 

that person’s right to life against other coalition partners or the host S

plying this reasoning to Afghanistan, the coalition and the Afghan autho

lectively exercise effective control, but, forthe international coalition par

does not give rise to the positive obligations associated with the right to l

protect it against third parties). The responsibility for ensuring the resp

aspect of the right to life remains with the Afghan government, which, to 

to it, may have a due diligence obligation regarding the conduct of coalit

As for detainees, even a State which is not an occupying power must offe

son it actually detains, independently of whether it also arrested that 

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not,

the rights that detainee has during that phase of detention; how

rights may also be respected by measures actually taken by another coal

ner or the host State.

In my view, the same analysis must be made when different coalitio

and a host State are bound by differing treaty obligations. Every State has 

with its own obligations concerning its own contribution. In addition, a 

ally detaining a person must protect the rights of that person even aga

not bound to grant such rights.

4. Who Could Proceed to Admissible Derogations?

Under normal circumstances, a State’s ability to derogate from its oblig

der human rights treaties is limited to situations in which the security o

itself is in jeopardy.29 Can this requirement be met when a State’s for

volved in a multilateral operation abroad? Lord Bingham of Cornhill w

Jedda that the power to derogate

may only be exercised in time of war or other public emergency threatening t

the nation seeking to derogate, and only then to the extent strictly require

exigencies of the situation. . . . It is hard to think that these conditions could eve

when a state had chosen to conduct an overseas peacekeeping operation, 

dangerous the conditions, from which it could withdraw.30

Lord Bingham went on to add: “The Secretary of State does not conten

UK could exercise its power to derogate in Iraq (although he does not ac

could not).”31

In my view, one cannot simultaneously hold a State accountable beca

certain level of control abroad and deny it the possibility to derogate bec

is no emergency on that State’s own territory. An emergency on the territ

the State has a certain limited control must be sufficient.

5. What Is the Impact of a UN Mandate?

Normally, the legality or illegality of an exercise of jurisdiction does not 

the applicability of IHRL.32 No one denies that human rights most typi

to the most lawful exercise of jurisdiction: territorial jurisdiction. The EC

that the responsibility of a State also arose “when as a consequence of m

tion—whether lawful or unlawful—it exercises effective control of an ar

its national territory.”33 Theoretically, UN Security Council resolutions 

der Article 103 of the UN Charter, prevail over IHRL obligations of Sta

ever, the extent to which they may do so is controversial). In my 

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derogation from IHRL by the UN Security Council must, however, be e

Al-Jedda, the UK House of Lords considered that UN Security Council R

1546, authorizing “internment where . . . necessary for imperative reaso

rity” qualified the UK’s obligations under Article 5 of the ECHR.34 In m

wording of this Resolution is not explicit enough to be considered a m

UN member States not to provide such internees with the procedural g

they are obliged to offer under IHRL. In any case, the UN Security Coun

tions concerning Afghanistan contain no language similar to that of R

1546 which could be claimed to govern the admissible reasons of deten

In my view, UN Security Council resolutions must be interpreted 

possible in a manner compatible with the rest of international law. The m

the Security Council to maintain international peace and security includ

thorization of the use of force. How such force may be used is, however

by other branches of international law, including IHRL. No one would c

UN Security Council resolution urging States to prevent acts of terroris

itly authorizes torture or summary executions. Beyond that, it is often a

even the Security Council must comply with ius cogens35 and the human 

cussed here belong to ius cogens.

A distinct question relates to situations where foreign forces are parti

a peace operation in a way that their acts can be attributed only to the U

tions. A much-criticized recent judgment suggests that in such a case th

State will not have jurisdiction for the purposes of its obligations und

rights treaties.36 Indeed, this judgment runs counter to explicit statement

and to practice.37 In my view, here as elsewhere, everything depends on t

may well be that a State contributes troops to a peace operation in such a 

no longer has control over what those troops do and that the exclusive 

and control is with the UN, with another international organization or w

State. In fact, this is the situation the drafters envisaged in Articles 43–47 

Charter, which have remained a dead letter. In reality, contributing Stat

very large degree of control over their forces. Everyone familiar with IS

ghanistan knows of the national caveats discussed in other contributio

volume. If UN Security Council resolutions and NATO rules allow a co

State to opt out of a certain kind of operation, out of any given operatio

certain methods to implement them, that State has enough control over 

its own troops to be responsible for their conformity with its human rig

tions. The case of joint control by a State and an international organizat

dealt with similarly to the case of joint control by several States.38 Howev

ber State of an organization has a continuing responsibility to ensu

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organization, to which it delegates conduct that may have implications i

human rights, complies with the corresponding standards.39

IV. The Substantive Rules of International Humanitarian La

1. On Attacks

a) The Traditional Answer of Humanitarian Law of International Armed 

In international armed conflicts, members of armed forces belonging to 

the conflict are combatants. Combatants may be attacked at any time 

surrender or are otherwise hors de combat, and not only while actually th

the enemy. Combatants are part of the military potential of the enem

therefore always lawful to attack them for the purpose of weakening that 

Beside combatants, civilians, too, may be attacked, but only for such tim

directly participate in hostilities.40 The traditional understanding is th

restricts the use of force against combatants to only those circumstances 

cannot be captured. Within IHL, this viewhas been challenged based on 

ple of military necessity as a restriction on all violence41 and the proh

treacherous killings.42 However, neither of these understandings has been 

into actual battlefield instructions, and even less into actual battlefield be

Even attacks directed at combatants are subject to the proportionality 

but in IHL this principle protects only civilians incidentally affected44 an

require a proportionality evaluation between the harm inflicted on the c

and the military advantage drawn from the attack. The same is true for p

ary measures in attack, which must only be taken for the benefit of t

population.

b) The Uncertain Answer of the Treaty Rules of IHL of Non-internationa

Conflicts

In contradistinction to international armed conflicts, it is not clear under 

law of non-international armed conflicts when an enemy fighter may b

Indeed, neither Article 3 common to the Geneva Conventions nor Protocol 

“combatants” because States did not want to confer on anyone in non-in

armed conflicts the right to participate in hostilities and the correspon

batant immunity. Those provisions prohibit “violence to life and person

ular murder,” directed against “persons taking no active part in h

including those who have ceased to take part in hostilities.45 Specifically a

the conduct of hostilities, Article 13 of Protocol II prohibits attacks again

“unless and for such time as they take a direct part in hostilities.”46

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One may deduce from these rules, and from the absence of any m

“combatants,” that everyone is a civilian in a non-international armed co

that no one may be attacked unless he or she directly participates in 

However, first, it would be astonishing that Article 13 uses the term “ci

stead of a broader term such as “person.”47 Second, if everyone is a ci

principle of distinction, which is a fundamental principle of IHL, becom

ingless and impossible to apply.48 Third, Common Article 3 confers its 

on “persons taking no active part in hostilities, including members of arm

who have laid down their arms or are otherwise hors de combat.” The lat

the phrase suggests that for such members of armed forces49 it is not su

no longer take an active part in hostilities to be immune from attack. T

take additional steps and actively disengage. Fourth, on a more practic

prohibit government forces from attacking clearly identified fighters unl

ter engage government forces is militarily unrealistic as it would oblige t

purely reactively while facilitating hit-and-run operations by the reb

These arguments may therefore lead to the conclusion of the ICRC Com

Protocol II that “[t]hose belonging to armed forces or armed groups m

tacked at any time.”50

This conclusion that fighters may be attacked, as in international ar

flicts, at any time, until they disengage from the armed group, may be 

with the text of the treaty provisions in two ways. First, “direct participati

tilities” can be understood to encompass the simple fact of remaining a m

the group51 or of keeping a fighting function.52 Second, fighters can be c

not to be “civilians” (benefiting from the protection against attacks unle

such time as they directly participate in hostilities).53

However, this conclusion raises difficult questions in practice. How d

ment forces determine membership in an armed group while the ind

question does not commit hostile acts? How can membership in the arm

be distinguished from simple affiliation with a party to the conflict for 

group is fighting—in other words, membership in the political, educatio

manitarian wing of a rebel movement? In my view, one of the most convi

nues is to allow attacks only against a person who either actuall

participates in hostilities or has a function within the armed group to co

that constitute direct participation in the hostilities.54

c) No Answer Is Provided to the Question by Customary Humanitarian L

According to the ICRC study, Customary International Humanitarian L

Customary Law Study), in both international and non-international ar

flicts, “[a]ttacks may only be directed against combatants.”55 The defini

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term 

combatantoffered for noninternational armed conflicts make

however, rather circular, if it simply “indicat[es] persons who do not enjo

tection against attacks accorded to civilians.”56 Other rules of that Stud

that “[c]ivilians are protected against attack unless and for such time as 

direct part in hostilities”57 and civilians are defined as “persons who are 

bers of the armed forces.”58 The commentary to the rules must however 

while “State armed forces may be considered combatants . . . practice is n

to the situation of members of armed opposition groups,”59 but rather “a

as to whether . . . [they] are considered members of armed forces or civi

they are the latter, an imbalance between such groups and governmen

forces could be avoided by considering them to take a direct part in host

tinuously.61 Customary law is therefore as ambiguous as the treaty pro

the crucial question whether fighters in non-international armed confli

attacked in the same way as combatants in international armed conflict

d) Arguments for and against an Analogous Application of the Rule Appl

International Armed Conflicts

The general tendency is to bring the law of non-international armed 

closer to that of international armed conflicts, which has also the positi

fect of rendering largely moot controversies on whether a given conflict, 

conflict against Al Qaeda in Afghanistan, is international or non-interna

on what law to apply in conflicts of a mixed nature. In the last twenty years

prudence of international criminal tribunals, the influence of human righ

even some treaty rules adopted by States have brought the law of non-int

armed conflicts closer to the law of international armed conflicts. In 

fields where the treaty rules still differ, this convergence has been ratio

claiming that under customary international law, the differences betwe

categories of conflicts have gradually disappeared. This development h

its provisional acme with the publication of the ICRC Customary L

which claims, after ten years of research on “State practice” (in the form 

declarations rather than actual behavior), that 136 (and arguably even 1

161 rules of customary humanitarian law—many of which parallel rule

col I, applicable as a treaty to international armed conflicts—apply equa

international armed conflicts.62 Even those who remain skeptical whe

practice has truly eliminated the difference to the extent claimed su

questions not answered by the law of non-international armed conflic

dealt with by analogy to the law of international armed conflicts, ex

very nature of non-international armed conflicts does not allow for suc

ogy (e.g., concerning combatant immunity from prosecution and the 

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occupied territories).

There is, in addition, no real difference between 

international armed conflict between the United States and the Taliban 

the international armed conflict between those same two parties in 2001. 

soldiers in the former conflicts to capture enemies whenever this is feasib

in the latter) is unrealistic on the battlefield. In addition, the decision 

enemy may be shot at must be taken by every soldier on the ground in a sp

and cannot be left to commanders and courts (as can the decision to in

son, discussed later). Clear instructions must exist. Whenever possible, 

ing of soldiers must be the same in view of international and non-int

armed conflicts in order to create automatisms that work under the stress of 

On the other hand, strong arguments call into question the appropriate

plying the same rules as in international armed conflicts. Many non-int

armed conflicts are fought against or between groups that are not well s

It is much more difficult to determine who belongs to an armed group 

belongs to governmental armed forces. Persons join and quit armed gr

informal way, while members in governmental armed forces are incorpo

formally dismissed. As armed groups are inevitably illegal, they will do 

not to appear as such. Claiming that fighters may be shot at on sight may 

put many civilians in danger,64 whether they are sympathizers of the 

members of the “political wing,” belong to the same ethnic group or si

pen to be in the wrong place at the wrong time. In addition, while in int

armed conflicts a clear distinction exists between law enforcement by 

against civilians and conduct of hostilities by combatants against co

there is no equivalent clear distinction in non-international armed con

In conclusion, neither the rules nor the context of IHL of non-int

armed conflicts provides a clear answer to the question when an enemy fi

be attacked.

2. On Detention

a) The Traditional Answer of Humanitarian Law of International Armed 

In peacetime as during armed conflict, persons may be detained in view of 

crime or based upon conviction of a crime. What is more specific to armed 

that enemies may also be interned without criminal charge as a preventati

measure. In international armed conflicts this is the essence of prison

(POW) status. Prisoners of war may be interned without any further 

until the end of active hostilities.65 IHL equally allows for internment o

“if the security of the Detaining Power makes it absolutely necessary”66 o

perative reasons of security”;67 however, it requires an assessment to det

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civilian poses a threat to security. Thus, Convention IV mandates proced

followed for reviewing the internment of civilians, whether they are al

territory of a party to the conflict or interned in occupied territory, desig

type of review body—either an administrative board or court—and pro

appeal and periodic review.68 Finally, it should be noted that unlawful co

is a grave breach of Convention IV.69

b) The Uncertain Answer of Conventional Humanitarian Law of Non-inte

Armed Conflicts

Conventional IHL applicable to non-international armed conflict presc

persons deprived of liberty for reasons related to the armed conflict must 

and it prescribes judicial guarantees for those who are prosecuted for o

lating to the conflict (such as individual non-State actor participation i

flict, which always constitutes a crime under the domestic law of the Sta

by the conflict), but it does not clarify under which circumstances and 

procedures a person may be interned for security reasons. Yet the drafter

col II recognized the possibility of internment taking place in non-int

armed conflicts, as demonstrated by the specific reference to internment 

5 and 6.70

c) Customary Humanitarian Law

According to the ICRC Study, based upon State practice, which obviously 

divided into practice under IHL, and practice under IHRL, customary IHL 

the arbitrary deprivation of liberty in both international and non-int

armed conflicts.71 This rule is interpreted through significant reference 

Applying the two prongs of the principle of legality, the Study states tha

for internment must be previously established by law and stipulates t

dural requirements: (1) an “obligation to inform a person who is arres

reasons for arrest” and (2) an “obligation to provide a person deprived 

with an opportunity to challenge the lawfulness of detention,” described 

called writ of habeas corpus.”72 When trying, as I am attempting to do in t

bution, to determine whether IHL or IHRL regulates a certain issue, a “

IHL rule” based on IHRL obviously does not provide a useful starting 

determining the lex specialis.

d) Apply IHL of International Armed Conflicts by Analogy?

IHL of non-international armed conflictsindicates that internment occu

international armed conflict,73 but it contains no indication of how it is t

lated. Such regulation is necessary so that internment can practically t

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One could therefore apply IHL of international armed conflict to non

int

armed conflicts by way of analogy.74 For members of an armed group w

ing function captured by international forces in Afghanistan, the close

analogy with the regulation of international armed conflicts appears 

POWs, who may be detained without any legal procedure until the en

hostilities.75 The ICRC Customary Law Study indicates the appropriaten

plying by analogy the standards of Convention III to those designated as 

ants” in non-international armed conflict.76 Most arguments in fav

against such an analogy are similar to those mentioned above in relatio

admissibility to attack fighters. Some arguments are, however, specific 

tention issue. In favor of POW treatment, it must be mentioned that A

Convention III encourages parties to non-international armed conflicts 

into force by special agreements, all or part of the other provisions of t

Convention.” If the parties so agree, they could therefore apply the rul

vention III to fighters, which do not require any individual procedure to de

the internment. As special agreements to the detriment of war victims ar

der IHL,77 application of POW status is therefore not considered as detr

fighters. Even without an agreement, a government could obtain the sa

i.e., POW status of fighters, by resuscitating the concept of recognition 

ligerency of an armed group, which concept has fallen into disuse.78

Arguments against this analogy are, first, that upon arrest, as at the m

an attack, it is more difficult to identify fighters than soldiers of armed 

another State. After an attack, an erroneous decision cannot be correcte

either the member of international forceswho erroneously did not attack is 

person who was erroneously attacked is dead. After an arrest, however, t

classification can be made by a tribunal, which will only have its say if th

person is not classified as a POW.79 Second, while in international arme

POWs must be released and repatriated at the end of active hostilities, tha

in time is more difficult to determine in a non-international armed con

repatriation is logically impossible in non-international armed confl

when the end of active hostilities is determined, no obligation for a gove

release rebels at that moment exists in IHL.81

It has been suggested elsewhere that even for enemy fighters, the analo

be made with the regime established for civilians to be interned for imp

curity reasons rather than with the regime of POWs.82 Indeed, the rules 

to international armed conflict generally apply only to protected-perso

ries, such as POWs or civilians, while no such categories exist in non-int

armed conflict and what counts is each individual’s conduct. The precise 

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that conduct can only be established through a procedure. We had to 

“the practicality of this approach, however, does not make it legally bin

V. The Substantive Rules of International Human Rights Law

1. On Attacks

Human rights treaties prohibit arbitrary deprivation of life. Most of th

specify when a killing is arbitrary. Only the ECHR specifies that not to be 

the killing must be “absolutely necessary:

“a. in defence of any person from unlawful violence;

“b. in order to effect a lawful arrest or to prevent the escape of a 

lawfully detained;

“c. in action lawfully taken for the purpose of quelling a riot or insurrec

In its case law, outside of armed conflicts, the ECtHR has admitted the 

of killing a person whom authorities genuinely thought was about to 

bomb, but found the insufficient planning of the operation to violate th

life.85 By and large, other human rights bodies take the same approach.86 T

sic Principles on the Use of Force and Firearms by Law Enforcement Of

vide an authoritative interpretation of the principles authorities must res

using force in order not to infringe the right to life. Those principles limit 

firearms to cases of self-defense or defense of others against the imminen

death or serious injury, of prevention of the perpetration of a particula

crime involving grave threat to life, of arrest of a person presenting such a d

resisting the law enforcement official’s authority, or of prevention of his 

cape, and only when less extreme means are insufficient to achieve these ob

The intentional lethal use of firearms is only admissible “when strictly 

able in order to protect life.” In addition, law enforcement officials

shall . . . give a clear warning of their intent to use firearms, with sufficient tim

warning to be observed, unless to do so would unduly place the law enfo

officials at risk or would create a risk of death or serious harm to other per

would be clearly inappropriate or pointless in the circumstances of the incide

It must however be stressed that the Basic Principles are addressed 

“who exercise police powers, especially the powers of arrest or detention

authorities are included, but only if they exercise police powers,88 whic

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interpreted as meaning, e contrario, that the rules do not bind military a

engaged in the conduct of hostilities.

Theoretically, IHRL is the same in international, in non-internationa

side of armed conflicts. The right to life is in addition not subject to de

except, under the ECHR, in case of “lawful acts of war.”89 The classic cas

a human rights body has assessed the right to life in the context of an arm

is the Tablada case. In that case, a group of fighters attacked an army base 

tina. The Inter-American Commission on Human Rights held that “ci

who attacked the Tablada base . . . whether singly or as a member of a gro

subject to direct individualized attack to the same extent as combatants” a

benefit of the proportionality principle and of precautionary measures

exclusively applied IHL (of international armed conflicts) to those attac

civilian bystanders and attackers who surrendered were considered to be

the right to life. The Commission did not raise the issue whether the fight

have been arrested rather than killed whenever possible.

In the Guerrero case, the Human Rights Committee found Colombia 

bitrarily deprived persons who were suspected—but even by the subse

quiry not proven—to be kidnappers and members of a “guerrilla organ

their right to life. The police waited for the suspected kidnappers in 

where they had believed the victim of a kidnapping to be held, but w

found empty. When the suspected kidnappers arrived, they were sho

warning, without being given an opportunity to surrender and despite th

none of the kidnappers had fired a shot, but simply tried to flee.91

The jurisprudence of the ECtHR in cases involving the right to life in 

international armed conflict in Chechnya includes statements which ap

quire that in the planning and execution of even a lawful action again

any risk to life and the use of lethal force must be minimized.92 These s

were not limited to the protection of the lives of civilians, but the actual 

the case were civilians. In all other cases in which human rights bodies a

applied the right to life in armed conflicts not of an international cha

persons killed were either hors de combat or not alleged to have been 

However, fighters are very often killed, e.g., bombed, while they are n

combat. Nevertheless, no such case has been brought before an interna

man rights monitoring body. Some observers have deduced from the 

any such case law that such killings do not violate the right to life, a 

brought before the Inter-American system by a surviving relative of a FA

ber being “unthinkable.”94

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The limited body of case law is thus not really conclusive on the que

what IHRL requires from government authorities using force against fig

there is no clear indication that the principles applicable in peacetime do 

2. On Detention

Human rights provisions regulating deprivation of liberty can be found 

ety of different treaties that stipulate that a person may only be deprived 

“on such grounds and in accordance with such procedure as are esta

law.”95 All treaties prohibit arbitrary arrest or detention,96 but only Artic

ECHR specifically and exhaustively enumerates the admissible reasons for 

a person of his/her liberty. Besides conviction, education of minors, men

drug addiction, vagrancy and immigration control, these include (

5(1)(c)) not only detention on remand, but also, as an alternative, 

“when [the detention] is reasonably considered necessary to prevent hi

ting an offence . . . .” Under the jurisprudence of the ECtHR, the latter 

could be seen as implicitly allowing for internment, i.e., administrative 

to hinder an individual from committing a concrete and specific offenc

situation, however, the person must also be brought (under Art

“promptly before a judge or other officer authorised by law to exerci

power and shall be entitled to trial within a reasonable time or to releas

trial” (emphasis added). Therefore, a majority of writers conclude t

5(1)(c) covers only detention in the framework of criminal proceedings 

fore does not allow internment (except in a state of emergency).98 The 

dence of the ECtHR is however not clear on this issue and certain obiter 

to indicate the contrary.99

The ICCPR does not mention specific reasons justifying internmen

quires in Article 9(1) that, even when all other conditions are fulfilled, t

ment not be arbitrary. The Human Rights Committee underlines t

drafting history . . . confirms that ‘arbitrariness’ is not [simply] to be equ

‘against the law’, but must be interpreted more broadly to include elem

appropriateness, injustice, lack of predictability and due process of law.”

rest and detention must be reasonable and necessary.101

Internment of enemy fighters would therefore certainly be admis

without a trial under the ICCPR, while the jury is still out for the ECH

both instruments, however, two procedures must be complied with for a 

be lawfully deprived of his/her liberty. First, an arrested person must be 

informed of the reasons for arrest.102 Second, any person deprived of lib

be entitled to take proceedings before a court, in order that that court m

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without delay on the lawfulness of his detention and order his release if 

tion is not lawful.”103

As such, the right to personal freedom is subject to possible derogatio

of a situation threatening the life of the nation, if such derogation is ne

face the situation, is proportionate to the threat and is not incompatible 

international obligations of the derogating State (such as, in case of arme

obligations stemming from IHL). Furthermore, the derogation must b

declared and communicated to the other State parties to the treaty fro

State wishes to derogate. In addition, under the ICCPR, the derogatio

lead to or consist of discrimination on inadmissible grounds. Under the 

Convention on Human Rights, judicial guarantees essential for the pro

non-derogable rights may not be subject to derogations. The Inter-

Court of Human Rights has therefore found that the access to habeas c

amparo proceedings are non-derogable rights.104 Similarly, the Hum

Committee considers that the right to have any arrest be controlled by 

body may never be derogated from because it constitutes a necessary mec

enforcement for such non-derogable rights as the prohibition of inhu

degrading treatment and the right to life.105 The ECtHR accepted in th

certain violations of the right to a judicial remedy, provided for in A

ECHR, were covered by the right to derogation under Article 15, ECH

however submitted that the Court would not necessarily decide so toda

national practice shown above has since developed toward recognizing 

derogable nature of habeas corpus. As a possible first step in this dire

Court held that a period of fourteen days before being brought before a j

thority, together with lack of access to a lawyer and inability to commun

family and friends, was contrary to the Convention despite a derogat

State concerned.107 As for customary IHRL, it is widely claimed that the r

beas corpus is non-derogable.108

VI. What Prevails If Both IHL and IHRL Apply?

If both IHL and IHRL apply and provide differing answers in a given situ

lex specialis principle determines which of the two prevails.109 It must h

stressed that if (for whatever reason) one of the two branches does not ap

tain conduct, no lex specialis issue arises. Thus, if the United States is corr

sidering that IHRL does not apply extraterritorially or if IHRL does 

obligations for armed groups, as the prevailing opinion goes,110 their 

governed exclusively by IHL.

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1. The Determination of the Lex Specialis

I have tried elsewhere to explore what the principle “lex specialis d

generali” means in general and in particular concerning IHL and IHR

principle does not indicate an inherent quality in one branch of law or o

rules. Rather, it determines which rule prevails over another in a partic

tion.112 Each case must be analyzed individually.113

Several factors must be weighed to determine which rule, in relation t

problem, is special. Specialty in the sense of logic implies that the norm th

to certain facts must give way to the norm that applies to those same fact

to an additional fact present in the given situation. Between two applic

the one which has the larger “common contact surface area”114 with th

applies. The norm with the scope of application that enters completely i

the other norm must prevail, otherwise it would never apply.115 It is the n

the more precise or narrower material and/or personal scope of applic

prevails.116 Precision requires that the norm addressing explicitly a pro

vails over the one that treats it implicitly, the one providing the advantag

over the other’s generality,117 and the more restrictive norm over the on

the entire problem but in a less exacting manner.118

A less formal factor—and equally less objective—that permits determ

which of two rules apply is the conformity of the solution to the systemic 

of the law.119 Characterizing this solution as “lex specialis” perhaps const

use of language. The systemic order of international law is a normative 

founded upon value judgments.120 In particular when formal standards 

dicate a clear result, this teleological criterion must weigh in, even thoug

for personal preferences.121

The principle traditionally deals with antinomies between conventi

Whether it also applies to the relationship between two customary ru

clear. Theoretically, this is not the case, if one adopts a traditional unders

customary law. The customary rule applicable to a certain problem de

the practice and opinio juris of States in relation to that problem. In rela

same problem, there cannot be a customary “IHRL” and another custom

rule. One always focuses on the practice and the opinio juris manifested 

to problems as similar as possible to the one to be resolved. This appear

approach of the ICRC, which refers, in its Customary Law Study, to a va

practice in human rights, including outside of armed conflicts.122 In prac

ever, when one looks for a customary rule, one often refers to a text, 

treaty or another instrument codifying customary law or one that instiga

velopment of a customary rule,123 or even a doctrinal text. Then, one spe

lem could be covered by two contradictory texts, both deduced from Stat

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The choice between these two texts is, in my opinion, governed by the sa

ples as the choice between two treaty rules. If the State practice clarifyin

the two rules prevails in the given situation is not sufficiently dense, one 

cover by the usual methods which of the two rules, derived from the pra

lyzed from different perspectives, constitutes the lex specialis.

2. On Attacks

First, it must be emphasized that there is a good deal of common groun

IHL and IHRL. In a “battlefield-like” situation, arrest is virtually always i

without putting the government forces into disproportionate danger

presents a great threat to life even if that threat consists of attacks agai

forces. The immediacy of that threat might be based not only on what th

fighter is expected to do, but also on his or her previous behavior.124 

even under IHRL, in such situations, lethal force could be used. On the o

the life of a fighter who is hors de combat is equally protected by both br

It is where the solutions of the two branches actually contradict each 

the applicable rule must be determined under the lex specialis principle. T

essential example of such a contradiction is the Taliban or Al Qaeda lead

ing a secret meeting in Kabul. Many interpret IHL as permitting int

forces to shoot to kill since he is a fighter, but this is controversial. IH

clearly say he must be arrested and a graduated use of force must be emp

this conclusion is based upon precedents which arose in peacetime and I

ways more flexible according to the situation.

In my view, some situations contain more specificities of the situation 

the IHL rule was made and some situations more facts for which hum

were typically made. There is a sliding scale125 between the lone Taliban 

Kabul and the Taliban fighter engaged in a nearly conventional battle wit

tional forces in the mountains around Khost. It is impossible to provide 

fits all” answer; as shown above, the lex specialis principle does not dete

orities between two rules in the abstract, but offers a solution to a concr

which competing rules lead to different results. The famous dictum by th

“[t]he test of what is an arbitrary deprivation of life . . . [must] be determi

applicable lex specialis, namely, the law applicable in armed conflict”126 s

be misunderstood. It has to be read in the context of the opinion,127 in 

ICJ had to determine the legality in abstracto of the use of a certain wea

Such a flexible solution, which makes the actual required behavior dep

the situation at hand, is dangerous, in particular regarding attacks, where 

deals with a question of life and death and where it has to be applied by 

dier and leads to irreversible results. It is therefore indispensable to 

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factors which make either the IHL of international armed conflicts r

IHRL rule prevail.

The existence and extent of control by governmental and internatio

over the place128 where the attack occurs point toward IHRL aslex specia

if IHRL obligations under the right to life existed for a given State beyon

that is under the control of that State, control over the place where the att

is a factor making IHRL prevail over IHL. The latter was made for hostilit

forces on or beyond the front line, i.e., in a place that is not under the 

those who attack them, while law enforcement concerns persons who are 

jurisdiction of those who act. In traditional conflict situations this corre

the question of how remote the situation is from the battlefield,130 altho

and fewer contemporary conflicts are characterized by front lines and b

What then constitutes sufficient control to warrant IHRL predominatin

specialis? International forces could not simply argue that the presence o

rebel or even a group of rebels indicates that in fact they are not fully in 

the place and therefore act under IHL as lex specialis. The question is rat

degree. If the international forces could effect an arrest (of a memb

Taliban) without being overly concerned about interference by other 

that operation, then they have sufficient control over the place to ma

rights prevail as lex specialis.

This criterion of control leaves the solution a little more open in an a

under firm control of neither side (such as many places in Afghanist

where the strict requirements of necessity of IHRL are not fulfilled (if the

branches lead to the same result), the impossibility of arresting the figh

danger inherent in an attempt to arrest the fighter132 and the danger repr

the fighter for government and international forces and civilians as well 

mediacy of this danger133 may lead to the conclusion that IHL is the lex 

that situation. These factors are interlinked with the elements of control 

above. In addition, where neither party has clear geographical control, in 

the higher the degree of certainty that the target is actually a fighter, the 

IHL approach appears as lex specialis.

134 Attacks are lawful against person

actually fighters, while law enforcement is by definition directed agains

The main weakness of such a flexible approach is its practicability. If t

depends on the specific situation, how can a soldier know what to a

problem can only be solved by precise instructions and orders for every 

and every sortie. In addition, on the international level, guidelines migh

oped in discussions among IHL and IHRL experts, law enforcement pr

and representatives of the military. Logically, (former) fighters shou

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involved, in particular if the guidelines equally cover conduct of such gr

ensure that they can be applied in practice.

3. On Detention

When comparing the rules of IHL of non-international armed conflicts 

dural guarantees for persons arrested with those of IHRL, the former d

while, except for the admissible extent of derogations, the latter are clea

developed by jurisprudence. The latter must therefore prevail. They are 

cise and more restrictive. The ICRC Customary Law Study appears to 

approach when it interprets the alleged IHL rule prohibiting the arbitrar

tion of liberty through the lens of IHRL.136 Unlike a person to be tar

whom a flexible approach was advocated above, a detainee is clearly und

of those who detain him or her. It may be added that the result is not s

from that of an application by analogy of the guarantees foreseen by C

IV for civilians in international armed conflicts, the only difference bein

der IHRL a court must decide, while under IHL an administrative bod

cient.137 Under IHRL too, however, the court does not necessarily have t

independent and impartial tribunal that could try a person, but it must h

cial character and it may only take decisions after judicial, adversarial pr

providing the individual guarantees appropriate to the reasons of the in

in question.

The only exception where IHL must prevail, as it was specifically 

armed conflicts and foresees a rule, exists when either an agreement be

parties or a unilateral recognition of belligerency makes the full regime 

applicable. In that case detained fighters have the disadvantage of a lack o

habeas corpus (although there must inevitably exist a procedure to 

whether an arrested person is or is not an enemy fighter benefiting fr

status), but they have the advantage of a detailed regime governing their 

of immunity against prosecution and of a right to be released at the en

hostilities. In relation to Afghanistan, the question arises whether the a

concluded by certain coalition partners such as Canada with the Afgha

ment in which both parties undertake to “treat detainees in accordanc

standards set out in the Third Geneva Convention”138 can be considere

lateral granting of the protection of Convention III, which would make I

over the IHRL procedural guarantees. According to the letter of those ag

this is the case, at least for persons who are actually detained by the Afgha

ties. In reality, however, it would be very astonishing if, through those ag

the Afghan government waived the right to prosecute those arrested for a

tility against their forces, which is part of POW status. Nongov

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organization reports rather indicate that even the treatment of those per

from what Convention III would require.139 In my view, only full POW 

offer a lex specialis compared with the detailed procedural guarantees o

The main difficulty with this approach too is whether it is realistic 

States and non-State actors, interning possibly thousands, to bring all int

fore a court without delay during armed conflict. If it is not, such an 

risks making it extremely difficult to conduct war effectively and, thus, 

to less compliance with the rules in the long term, e.g., summary execu

guised as battlefield killings.

A second concern derives from the differences between State and non

tors, which have equal obligations under IHL but not under IHRL. The q

whether a non-State actor may establish a court remains controversial.

quirements that there be a legal basis and procedures established by law 

ment raise the same concern. While human rights themselves stipulate a

procedural requirements, neither they nor IHL applicable to non-int

armed conflict provides a specific legal basis for internment. While a St

provide in its domestic law, how is the non-State actor to establish this ba

Could then a non-State actor also derogate from IHRL? Application of IH

to make it impossible for one party to the armed conflict—the non-State 

intern legally. Parties to armed conflicts intern persons, hindering them 

tinuing to bear arms, so as to gain the military advantage. If the non-S

cannot legally intern persons—recalling that it is a serious violation of IH

quarter141—the non-State actor is left with little option but to release th

enemy fighters. If rules applicable to armed conflict make efficient fighti

sible, they will not be respected, thus undermining any protection the law 

These may be reasons for not applying the same lex specialis reasoning 

groups even if IHRL were considered to bind non-State armed groups.

VII. Conclusion

In an ideal world, armed forces could apply one set of rules when ab

would always know who a person they are confronted with is, they woul

der IHL with enemy fighters, while the Afghan police would deal in full 

IHRL with everyone else. This ideal world does not exist, and even less so 

istan. It is the very essence of stability operations that they take place in a

ment which offers the full spectrum of situations. It is therefore not aston

in fact normal that the full spectrum of laws apply: IHL, made for arme

but leaving some questions open, in particular in non-international ar

flicts; IHRL, made for the relations between a State and its citizens

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applicable to (or at least containing values that must protect) foreigners a

confronted with agents of a State abroad; and the domestic law of the 

State and of the home State. It is also normal that there is no general answ

those laws interrelate and which prevails. Everything depends on wh

spectrum a certain encounter with local people is situated. Most often, in 

the soldier acting in the field, and even the commander responsible for a 

does not know where on the spectrum he or she is standing. Therefore

tionship between IHL and IHRL for international forces in Afghanista

on many variables, and the identity and weight of those variables are i

controversial among lawyers. The approach suggested here as to when an

an Afghan may be attacked and detained like a soldier of the German W

in World War II and when he or she must benefit from the guarantees be

peacetime even the most suspect person lurking in a dodgy neighborhoo

upon the fundamental ideas and the typical situations for which the two 

were made. Moreover, it takes into account the practical difficulties o

making and the risks, consequences and reversibility of mistakes in tha

making, for both the target and the member of the international forces. If t

of the international forces were the overriding consideration, they wo

sent by their governments to such a dangerous place as Afghanistan. Vi

not mainly depend upon their military superiority, but on the impre

leave with the Afghan population, compared with what their enemies hav

Many will consider the very nuanced line suggested in this article

addition on some important issues is unable to provide solutions and on

guments, as unrealistic. In my view, full-spectrum operations require sol

increasingly lower level to apply, simultaneously, complicated and con

rules. However, they are not and they should not be left alone. They nee

possible training and clear instructions for every sortie. In addition, int

lawyers and practitioners should meet, not to reaffirm the theory or to 

that the old rules are not adequate for the new situation, but to operatio

interplay between the existing rules agreed upon by States, including to e

few issues on which there are genuine divergences of view, the (often r

ited) practical impact of those divergences and the possible solutions.

Notes

1. See infra text accompanying note 54.

2. For those requirements in particular, see the decision of the International C

bunal for the former Yugoslavia in Prosecutor v. Ramush Haradinaj, Idriz Bal

Brahimaj, Case No. IT-04-84-T, Trial Chamber Judgment, paras. 37–99 (Apr. 3, 20

455

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pg 

in the War on Terror, 32 ISRAEL YEARBOOK OF HUMAN RIGHTS 193 (2002).

4. See Convention Relative to the Protection of Civilian Persons in Time of 

Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LA

301 (Adam Roberts & Richard Guelff eds., 3d. ed. 2000) [hereinafter Geneva Conv

5. Convention for the Amelioration of the Condition of Wounded and Sic

Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter G

vention I]; Convention for the Amelioration of the Condition of Wounded, Sic

wrecked Members of Armed Forces at Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 

[hereinafter Geneva Convention II]; Convention Relative to the Treatment of Priso

art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention 

col Additional to the Geneva Conventions of 12 August 1949, and Relating to the P

Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafte

Protocol I]; all reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 1

and 422, respectively; Geneva Convention IV, supra note 4.

6. See William K. Lietzau, Combating Terrorism: Law Enforcement or War?, in 

AND INTERNATIONAL LAW, CHALLENGES AND RESPONSES 80 (Michael Schmitt & 

Beruto eds., 2002).

7. Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216, 2235–36, para. 56; Cypru

2001-IV Eur. Ct. H.R. 1, para. 77. (These and all other decisions of the European Cou

Rights are available online at http://echr.coe.int/echr/en/hudoc.)

8. See Michael J. Dennis, Application of Human Rights Treaties Extraterritorially 

Armed Conflict and Military Occupation, 99 AMERICAN JOURNAL OF INTERNATIONA

123–24 (2005).

9. See Legal Consequences of the Construction of a Wall in the Occupied Palest

tory, Advisory Opinion, 2004 I.C.J. 136, paras. 102, 110 (July 9); Adam Roberts, Pro

tary Occupations: The Israeli-Occupied Territories since 1967, 84 AMERICAN J

INTERNATIONAL LAW 44, 71–72 (1990). The Coalition Provisional Authority Adm

Iraq, Ambassador L. Paul Bremer, is reported to have stated in a letter to Amnesty In

that “the only relevant standard applicable to the Coalition’s detention practices is 

Geneva Convention of 1949.” See AMNESTY INTERNATIONAL, IRAQ: MEMORANDU

CERNS RELATED TO LEGISLATION INTRODUCED BY THE COALITION PROVISIONAL 

(2003), available at http://web.amnesty.org/library/Index/ENGMDE141762003

ENG-IRQ.

10. Legal Consequences of the Construction of a Wall, supra note 9, paras. 107

Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J

216–17 (Dec. 19). (The decisions of the International Court of Justice are availab

www.icj-cij.org/docket/index.php?p1=3&p2=4.)

11. U.N. Human Rights Committee, Concluding Observations of the Human Rig

tee: Israel para. 10, U.N. Doc. CCPR/C/79/Add.93 (Aug. 18, 1998); U.N. Human R

mittee,General Comment 31: The Nature of the General Legal Obligation Imposed on S

to the Covenant para. 10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004).

12. See, e.g., UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED 

para. 11.19 (2004).

13. See also references in Special Rapporteur, Report of the Special Rapporteur of t

sion on Human Rights on the Situation of Human Rights in Kuwait under Iraqi Occup

50–59, delivered to the U.N. Econ. and Soc. Council, U.N. Doc. E/CN.4/1992/26 (Ja

(prepared by Walter Kalin).

456

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gy f ppf 

Rights Law during Armed Conflict, Occupation, and Peace Operations, 39 VANDERBI

OF TRANSNATIONAL LAW 1447, 1491–92 (2006).

15. Alejandre v. Cuba, Case 11.589, Inter-Am. C.H.R., Report No. 86/99, O

II.106 doc. 3 rev. at 586, para. 25 (1999).

16. Bankovic et al. v. Belgium et al., App. No. 52207/99, 2001-XII Eur. Ct. H.R

70–71.

17. Issa and Others v. Turkey, App. No. 31821/96, 41 Eur. Ct. H.R. Rep. 567, p

(2004).

18. Pad and Others v. Turkey, App. No. 60167/00, Admissibility, paras. 54–

H.R., June 28, 2007).

19. Nuala Mole, Issa v. Turkey: Delineating the Extra-territorial Effect of the Eu

vention on Human Rights, 1 EUROPEAN HUMAN RIGHTS LAW REVIEW 86–87 (2005

20. Issa v. Turkey, supra note 17, para. 75. In this decision, the Court was drawing 

case law regarding Cyprus.

21. Cerone, supra note 14, at 1494–1507, frames the discussion in terms of a “r

plicable rights and in terms of the “level of obligation” binding States acting extrate

22. Hussein v. 21 States, App. No. 23276/04, 42 Eur. H.R. Rep. SE16 at 3 (Ma

(Court Decision on Admissibility).

23. Id. at 4.

24. Hess v. United Kingdom, 18 YEARBOOK OF THE EUROPEAN CONVENTION 

RIGHTS 146, 176 (1975) (Eur. Comm’n on H.R.).

25. Damira Kamchibekova, State Responsibility for Extraterritorial Human Right

13 BUFFALO HUMAN RIGHTS LAW REVIEW 87, 125 (2007).

26. Hess v. United Kingdom, supra note 24, at 176 (emphasis added).

27. A State that is an occupying power has, however, the positive obligation to 

right to life of persons within its jurisdiction against third parties. The ICJ held that U

occupying power in Congo, had an obligation “to protect the inhabitants of the occup

against acts of violence, and not to tolerate such violence by any third party.” See Arm

on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, paras. 

28. On the irrelevance of who arrested a detainee, see Michael Fordham et al., Joi

In the Matter of the All Party Parliamentary Group on Extraordinary Rendition and 

ter of the Human Rights Responsibility Arising from the Military Detainee Hando

paras. 10 and 15(2) (July 28, 2008), available at http://www.extraordinaryrenditio

.php?option=com_docman&task=cat_view&gid=30&Itemid=27.

29. Article 15 of the European Convention for the Protection of Human Rights 

mental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Conventio

“time of war or other public emergency threatening the life of the nation”; Article 4 

national Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 

ICCPR], refers to “time of public emergency which threatens the life of the nation a

tence of which is officially proclaimed”; Article 27 of the American Convention 

Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter American Convention], refer

war, public danger, or other emergency that threatens the independence or securi

Party.”

30. R (on the Application of Al-Jedda) (FC) v. Secretary of State for Defence [2

58 (per Lord Bingham, para. 38), available at http://www.publications.parliam

ld200708/ldjudgmt/jd071212/jedda-1.htm) [hereinafter Al-Jedda].

31. Id.

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y gy 

as IHRL, contrary to IHL, knows no distinction between ius ad bellum and ius in be

liam Schabas, Lex Specialis? Belt and Suspenders? The Parallel Operation of Human 

and the Law of Armed Conflict and the Conundrum of Jus Ad Bellum, 40 ISRAEL LAW R

593, 607–10 (2007).

33. Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216, at 2235–36, para. 52 (empha

34. Al-Jedda, supra note 30, paras. 26–39 (per Lord Bingham), 125–29 (per Bar

130–35 (per Lord Carswell) and 151 (per Lord Brown). Lord Rodger agrees in princ

at paragraph 118. The Law Lords held that Article 5 rights may be “displaced” or “q

UN Security Council Resolution 1546, but insisted that the infringement be lim

Bingham held that they must “ensure that the detainee’s rights under article 5 are n

to any greater extent than is inherent in such detention.” Id., para. 39. Lord Carsw

specific “safeguards” to be implemented during such detention “so far as is practicab

sistent with the needs of national security and the safety of other persons.” Id., para

35. See Application of the Convention on the Prevention and Punishment of t

Genocide (Bosn. & Herz. v. Serb. & Mont.), 1993 I.C.J. 325, 440–41, paras. 100–10

(separate opinion of Judge Lauterpacht).

36. See Behrami v. France and Saramati v. France, 45 Eur. Ct. H.R. 10 (2007). In 

question of attribution was not clearly distinguished from the above-mentioned 

whether a Security Council resolution overrides the substantive human rights obli

State, but in its global reasoning the ECtHR suggested that such resolutions have p

effect. Id., para. 149. The two questions were distinguished in the Al-Jedda case by th

of Lords, which rejected on the facts the claims of the government under the first q

answered the second question affirmatively (Al-Jedda, supra note 30, paras. 22–24 (a

para. 39 (human rights) (per Lord Bingham); Lord Rodger dissenting on the questio

tion (see particularly para. 99)).

37. U.N. Human Rights Committee,Consideration of Reports Submitted by State

der Article 40 of the Covenant: Comments by the Government of Germany to the Conclu

vations of the Human Rights Committee, U.N. Doc. CCPR/CO/80/DEU/Add.1 (Jan. 5

Human Rights Comm., Concluding Observations of the Human Rights Committee: Po

U.N. Doc. CCPR/CO/82/POL (Dec. 2, 2004). Other State parties have answered q

garding the actions of their national forces in peacekeeping missions without cont

the ICCPR does not apply beyond their State borders or in that context (Belgium, U

Rights Committee, Consideration of Reports Submitted by States Parties under Arti

Covenant para. 22, U.N. Doc. CCPR/C/SR.1707 (Oct. 27, 1998); Italy, U.N. Human R

mittee, Consideration of Reports Submitted by States Parties under Article 40 of the Co

22, U.N. Doc. CCPR/C/SR.1680 (Sept. 24, 1998); Canada, U.N. Human Rights Comm

sideration of Reports Submitted by States Parties under Article 40 of the Covenant p

U.N. Doc. CCPR/C/SR.1738 (Mar. 7, 1999)).

38. See Report of the International Law Commission on its Fifty-eighth Sessi

U.N. GAOR, 61st Sess., Supp. No. 10, U.N. Doc. A/61/10 (2006) (discussing Articles 

the Draft Articles on the Responsibility of International Organizations).

39. Waite and Kennedy v. Germany, 1999-I Eur. Ct. H.R. 393; Bosphorus H

Turizm ve Ticaret Anonim Sirketi v. Ireland, 2005-VI Eur. Ct. H.R. para. 154.

40. Additional Protocol I, supra note 5, art. 51(3), which reflects customary law

act meaning of which is controversial and presently subject to an ICRC-led process 

and reflection on and clarification of the notion of direct participation in hostiliti

note 46.

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LAW 75–76 (1985).

42. See British War Office, III Manual of Military Law (Law of War on Land

(1958).

43. For the divergences of view in the ICRC expert consultations on the notion o

ticipation in hostilities, see Direct Participation 2005 Report, infra note 46, at 45

Doswald-Beck, The right to life in armed conflict: does international humanitarian law 

the answers?, 88 INTERNATIONAL REVIEW OF THE RED CROSS 881, 902 (2006); V

Proulx, If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflections on t

Detention and Targeted Killing of Suspected Terrorists, 56 HASTINGS LAW JOURNAL 

(2006).

44. Additional Protocol I, supra note 5, art. 51(5)(b).

45. See Geneva Conventions I–III, supra note 5, art. 3; Geneva Convention IV, s

art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of Non-International Armed Conflicts art. 4, June 8, 1977, 11

609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 483 [herein

tional Protocol II].

46. Recently, the ICRC was engaged, in consultation with experts, in a process 

reflection on and clarification of the notion of “direct participation in hostilities” 

This process has not yet shown definitive results but it clearly demonstrated prof

gences over the question of when enemy fighters may be killed in a non-internat

conflict. See Third Meeting on the Notion of Direct Participation in Hostilities un

tional Humanitarian Law (Oct. 23–25, 2005), http://www.icrc.org/Web/eng/s

htmlall/participation-hostilities-ihl-311205/$File/Direct_participation_in_hostilities_2

[hereinafter Direct Participation 2005 Report]; Second Expert Meeting: Direct Part

Hostilities under International Humanitarian Law (Oct. 25–26, 2004), http://ww

Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/Direct_partic

hostilities_2004_eng.pdf; Direct Participation in Hostilities under International Hu

Law (Sept. 2003), http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/participatio

-ihl-311205/$File/Direct%20participation%20in%20hostilities-Sept%202003.pdf. 

those discussions, the ICRC is currently preparing an “Interpretative Guidance on th

Direct Participation in Hostilities.”

47. University Centre for International Humanitarian Law, Expert Meeting on the 

in Armed Conflict and Situations of Occupation 34 (2005), available at http://www.adh

pdfs/3rapport_droit_vie.pdf [hereinafter UCIHL Report].

48. Direct Participation 2005 Report, supra note 46, at 64; David Kretzmer, Tar

of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 

JOURNAL OF INTERNATIONAL LAW 171, 197–98 (2005).

49. Under Common Article 3, the term “armed forces” includes rebel armed 

Marco Sassòli, Terrorism and War,4JOURNAL OF INTERNATIONAL CRIMINAL JUST

(2006).

50. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GE

VENTIONS OF 12 AUGUST 1949 para. 4789 (Yves Sandoz, Christophe Swinarski & 

mermann eds., 1987).

51. Direct Participation 2005 Report, supra note 46, at 48–49.

52. Public Committee against Torture in Israel v. Government of Israel et al., H

Judgment, para. 39 (Dec. 13, 2006), available at http://elyon1.court.gov.il/files_eng/

a34/02007690.a34.pdf [hereinafter Public Committee against Torture].

459

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54. Id. at 64; Kretzmer, supra note 48, at 198–99, goes in a similar direction.

55. JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK,ICUSTOMARY INTE

HUMANITARIAN LAW 3 (Rule 1) (2005).

56. Id.

57. Id. at 19 (Rule 6).

58. Id. at 17 (Rule 5).

59. Id. at 12.

60. Id. at 17.

61. Id. at 21.

62. Id.

63. MARCO SASSÒLI & ANTOINE BOUVIER, HOW DOES LAW PROTECT IN WAR? 

2006).

64. Alexander Orakhelashvili, The Interaction between Human Rights and Hu

Law: Fragmentation, Conflict, Parallelism, or Convergence?, 19 EUROPEAN JOURNAL O

TIONAL LAW 161, 167 (2008).

65. Geneva Convention III, supra note 5, art. 21.

66. Geneva Convention IV, supra note 4, art. 42 (for an alien on the territory o

67. Id., art. 78(1) (in occupied territory).

68. Id., arts. 43, 78(2).

69. Id., art. 147. See also Statute of the International Criminal Court art. 8(2)(a)(

1998, 2187 U.N.T.S. 90; Statute of the International Criminal Tribunal for the Pro

Persons Responsible for Serious Violations of International Humanitarian Law Co

the Territory of the former Yugoslavia since 1991 art. 2(g), S.C. Res. 827, U.N. Doc

(1993).

70. Additional Protocol II, supra note 45, arts. 5, 6(5).

71. HENCKAERTS & DOSWALD-BECK, supra note 55, at 344–52.

72. Id. at 348–51.

73. Additional Protocol II, supra note 45, arts. 5, 6.

74. See Jelena Pejic, Procedural Principles and Safeguards for Internment/Admin

tention in Armed Conflict and Other Situations of Violence, 87 INTERNATIONAL REV

RED CROSS 375, 377 (2005).

75. For a position rejecting such an analogy, see United Nations Commission 

Rights, Working Group on Arbitrary Detention, Situation of Detainees at Guantanam

24, U.N. Doc. E/CN.4/2006/120 (Feb. 2006).

76. HENCKAERTS & DOSWALD-BECK, supra note 55, at 352.

77. Geneva Convention III, supra note 5, art. 6.

78. HENCKAERTS & DOSWALD-BECK, supra note 55, at 352; LINDSAY MOIR, THE 

TERNAL ARMED CONFLICT 41 (2002).

79. Article 5 of Geneva Convention III prescribes status determination tribun

persons a detaining power wants to deny POW status.

80. When are active hostilities against the Taliban over? Only once the last me

Taliban hidden in a mountain cave is arrested?

81. Article 6(5) of Additional Protocol II simply encourages the widest possible 

82. See Marco Sassòli & Laura M. Olson, The relationship between international 

ian and human rights law where it matters: admissible killing and internment of figh

international armed conflicts, 90 INTERNATIONAL REVIEW OF THE RED CROSS 599 (

83. Id.

460

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85. McCann v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) paras. 200–205 (19

86. See, e.g., Las Palmeras Case, 2002 Inter-Am. Ct. H.R. (ser. C) No. 96 (2002)

87. See Basic Principles on the Use of Force and Firearms by Law Enforcement O

10, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990), available at http://www.unhc

menu3/b/h_comp43.htm.

88. Id., note. The note clarifies the term “law enforcement officials” by referring 

mentary to Article 1 of the Code of Conduct for Law Enforcement Officials.

89. European Convention, supra note 29, art. 5(2). It has been argued that this o

international armed conflicts. See Doswald-Beck, supra note 43, at 883. In any case, 

ever tried to derogate based on this exception.

90. Abella v. Argentina (Tablada), Case 11.137, Report No. 55/97, Inter-Am. C

Ser.L/V/II.95 doc. 7 rev., para. 178 (1997) (emphasis supplied).

91. Camargo on behalf of Guerrero v. Colombia, Hum. Rts. Comm., Comm. N

U.N. Doc. Supp. No. 40 (A37/40) (Mar. 31, 1982) [hereinafter Guerrero case].

92. Isayeva v. Russia, App. No. 57950/00, 41 Eur. Ct. H.R. Rep. paras. 175–76 (

93. For an overview, see NILS MELZER, TARGETED KILLING IN INTERNATIONAL L

384–92 (2008).

94. UCIHL Report, supra note 47, at 36.

95. ICCPR, supra note 29, art. 9(1). See also European Convention, supra note 

American Convention, supra note 29, art. 7; African Charter on Human and People

6, June 17, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 INTERNATIONAL LEGAL MA

(1982) [hereinafter African Charter].

96. ICCPR, supra note 29, art. 9(1); European Convention, supra note 29, art. 

Convention, supra note 29, art. 7(3); African Charter, supra note 95, art. 6.

97. See Guzzardi v. Italy, 3 Eur. Ct. H.R. Rep. 333, para. 102 (1981).

98. See D.J. HARRIS, MICHAEL O’BOYLE & COLIN WARBRICK, LAW OF THE EURO

VENTION ON HUMAN RIGHTS 115–21, particularly 117 (1995) (in human rights ter

ment” is more commonly referred to as “preventive detention”); see also CLARE OV

C.A. WHITE, JACOBS AND WHITE: EUROPEAN CONVENTION ON HUMAN RIGHTS 10

2002).

99. Lawless v. Ireland, 3 Eur. Ct. H.R. (ser. A) at 51–53; 1 Eur. H.R. Rep. 15, par

tion entitled “The Law” (1979–80).

100. Mukong v. Cameroon, Comm. No. 458/1991, U.N. Doc. CCPR/C/51/

(1994), reprinted in OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER F

RIGHTS, 5 SELECTED DECISIONS OF THE HUMAN RIGHTS COMMITTEE 86 (1994).

101. H. van Alphen v. The Netherlands, Hum. Rts. Comm., Comm. No. 305/198

A/45/40 (vol. II) at 115, para. 5.8 (1990); Spakmo v. Norway, Hum. Rts. Comm., 

631/1995, U.N. Doc. A/55/40 (vol. II) at 26, para. 6.3 (1999). See also U.N. Human Righ

tee,General Comment No. 8, Right to liberty and security of persons (Art. 90), paras. 1 and 

102. ICCPR, supra note 29, art. 9(2); European Convention, supra note 29, art. 5

American Convention, supra note 29, art. 7(4).

103. ICCPR, supra note 29, art. 9(4). See also European Convention, supra note 

American Convention, supra note 29, art. 7(6); African Charter, supra note 95, art. 

104. Habeas Corpus in Emergency Situations (arts. 27(2) and 7(6) of the Americ

tion), Advisory Opinion OC-8/87, January 30, 1987, Inter-Am. C.H.R. (Ser. A) No

105. See U.N. Human Rights Committee, General Comment No. 29, U.N. Doc. C

Rev.1/Add.11 on Art. 4 ICCPR, para. 16 (2001) [hereinafter General Comment 29]

461

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107. Aksoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260, paras. 78, 83 and 84.

108. For a list of practice pointing to the non-derogability of habeas corpus, see H

& DOSWALD-BECK, supra note 55, at 350–51 and accompanying footnotes (includ

Comment 29, supra note 105, para. 16). See also Doug Cassel, Security Detention un

tional Human Rights and Humanitarian Law, 98 JOURNAL OF CRIMINAL LAW & CR

811 (2008); Pejic, supra note 74, at 387. Although the decision was solely based on the 

tution, one could also refer to the decision of the US Supreme Court in Boumediene 

S.Ct. 2229 (2008), which indicates that States consider habeas corpus to cover even p

acterized as enemy combatants in an armed conflict.

109. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

para. 25 (July 8); Legal Consequences of the Construction of a Wall in the Occupied 

Territory, Advisory Opinion, 2004 I.C.J. 136, para. 106.

110. See Nigel S. Rodley, Can Armed Opposition Groups Violate Human Rights St

HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY 297 (Kathleen E. Mahoney & Pa

eds., 1993); U.N. Econ. & Soc. Council, Report of the Consultative Meeting on the Draf

ciples and Guidelines on the Right to a Remedy and Reparations for Victims of Violation

tional Human Rights and Humanitarian Law para. 57, U.N. Doc. E/CN.4/2003/6

2002). For a more progressive view, see ANDREW CLAPHAM, HUMAN RIGHTS OBLI

NON-STATE ACTORS 271–99 (2006).

111. Marco Sassòli, Le droit international humanitaire, une lex specialis par rappo

humains?, in LES DROITS DE L’HOMME ET LA CONSTITUTION, ETUDES EN L’HO

PROFESSEUR GIORGIO MALINVERNI 375–95 (Andreas Auer, Alexandre Flückige

Hottelier eds., 2007).

112. International Law Commission, Fragmentation of International Law: Difficu

from the Diversification and Expansion of International Law, Report of the Study Group 

national Law Commission para. 112, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) (finaliz

Koskenniemi) [hereinafter Fragmentation of International Law]; Heike Krieger, A 

Norms: The Relationship between Humanitarian Law and Human Rights Law in the 

tomary Law Study, 11 JOURNAL OF CONFLICT & SECURITY LAW 265, 269, 271 (2

Alston et al., The Competence of the UN Human Rights Council and its Special Proced

tion to Armed Conflicts: Extrajudicial Executions in the “War on Terror,” 19 EUROPEA

OF INTERNATIONAL LAW 183, 192 (2008); Report of the International Law Commi

Work of its Fifty-Sixth Session para. 304, U.N. GAOR, 59th Sess. Supp. No. 10, U.N

10 (2004).

113. Anja Lindroos, Addressing Norm Conflicts in a Fragmented System: The Do

Specialis, 74 NORDIC JOURNAL OF INTERNATIONAL LAW 27, 42 (2005).

114. These terms were first used by Mary Ellen Walker, an LL.M. student at the G

emy of International Humanitarian Law and Human Rights in my 2008 IHL class.

115. KARL LARENZ, METHODENLEHRE DER RECHTSWISSENSCHAFT 267–68 (6th 

116. Norberto Bobbio, Des critères pour résoudre les antinomies, in LES ANTINOMIE

ÉTUDES 244 (Chaïm Perelman ed., 1965).

117. See, e.g., SEYED ALI SADAT-AKHA, METHODS OF RESOLVING CONFLICT

TREATIES 124 (2003).

118. See the ECtHR concerning the relationship between Articles 13 and 5(4) o

Brannigan and McBride v. United Kingdom, 258 Eur. Ct. H.R. (ser. A) at 57, para. 

119. Fragmentation of International Law, supra note 112, para. 107.

120. Krieger, supra note 112, at 280.

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Treaties, 30 BRITISH YEAR BOOK OF INTERNATIONAL LAW 450 (1953).

122. HENCKAERTS & DOSWALD-BECK, supra note 55, at 299–383.

123. MARCO SASSÒLI, BEDEUTUNG EINER KODIFIKATION FÜR DAS A

VÖLKERRECHT—MIT BESONDERER BETRACHTUNG DER REGELN ZUM SCH

ZIVILBEVÖLKERUNG VOR DEN AUSWIRKUNGEN VON FEINDSELIGKEITEN (1990).

124. Direct Participation 2005 Report, supra note 46, at 52.

125. UCIHL Report, supra note 47, at 38; Direct Participation 2005 Report, supr

51–52.

126. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

supra note 109, para. 25.

127. Alston et al., supra note 112, at 192–93.

128. If the person targeted is under control both IHL and IHRL prohibit summary 

129. Doswald-Beck, supra note 43, at 897; UCIHL Report, supra note 47, at 36; Kre

note 48, at 203; Cordula Droege, The Interplay between International Humanitarian 

ternational Human Rights Law in Situations of Armed Conflict, 40 ISRAEL LAW R

(2007).

130. Droege, supra note 129, at 347.

131. Public Committee against Torture, supra note 52, para. 40; Doswald-Beck

43, at 891.

132. Public Committee against Torture, supra note 52, para. 40.

133. Kretzmer, supra note 48, at 203.

134. Guerrero case, supra note 91, para. 13.1–13.3; Public Committee against To

note 52, para. 40; Orna Ben-Naftali & Keren R. Michaeli, “We Must Not Make a Scar

Law”: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 CORNELL INTE

LAW JOURNAL 233, 290 (2003).

135. In relation to armed groups, it is uncertain that the lex specialis is the same as 

ment soldiers. Both parties must be equal as far as the applicable IHL is concerned, 

not equal as far as IHRL is concerned. Even if the latter is addressed to non-State a

only require from them certain conduct toward persons who are in an area under th

In addition, a State has the alternative of law enforcement; therefore to plan an opera

a way so as to maximize the possibility of being able to arrest persons, while the quest

armed groups may legislate to make their enemies’ conduct illegal, or whether they 

existing legislation, is controversial.

136. See HENCKAERTS & DOSWALD-BECK, supra note 55, at 344–52.

137. JEAN S. PICTET, COMMENTARY IV ON THE GENEVA CONVENTIONS OF 12 AU

at 260, 369 (1952).

138. Quoted in Amnesty International Canada and British Columbia Civil Libert

tion v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defe

torney General of Canada, 2008 F.C. 336, para. 175, available at http://www.lornew

pdf/aidecision.pdf.

139. AMNESTY INTERNATIONAL, AFGHANISTAN: DETAINEES TRANSFERRED TO 

ISAF COMPLICITY? (2007).

140. Jonathan Somer, Jungle justice: passing sentence on the equality of belliger

international armed conflict, 89 INTERNATIONAL REVIEW OF THE RED CROSS 655 (2

141. Statute of the International Criminal Court, supra note 69, art. 8(2)(e)

HENCKAERTS & DOSWALD-BECK, supra note 55, at 161.

463

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XVIII

Afghanistan Legal Lessons Learned

Army Rule of Law Operations

Eric Talbot Jensen and Amy M. Pomeroy*

In 2002, the White House published the National Security Strategy. R

focusing exclusively on military operations, the strategy is compreh

recognizes that acts ranging from poverty reduction to disease eradic

contribute to America’s national security. However, one of the most cru

ponents of the National Security Strategywhich will impact virtually all o

ponents is the worldwide implementation of the rule of law.1 In furthera

National Security Strategy, National Security Presidential Directive 44 

in late 2005 and states that it is US policy to work with other countries tow

tive implementation of the rule of law.2 The directive tasks the Secretari

and Defense with coordinating rule of law efforts and with integrating 

military contingency plans. Consequently, by direction of the President

tary has a key role to play in implementing the rule of law and judge advo

must be prepared to lead these efforts.

465

* Lieutenant Colonel Eric Talbot Jensen, Judge Advocate, US Army, and Amy M

Student, Brigham Young University Law School serving as a Legal Intern, Intern

Branch, Office of The Judge Advocate General, US Army. The views expressed in th

those of the authors and not The Judge Advocate General’s Corps, the United States 

Department of Defense.

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Commanders look to JAs with the expectation that they will be comp

innovative in implementing the unit’s rule of law mission.3 This is clear

strated by the Center for Law and Military Operations’ publication of t

Law Handbook: A Practitioner’s Guide for Judge Advocates (Rule of Law H

where a “constantly re-occurring theme” is that “the command natural

the legal expert within the task force to plan, execute, coordinate, and ev

of law efforts.”4

Over six years of operations in Afghanistan, during which commande

lied on JAs in their rule of law operations, have created a number of lesson

this paper will highlight three:

• Rule of law operations must be totally integrated into all phases a

of military operations and the unit mission;

• US Army rule of law efforts must be completely coordin

synchronized with other rule of law efforts, especially those of the host n

must recognize what role the military is organizationally qualified to fi

• Military rule of law operations must be effects-based.

Before addressing these lessons learned, it is important to highlight t

sion surrounding the definition of rule of law. There are divergent, and 

flicting, views among academics, US government agencies, US allies 

within the Department of Defense, on what is meant by the rule of law.5 

nitional ambiguity allows two organizations or individuals to be deeply c

to accomplishing rule of law tasks, yet proceed in diametrically opposed d

Additionally, it is important to discuss the obligation that internation

ates to conduct rule of law operations. Recent court decisions such as th

United Kingdom’s House of Lords in Al-Jedda,

6 the European Court 

Rights cases from Kosovo7 and Canada’s Amnesty International v. Canad

lied on Security Council resolutions to determine the substance and exte

obligations imposed on armed forces. The United Nations Security C

signaled through several resolutions9 that supporting and promoting r

initiatives are not only permissible, but are obligations that participant

conflict are required to fulfill. It is incumbent on US forces to be awa

emerging practices and recognize that these obligations will likely f

armed conflict, whether brought on by reason of occupation or some oth

With international law imposing additional obligations to carry out rule 

erations, it is more crucial than ever to catalogue lessons learned, analyz

plication to doctrine and ensure that the US military is conducting its r

operations appropriately.

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I. To Be Effective, Rule of Law Operations Must Be Totally Integrated 

Phases and Aspects of Military Operations and the Unit Missi

In the aftermath of World War II, the US military embarked on a mass

law project that continued for years and involved a large pool of military 

However, as the Cold War heated up, the focus transitioned from rebuild

astated Europe to defending a reconstructed Europe from attack. As a 

focus of military doctrine, training, manning and equipping also adap

new environment. While this adaptation was necessary, it drew resourc

pertise away from rule of law capabilities. Over the subsequent decades, 

experience and training remained focused in other areas. The result w

who deployed to Afghanistan felt as though they were working in an eme

of doctrine without guidance or training.10

This was felt not only by JAs, but by the Army as a whole. The lack o

and guidance was a significant lesson learned from early operations and 

number of initiatives and actions that have tried to remedy this doctrinal 

ing gap. These efforts have included a somewhat circular process of (1) 

lessons learned from military operations, (2) rewriting doctrine to inclu

ples drawn from these lessons, (3) including this doctrine in mission tra

mission rehearsal exercises at combat training centers and then (4) coll

sons learned from the application of new doctrine in actual military o

which can then be reviewed and fed back into the doctrine review proce

The first step in this process—analysis—led to the recognition that r

efforts needed to be reintegrated into Army doctrine. The second step

doctrine to reflect this recognition, is well illustrated by several publica

emerged after the initial stages of engagement in Iraq and Afghanistan. 

recent Joint Publication 3-0, Doctrine for Joint Operations, divides milit

tions into three categories: offensive operations, defensive operations an

operations.11 Promoting stability operations to the same level as offen

fense is a dramatic change from a Cold War paradigm where defending 

Gap against an invasion by Warsaw Pact forces was the primary focus.

The importance of stability operations is echoed in the 2005 Departm

fense Directive 3000.05, Military Support for Stability, Security, Trans

Reconstruction (SSTR) Operations, which states:

Stability operations are a core U.S. military mission that the Department of 

shall be prepared to conduct and support. They shall be given priority compa

combat operations and be explicitly addressed and integrated across all [Dep

467

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] g , g, g, , 

materiel, leadership, personnel, facilities, and planning.12

Rule of law operations are an essential subset of stability operations. 

stability operations to be a core US military mission has driven an incr

expenditure of training resources and has changed the planning and 

stages to ensure units can accomplish rule of law missions.

Doctrine has also been rewritten to reflect the roles the military shou

pared to fulfill to further the rule of law. One change in doctrine acknow

the military may be called upon to play a supporting governance role. Jo

cation 3-0 discusses the various phases of an operation, the last two of 

“stabilize” and “enable civil authority.” To complete these last two pha

joint force may be required to perform limited local governance, integrat

forts of other supporting/contributing multinational, [other governmen

international government agencies, or nongovernmental agencies (NG

ticipants until legitimate local entities are functioning. This includes pr

assisting in the provision of basic services to the population.”13 Further, 

force will be in a supporting role to the legitimate civil authority in 

throughout the ‘enable civil authority’ phase.”14

Current doctrine also recognizes that the military can aid rule of law 

ment by creating security, a prerequisite for the rule of law, and a fundam

itary mission throughout all phases of an operation. Dependin

circumstances, “it may be the only real contribution that US forces can 

wards implementing the rule of law.”15 Experience has taught that, for a 

of reasons, there is a direct correlation between the establishment of a s

cure environment and the ability to accomplish rule of law objectives. 

such an environment requires in-depth planning from the very earlies

the operation.

Finally, military doctrine has changed to recognize that US forces pr

rule of law when their own actions, across the spectrum of military oper

inforce the legitimacy of the rule of law even before a stable environmen

created. The Rule of Law Handbook accurately states that “[a] command’

establish the rule of law within its area of control is dependent in large 

own compliance with legal rules restricting soldiers’ (and the command’s 

cretion.”16 This idea is echoed in the Center for Army Lessons Learned co

on counterinsurgency (COIN) operations which states that “[m]ilita

[must be] conducted in consonance with specified civil rights, liberties, 

tives.”17 The only way to do that is to ensure that rule of law considerati

essential part of the unit mission and intertwined with all military oper

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training. Every soldier, sailor, airman and Marine must recognize that 

actions can have a profound effect on the success of the national strateg

in supporting rule of law operations throughout the world.

To effectively carry out these and other doctrinal changes, the Army 

formed its combat training centers into stability operations training gro

National Training Center in California, Joint Readiness Training Center 

ana and Joint Multinational Readiness Center in Germany have all inc

stability operations, including rule of law operations, into their training 

Units routinely conduct “mission rehearsal exercises” at these locations 

themselves for the actual events that will take place in an impending depl

Afghanistan or Iraq. This training not only incorporates the new stabi

tions doctrine, but also the most recent lessons learned from units cur

ployed. With this training, units are better prepared to deploy to Afgha

similar environments and support rule of law operations.

The importance of promoting and complying with the rule of law 

clearly stated in almost every “lesson learned” from deployed units. The 

now in place and in the process of continual review based on continuin

from current military operations. Furthermore, mechanisms for implem

doctrine, such as training at the combat maneuver training centers, a

place. What remains is for the doctrine to be implemented on the ground

that these legal lessons are truly learned, not lost.

II. US Army Rule of Law Efforts Must Be Completely Coordinated 

Synchronized with Other Rule of Law Efforts, Especially Those of th

Nation, and Must Recognize What Role the Military Is

Organizationally Qualified to Fill

Because rule of law efforts are so complex, they are most effective when a

uting groups, especially the host nation, coordinate with one another r

inadvertently working at cross purposes. The Rule of Law Handbook illu

point:

Rule of law operations in Iraq and Afghanistan have repeatedly demonstrated 

of law practitioners who seek to coordinate efforts, funding, and resources wi

agencies and organizations yield the most effective results. . . . [A]s hostilities c

close other [US Government] agencies . . . will arrive in theater. Regional, sta

economic and security organizations such as the Gulf Cooperative Counc

Organization for Security and Cooperation in Europe . . . may have a prese

United Nations may, depending upon the operation have a presence, 

nongovernmental agencies with an interest in human rights and justice. Each 

469

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to maximize the effect of his efforts.18

Unfortunately, the US military and the world at large had not yet le

lesson when operations began in Afghanistan:

Pursuant to the Bonn Agreement, the rule of law effort in Afghanistan was o

by a “lead nation” approach, with different countries taking the lead in de

different aspects of the rule of law in Afghanistan. Germany became the lead n

developing the Afghan police force, while Italy was given responsibility for de

the judicial sector . . . . The split international effort has proven unwieldy f

reasons, since a rule of law effort has to address police and judicial reform in con

[and] the division of tasks among nations did not necessarily match the structu

Afghan government’s legal administrative apparatus.19

Not only is the lead-nation approach unwieldy, it has not been well r

Afghanistan. The 2008 Paris Conference made it clear that Afghanistan 

nation for Afghanistan’s rule of law initiatives. This led to a change in ap

interested nations and caused some adaptation to the lead-nation conce

This incongruent approach on the international level was little diffe

the approach at the US national level. US agencies involved in rule of l

tions in Afghanistan include the Department of State, the Office of the 

tor for Reconstruction and Stabilization (S/CRS), the Bureau for Int

Narcotics and Law Enforcement Affairs, the United States Agency fo

tional Development (USAID), the Department of Justice, the United St

tute for Peace, the Department of Defense (including judge advocates, c

personnel, military police and Provincial Reconstruction Teams),21 th

Institute of International Legal Studies and the Combined Security 

Command–Afghanistan. One lesson learned that has been constant th

the operation in Afghanistan, and has been emphasized as recently as 

2007, is that all these organizations are working hard, but their efforts a

coordinated.

This lack of concerted effort on rule of law operations was noted e

ghanistan operations and the US government has taken steps to try and 

problem. As previously mentioned, the Department of Defense promulg

Publication 3-0 and Department of Defense Directive 3000.05, both of w

attention to the necessity of interagency and intergovernmental coope

long-term success.22 In December of 2005, President Bush promulgated 

Security Presidential Directive 44, which recognizes the prior lack of coo

and states:

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, p() 

efforts of the United States Government to prepare, plan for, and 

reconstruction and stabilization assistance and related activities in a range of si

that require the response capabilities of multiple United States Government 

and (ii) to harmonize such efforts with U.S. military plans and operations.23

The directive then identifies who will be responsible for this coordination

The Secretary of State shall coordinate and lead integrated United States Gov

efforts, involving all U.S. Departments and Agencies with relevant capabi

prepare, plan for, and conduct stabilization and reconstruction activit

Secretary of State shall coordinate such efforts with the Secretary of Defense t

harmonization with any planned or ongoing U.S. military operations ac

spectrum of conflict.24

This directive was followed by the creation of the Department of State

the Coordinator for Reconstruction and Stabilization in August 2004. Th

of the S/CRS is “[t]o lead, coordinate and institutionalize U.S. Governme

capacity to prevent or prepare for post-conflict situations, and to help sta

reconstruct societies in transition from conflict or civil strife, so they c

sustainable path toward peace, democracy and a market economy.”25

The S/CRS acknowledges the difficulty in harmonizing efforts in th

website proclaims:

Until now, the international community has undertaken stabilizati

reconstruction operations in an ad hoc fashion, recreating the tools and relat

each time a crisis arises. If we are going to ensure that countries are set on a sus

path towards peace, democracy and a market economy, we need new, instituti

foreign policy tools—tools that can influence the choices countries and peop

about the nature of their economies, their political systems, their security, in

some cases about the very social fabric of a nation.26

Unfortunately, neither the establishment of the S/CRS nor any othe

by the Department of Defense, Department of State or any other agenc

sufficient to create a synchronized approach to rule of law in Afghanista

ter almost seven years of rule of law operations.

It would be unfair to attribute this failure either to the Department of 

the Department of Defense, or to any other single factor for that matter

are clearly some lessons that have been learned by the US Army. The first 

successful rule of law initiative must be host-nation driven. If the peopl

ernments (whether local, regional or national) of Afghanistan are not con

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fail to embrace proposed rule of law operations, not only are the o

doomed to failure, they will not promote the strategic interests of the Un

Conversely, when Afghanis and the Afghan government are a part of a co

effort, great progress can be made. One such example of a successful rule 

laboration with the host nation is the creation of the Provincial Justice Co

(PJC) program in Afghanistan:

The Provincial Justice Conferences (PJCs) program attempts to [bring Govern

Afghanistan (GoA)] justice officials from Kabul to meet their counterpart

provinces to discuss the obstacles to delivery of justice services to the provinc

identify solutions that can be instituted expediently and in a cost-effective way

up PJCs are generally scheduled within a period of three to six months to c

progress made on the identified solutions and to discuss outstanding issu

essential key to a successful PJC has been the invitation and inclusion of all in

[US government (USG)] agencies, the international community, an

representatives. Each agency or organization has the benefit of significant, spe

and diverse experience. With the inclusion of as many subject-matter ex

possible, new ideas may emerge to correct persistent problems.

As of the first quarter of 2007, PJCs and follow-up PJCs [had] been conduct

provinces in Afghanistan. The first PJCs drew small attendance from am

provincial justice officials, but more recent PJCs have drawn upwards of 15

from the national, provincial, and district levels, and, in some cases, from neig

provinces. A typical PJC program consists of several distinct parts. First, all par

are taken on a tour of justice facilities in the provincial capital, to include the 

police headquarters/detention centers, judges’ office, prosecutor’s office, cou

and defense counsel offices (if any). This feature gives participants a first-hand 

the justice infrastructure and an opportunity to observe justice officials in th

environments. Second, a general session of all participants is convened and h

the provincial governor. Brief comments from the governor, justice officials, an

international participants are presented. After a communal lunch, hosted b

more of the USG participants, conferees are divided into groups representi

individual justice interests—police, judges, prosecutors, defense counsel, an

administrators. These groups discuss specialized problems and their p

solutions. The small groups take notes on their discussions from which a mark 

be developed. Finally, the small group leaders from either GoA or the pr

government present summaries of their discussions to a final general session a

of the day.27

Organizing a PJC is a difficult and time-consuming process and beco

so as the organizing rule of law officer attempts to include all interested 

However, it is this type of coordination and inclusion that links agency 

with the Afghanis who are attempting to create the rule of law in courtr

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police stations. This host

nation lead in rule of law programs is vital to 

tinued vitality and eventual success.

A second lesson is that the military is not the most qualified or approp

to conduct many aspects of rule of law operations. Department of Defe

tive 3000.05 recognizes this and states, “[m]any stability operations tas

performed by indigenous, foreign, or U.S. civilian professionals.”28 Ther

ply tasks that the military is not the most qualified to perform. A recent af

review highlights this point:

The military possesses an organizational culture that is different from the re

interagency. The military skill sets are required in order to establish the rul

initially, and then other elements of national power are better suited to 

economic and industrial power. Two main points of understanding are (1) civi

not in the military chain of command and do not accept military leadership 

civilians cannot be ordered to do anything. The interagency operates on the 

effort, while the military prefers unity of command.29

Additionally, it would simply be counterproductive for the military to 

certain tasks, as doing so could create reliance on military action by the h

and others.

Despite the military’s inherently limited ability to implement the rule 

the absence of other options, the military may find it necessary to step 

uum in order to ensure that certain necessary tasks are accomplished. D

of Defense Directive 3000.05 also recognizes this side of the coin and, a

nizing that many stability operations are ideally left to others, s

“[n]onetheless, U.S. military forces shall be prepared to perform all tasks 

to establish or maintain order when civilians cannot do so.”30 While 

likely quibble with this statement, applying it is more difficult, especially 

ing when the time is right for the military to step up and perform these t

posed to waiting for others. This difficult decision must be made 

competently by commanders and JAs on the ground using their best ju

A third lesson is that the rule of law is more effectively implemente

players act in concert. JAs need to plan for and work within the multina

interagency environment in order to maximize efficiency, effectivene

gagement. If the US military doesn’t function within the joint, intera

multinational environment when forwarding rule of law initiatives, it si

not function effectively. As the Rule of Law Handbook accurately states, 

agreed upon by almost every individual who has worked in this area is 

inter-agency, and multinational coordination is the basic foundation up

all rule of law efforts must be built.”31 And further:

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py, 

contributor in isolation are at best less than optimal and at worst counterprod

the overall rule of law reform objectives being pursued. Quite simply, coordina

synchronization is to the rule of law effort what fires and maneuver is to 

intensity conflict.32

As the Army internalizes this, it will be better able to coordinate w

agencies.

Despite initial and continuing difficulties, there have been instance

the military has worked successfully with other agencies to create posit

The following illustration from the Rule of Law Handbook is based 

learned through after-action reviews. While lengthy, it demonstrates qu

the increased likelihood of success for rule of law operations when a broa

parties are involved.

Nowhere was the interagency success more evident than the justice 

achievements in the Wardak province known as the Wardak Model Justice Pr

late 2005, the Justice Sector Support Program (JSSP), a contractor of the [Dep

of State (DOS)] International Narcotics and Law Enforcement Affairs Burea

began a training program for provincial and district level judges and prosec

Maydan Wardak. Almost simultaneously, but without advanced coordinatio

rule of law and [Civil Affairs (CA)] personnel teamed up to build a 

administration building in Maydan Shar. Using [Commander’s Emergency R

Program (CERP)] funds, available to tactical commanders for urge

humanitarian rebuilding projects in post-conflict Afghanistan and Ir

[Combined Forces Command–Afghanistan (CFC-A)] rule of law and C

obtained the blueprints for a generic administration building from USAID

was using the blueprints to build up to 40 provincial courthouses thr

Afghanistan. Using these blueprints, CFC-A began construction in early 200

justice administration building in Maydan Shar.

Momentum gathered as the people of Maydan Wardak generated more enthus

the improvements being made. The USG agencies began to look more carefull

other’s rule of law activities in Maydan Wardak, and, aided by strong leadershi

Special Committee for the Rule of Law[,] began a concerted coordination 

build on those successes. Lessons learned were shared among the Special Coun

the Rule of Law agency representatives, resulting in more efficient delivery of p

projects.

USAID began construction on a new courthouse, and one of its contractors o

introduce its new paper-based court administration system in Maydan Shar

also provided a justice motor-pool (with maintenance and fuel packag

sponsored a public awareness campaign to let the citizens of the province k

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pg py j

contracted with an Afghan NGO to provide defense counsel services to 

defendants in Wardak and five other provinces. Ultimately, building on the co

efforts of the other USG agencies, the DOS announced in late 2006 that it woul

new, state-of-the-art prison and national corrections training facility in 

Wardak. The result of the ongoing combined efforts of these agencies was the 

Model Justice Project, the name reflecting the goal of the agencies involved 

justice system in Maydan Wardak should be rebuilt to serve as a model 

international community and the GoA for such improvements in other prov

Interagency cooperation and communications between the agencies invo

Wardak continues in 2007. A group of agency representatives and provincia

and government officials gathers monthly in Wardak to discuss problems w

future plans for further expansion of the Wardak Model Justice Project. Visi

this project remains high as the provincial governor continues to chair each 

meeting. Participants from all USG agencies are invited to these meetings, a

representatives of the international community and various NGOs. The 

arrived Turkish Provincial Reconstruction Team (PRT) brought a police train

with them, and this program has been incorporated into the Wardak Mode

Project. Similar efforts are being planned for Nangarhar, Bamyian, an

provinces as part of [a] wider DOS strategic plan for implementation of its ru

program.33

While the Wardak Project clearly illustrates the benefits that can b

when several agencies each work toward a common end, much of t

achieved in Wardak was more a product of coincidence than of premedit

dination on the part of the agencies involved. In the vast majority of cas

entious, institutionalized coordination will be needed, as illustrate

following example:

In early 2006, a Special Counselor on the Rule of Law was appointed by the 

coordinate interagency rule of law efforts in Afghanistan, to assure that g

overlaps in such efforts were corrected, and to assist in the development of a 

USG rule of law agenda. . . . A committee of representatives from each USG 

involved in rule of law activities was organized and was chaired by the 

Counselor who was later replaced by a senior lawyer who currently holds th

Rule of Law Coordinator. . . . Regular and frequent rule of law meetings have 

in much greater coordination of rule of law efforts at the strategic le

development of strong interpersonal and cooperative relationships, and a 

awareness of each agency’s rule of law activities among and between all par

and the rule of law [sic] Coordinator.34

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If the Provincial Justice Conferences program, the creation of the off

of Law Coordinator and the Wardak Project are indicative of the futur

agency and international coordination, there is much to be optimistic a

cerning rule of law operations in Afghanistan. The clear lesson learned 

only through complete coordination and inclusion of host-nation co

that all the disparate efforts to promote rule of law within Afghanist

successful.

III. To Be Effective, Military Rule of Law Operations Must Be Effect

In October 2002 after a year of operations in Afghanistan, Desmond 

Newton and Aaron B. Frank wrote in a National Defense University p

that

[t]he U.S. military, under the guidance of the Secretary of Defense, is moving t

new concept of military planning and operations that is agile and adaptab

conflict at hand. . . . The new concept called effects-based operations enco

processes, tools, and organizations that focus planning, executing, and a

military activities for the effects produced rather than merely tallying the nu

targets destroyed.35

The authors go on to write that what is needed is not a “traditional 

force analysis,” but “the skillful use of force in conjunction with diplom

nomic, legal, and other instruments of national power”36 that are chara

effects-based operations.

This effects-based approach has been used effectively in Afghanistan

larly in rule of law initiatives.37 Because effects-based operations are “f

tally about linking end states and objectives to tactical tasks through i

and producing desired effects to accomplish missions,”38 it is vital for JA

on the effect desired, rather than on the project that may or may not a

this effect. This is reflected in the Rule of Law Handbook, which states:

[I]nstitutional improvements can be valuable, but rule of law projects 

ultimately focus on bringing about particular effects, not on the institutions t

exist following the completion of the project. Thus, it is critical to keep in mi

values are represented by the rule of law so that those values, not some inter

institutionally focused objectives, drive the rule of law efforts.39

To illustrate this point, consider the administrative functioning of a 

tem. In many areas of Afghanistan, the court system had no adm

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structure, such as a docketing and case

tracking system, or method of 

and documenting case decisions. As JAs recognize the need to institutio

administration, they may be tempted to try and recreate a modern cou

complete with computerized databases and transfer and recording ca

However, one of the lessons learned from such efforts in Afghanistan is 

usually better to favor low-tech solutions, such as manual court reportin

per filing systems.”40 More modern systems require trained computer pe

operate and maintain the systems. Even more basic, such systems requir

ous access to electricity. While these aspects of running a court system m

issues in the United States, they are significant constraints in Afghan

other similar situations where the US Army operates. Such considerat

the Rule of Law Handbook to conclude, “[w]hen it comes to administra

structure, the clear lesson is that simplicity is key.”41

The lesson here is that a JA who is not focused on effects may instea

creating the best administrative court system possible, using the mo

technologies. However, if the effect desired is a functioning administra

system that can effectively maintain itself, a concentration on low-tech s

much more likely to succeed.

While this is a simplistic example, a similar analysis can be applied to 

operations generally. Important initiatives, such as establishing a defen

suring a trained and independent judiciary, establishing judicial oversig

lice activities and maintaining a penal system that complies with fun

human rights, all benefit from an effects-based approach.

A comprehensive and effective effects-based approach to rule of law o

has several components; the first is the completion of an initial assessm

assessments look at the current and prior situations and develop a factu

tion upon which future actions can occur. These assessments are often d

US Army by civil affairs personnel, but every “Judge Advocate engaged 

of law mission must become comfortable with creating and reviewing as

of foreign nations’ legal systems, including courts, private organizatio

and prisons.”42 Such assessments should include the history and tradition 

cal legal system, identification of which persons and organizations hav

the system, and what capabilities and needs currently exist.43 A good a

that is continually updated will provide the foundation for rule of law o

that can focus on and accomplish the desired rule of law effects.

A second component, and one of the most difficult aspects of effect-b

ations, is determining measures of effectiveness that will accurately refle

the desired effects have been achieved. Metrics, which are quantitative 

tive systems of measurement, have become an important part of assess

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law effectiveness. 

Meaningful metrics permit the Judge Advocate . . . t

measure whether the mission is accomplishing its goals, but to also con

mation to superiors and policy makers in a quantifiable manner that is 

anecdotal.”44 An example of a meaningful metric measuring overall mov

ward the rule of law would incorporate individuals’ perceptions of whe

what degree) the law is superior to individuals, is applied by an impartial 

pendent body and is applied consistently to all subjects.

In attempting to develop metrics that measure success, it is tempting t

focusing on means rather than effects. The Rule of Law Handbook remin

this urge must be overcome:

At the sustained deployment stage, merely focusing upon the number of cour

operating, the number of prison cells available, and the number of judges h

given number of cases begins to tell an increasingly irrelevant story. Now op

are moving into the higher realm of what constitutes establishment of the rule 

tyrannical system despised by its population can have courthouses, cells, a

adjudication statistics and yet the rule of law does not exist. Once a plateau of 

is reached where the facilities and personnel exist to operate the legal system, 

metrics upon which assessments and planning are built must shift to analy

efficacy and legitimacy of the system.45

The veracity of the effects-based approach is echoed in a recent publica

the Center for Army Lessons Learned. Michael McCoy writes that Prov

construction Teams

should design measures of effectiveness that delineate the perception of sa

reduction of security incidences that impact daily life, the capacity of the gov

to provide basic services and rule of law, and the popular acceptance of le

formal and informal organizations and leaders by both the majority of the po

and disaffected elements of the population.46

Designing metrics that adequately measure the desired effects and pr

ful input into the way forward is a difficult task. It is easy to see why Samu

writing concerning V Corps operations, concludes that “[t]he complex

ducting non-lethal Effects Based Operations in a Joint, Interagency, Int

mental, and Multinational (JIIM) environment challenges the mindset

and organization of our warfighting formations.”47

Despite some difficulties, this effects-based approach has been utilized 

success in Afghanistan by members of the 10th Mountain Division who

ences were recorded in a recent Initial Impressions Report. Prior to deplo

division developed a comprehensive effects-based plan to guide it during 

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Afghanistan. Its objectives were to improve security; support the local, 

and national governments; and improve local and provincial infrastructu

Beginning with their campaign plan, operational desired effects were iden

“results/conditions” that[,] when achieved, represent accomplishing stated ob

Desired effects were clearly articulated for each operational objective that 

served as guides for developing tactical missions and tasks for subordina

Throughout all planning and coordination activities, the staff was disciplined t

stated effects in the campaign plan and then develop activities and tasks 

generate the stated desired effects.

The Division’s operations were assessment driven. Daily, weekly, and 

assessments of the progress of operations helped determine what [Combin

Task Force]-76 was doing right and what areas of the plan needed adjustmen

assessments were focused on both measures of performance of tasks and mea

effectiveness in achieving desired effects.48

The Initial Impressions Report concludes by stating that “[t]he Divis

comfortable with using an effects-based approach to guide operations” 

10th [Mountain] was clearly very successful during their year in Afghan

Though reformulating efforts to focus on effects and finding meanin

rics to measure these effects may be difficult, it is clear that the effects

proach to rule of law operations is the most effective. The lesson learned 

that they must adopt and internalize the effects-based approach and be

engaged in the metrics process of assessment and analysis.

IV. Conclusion

As is aptly illustrated by the Naval War College’s dedication of a comp

shop and volume of the “Blue Book” to this topic, there are numerous les

learned from the current military operations in Afghanistan. For the 

some of the most significant legal lessons have been in the area of rule of 

tions. The Army is still in the process of learning many of these lessons

have already been put into practice, benefitting operations in Iraq. As w

to apply what we have learned by integrating the rule of law into militar

cooperating with other agencies and measuring the success of our ope

their effects, future rule of law efforts will better serve the US strategi

interest.

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Notes

1. The White House, National Security Strategy of the United States 3, 9–10, 1

(Sept. 2002), available at http://www.acq.osd.mil/ncbdp/nm/docs/Relevant%20D

_security_strategy.pdf.

2. National Security Presidential Directive/NSPD-44 (2005), available at http://w

irp/offdocs/nspd/nspd-44.html.

3. Center for Army Lessons Learned, Division Commanders Guide to Informa

tion in OIF & OEF Handbook (Dec. 2007), available at https://callsearch.leavenwort

CALL2Search/isysquery/9e25b547-35fc-469d-8aaf-84ad401c78c1/19/doc/ (availabl

DoD employees and their contractors through approved website access).

4. CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE 

LEGAL CENTER SCHOOL AND JOINT FORCE JUDGE ADVOCATE, UNITED STATES JO

COMMAND, RULE OF LAW HANDBOOK: A PRACTITIONER’S GUIDE FOR JUDGE A

(2007) [hereinafter RULE OF LAW HANDBOOK].

5. Id. The UN Security Council’s definition is a good starting point and com

most definitions of the rule of law: (1) The law is supreme, (2) the law is applied by a

ent institution (such as a judicial branch) and (3) the law applies equally to all subjec

See FEDERAL MINISTRY FOR EUROPEAN AND INTERNATIONAL AFFAIRS (AUSTRIA)&

FOR INTERNATIONAL LAW AND JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW

SECURITY COUNCIL AND THE RULE OF LAW: THE ROLE OF THE SECURITY C

STRENGTHENING A RULES-BASED INTERNATIONAL SYSTEM 3–4 (2008).

6. R (Al-Jedda) v. Secretary of State for Defence, [2007] UKHL 58 (House of Lo

7. Behrami v. France and Saramati v. France, Germany and Norway, apps. no

and 78166/01, 45 Eur. Ct. H.R. 41 (2007) (Grand Chamber).

8. Amnesty International Canada v. Canada (Attorney General), 2008 FC 336 

9. S.C. Res. 1806, U.N. Doc. S/RES/1806 (Mar. 20, 2008); S.C. Res. 1662, U.N. 

1662 (Mar. 23, 2006); S.C. Res. 1746, U.N. Doc. S/RES/1746 (Mar. 23, 2007); S.C

U.N. Doc. S/RES/1802 (Feb. 25, 2008).

10. Rule of Law Handbook, supra note 4, at i.

11. Chairman of the Joint Chiefs of Staff, Joint Publication 3-0, Doctrine for J

tions, at V-1 (Sept. 2006, with change 1, Feb. 13, 2008), available at http://www.dtic.m

jel/new_pubs/jp3_0.pdf [hereinafter Joint Pub. 3-0].

12. Department of Defense, Directive 3000.05, Military Support for Stabili

Transition, and Reconstruction (SSTR) Operations para. 4.1 (Nov. 28, 2005), availa

www.dtic.mil/whs/directives/corres/pdf/300005p.pdf [hereinafter DoD Directive 3

also Joint Pub. 3-0, supra note 11, at V-1, which defines stability operations as “mis

and activities [that] seek to maintain or reestablish a safe and secure environment 

essential governmental services, emergency infrastructure reconstruction, or hu

relief.”

13. Joint Pub. 3-0, supra note 11, at IV-29.

14. Id. at IV-30.

15. Rule of Law Handbook, supra note 4, at 8.

16. Id. at 16.

17. Center for Army Lessons Learned, Southern Afghanistan COIN Operation

available at https://callsearch.leavenworth.army.mil/CALL2Search/isysquery/9e2

-469d-8aaf-84ad401c78c1/35/doc/ (available to current DoD employees and their 

through approved website access).

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p

19. Id. at 51 (footnote omitted).

20. M. Ashraf Haidari, Paris Conference: Aid Effectiveness Key to Addressing A

Rebuilding Challenges (June 12, 2008), EURASIANET, http://www.eurasianet.org/de

insight/articles/eav061208f.shtml.

21. One of the three focuses of Provincial Reconstruction Teams is to “[i]ncre

cial stability through international military presence and assist in developing nasc

tion security and rule of law capacity.” Michael McCoy, Center for Army Lesso

Provincial Reconstruction Team Playbook (Sept. 2007), available at https

.leavenworth.army.mil/CALL2Search/isysquery/9e25b547-35fc-469d-8aaf-84ad401c7

(available to current DoD employees and their contractors through approved web

[hereinafter PRT Handbook].

22. For example, DoD Directive 3000.05, supra note 12, para. 4.4 states:

Integrated civilian and military efforts are key to successful stability ope

Whether conducting or supporting stability operations, the Department of D

shall be prepared to work closely with relevant U.S. Departments and Agencies, 

governments and security forces, global and regional international organizatio

and foreign non-governmental organizations, and private sector individuals a

profit companies.

23. National Security Presidential Directive/NSPD-44, supra note 2, para. 3.

24. Id., para. 4.

25. US Department of State, Office of the Coordinator for Reconstruction and S

http://www.state.gov/s/crs/ (last visited Feb. 18, 2008).

26. US Department of State, About S/CRS, http://www.state.gov/s/crs/c12936.h

ited Feb. 18, 2009).

27. RULE OF LAW HANDBOOK, supra note 4, at 56 (footnote omitted).

28. DoD Directive 3000.05, supra note 12, para. 4.3.

29. Center for Army Lessons Learned, Leader Challenges – OEF and OIF (Dec. 2

able at https://callsearch.leavenworth.army.mil/CALL2Search/isysquery/9e25b547-35f

-84ad401c78c1/33/doc/ (available to current DoD employees and their contractors 

proved website access).

30. DoD Directive 3000.05, supra note 12, para. 4.3.

31. RULE OF LAW HANDBOOK, supra note 4, at ii.

32. Id.

33. Id. at 54–55 (footnote omitted).

34. Id. at 52–53 (footnote omitted).

35. Desmond Saunders-Newton & Aaron B. Frank, Effects-Based Operations: 

Analytic Tools, DEFENSE HORIZONS, Oct. 2002, at 1, http://www.ndu.edu/inss/Def

193-619_DH19.pdf.

36. Id. at 2.

37. Center for Army Lessons Learned, A Special Study on Effects-Based A

Military Operations (May 2005), available at https://callsearch.leavenwort

CALL2Search/ isysquery/263df3d8-ca0e-41c9-9d43-0ef4907e39bc/23/doc/ (availab

DoD employees and their contractors through approved website access).

38. Id.

39. RULE OF LAW HANDBOOK, supra note 4, at 19 (footnote omitted).

40. Id. at 75.

41. Id.

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43. Id. at 121–34.

44. Id. at 134.

45. Id. at 137.

46. PRT Handbook, supra note 21.

47. Samuel R. Young, Center for Army Lessons Learned, V Corps as Multi-Natio

Iraq (June 2007), available at https://callsearch.leavenworth.army.mil/CALL2Searc

263df3d8-ca0e-41c9-9d43-0ef4907e39bc/18/doc/ (available to current DoD emp

their contractors through approved website access).

48. Mike Stark, Initial Impressions Report (IIR) - 10th Mountain Division - Obs

a Modular Force Division Operating as a CJTF in OEF, 1.3 (2007), available 

callsearch.leavenworth.army.mil/call2-search/isysquery/556986ea-00d2-4eb4-a5b6

-4c739a45695d/1/doc/ (available to current DoD employees and their contractors t

approved website access).

49. Id.

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PART VI

HUMAN RIGHTS ISSUES

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XIX

Is Human Rights Law of Any Relevanc

Military Operations in Afghanistan

Françoise J. Hampson*

I. Introduction

Newspaper reports in Western Europe and the publications of rep

man rights groups, such as Human Rights Watch and Amnest

tional, give the impression that innocent villagers are being indiscrimina

by coalition forces in Afghanistan.1 News reports also suggest that Afgh

plain of the lack of physical security and of very slow progress in the dev

of physical and social infrastructure. The issue is not, in this context, wh

claims are well founded. The perception of the Afghans and of the hum

groups is that civilians are being killed unnecessarily and, by implicatio

fully. The forces involved claim to be showing the most rigorous adhere

requirements of the law of armed conflict.2 Part of the explanation for 

perceptions may be that the Afghans and the human rights groups are t

terms of respect for human rights law, in the context of a law and order 

whereas the military forces are thinking exclusively in terms of the law 

conflict. This raises the question of the relevance of human rights law t

duct of military operations in Afghanistan, the subject of this article.

Before embarking on an analysis of the principal questions at issue, 

sary to make a number of preliminary points. The first is that it will be ass

two, legally significantly different operations are being conducted in Af

* Professor, Department of Law & Human Rights Centre, University of Essex, UK.

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One is the International Security Assistance Force (ISAF) operation, w

Security Council mandate and is there to assist the government of Afgha

is said to be dealing with an insurgency, led by the Taliban, and to be go

the rules applicable in non-international armed conflict. The second is 

Enduring Freedom, which is said to be a continuation of the conflict wh

in 2001 between an ad hoc coalition, working with the Northern Allianc

Taliban and Al Qaeda forces. This conflict is said to be international in na

characterization of the conflict(s) is not without controversy but will not 

explored here.

The second preliminary point concerns the nature of human rights law

with certain armed forces shy away from anything to do with human 

and, by extension, with human rights more generally, perhaps at least in p

to fear of the unknown.4 They claim that it has nothing to do with them 

operations, a claim that, in such broad terms, is patently untrue. This arti

hope to provide a general introduction to human rights law; for that, re

to seek elsewhere.5 It is, nevertheless, necessary to highlight certain featu

body of rules. First, there is a difference between human rights law an

rights. The former refers to legal obligations of States. The focus will be p

on treaty law, which is of course subject to ratification. The main emph

on the international treaties, notably the International Covenant on Civ

litical Rights, with only occasional reference to the regional treaties. It s

be forgotten, however, that there are human rights mechanisms that, u

owe their existence to the UN Charter.6 All States are subject to their scr

norms, respect for which they monitor, are either part of customary hum

law or part of Charter law. Human rights more generally refers to value

cepts that may (or should) be the basis of policy decisions, such as the r

democracy, participation, transparency and accountability. Human rig

sense is part of the “good governance” agenda.

Second, human rights law is civil in character, like any other area of pu

national law. States found to have violated human rights law may be r

amend their law and to make restitution. The failure to investigate an alleg

rights violation and, where appropriate, to institute domestic criminal pr

may be a violation of human rights law but the enforcement of that bod

the regional or international level does not involve criminal proceeding

dividual perpetrator is not the human rights violator. The State which is 

ble for the non-investigation will be held responsible under human right

points to a significant difference between human rights law and the law 

conflict. The former only binds the State. Human rights law is not ba

bond of citizenship. The rights are said to be inherent in every human b

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means that they do not need to be earned and are not dependent upon go

ior. Human rights law is about the relationship between those who ex

thority and those subjected to its exercise. It applies to anyone subject to t

of such authority or jurisdiction, a concept that will be examined further 

Third, human rights law contains both positive and negative obliga

only is there the negative obligation, for example, not to torture. Only S

can trigger responsibility for breach of the negative obligation. There is a

tive obligation to protect persons from torture, both at the hands of St

and third parties. This is generally satisfied by having a properly functio

system that penalizes the behavior in question and an effective system of 

tion and prosecution that ensures that wrongdoers are punished.8 In som

stances, it may require more than that in the way of protection.9

The fourth element represents a sweeping generalization. Provided t

is not forgotten, the claim may still offer useful insights. Human rights la

as enforced by regional human rights courts, is designed principally to 

after the event. It provides general principles which enable a judge to de

a precise set of circumstances whether a rule has been violated. It is capab

siderable fine-tuning, particularly with the development over time of fai

tent case law. What permits such fine-tuning is the use of limitation clau

are an intrinsic part of the elaboration of many rights. For example, ther

solute right of freedom of expression. Rather, the starting point is that su

exists but it can be subject to restrictions imposed by law and based on on

generally defined grounds, on condition that the limitation is both nec

proportionate.10 In the case of negative obligations, responsibility often 

be based on the result. One exception is responsibility for unlawful killin

what the reasonable perpetrator thought would obviously be relevant. In 

the law of armed conflict is designed to provide guidance to armed fo

time decisions are made and actions undertaken. The emphasis in crim

ceedings on what was known at the time should avoid the danger that d

tions of responsibility after the event will be based on the twenty-twent

hindsight.11 The fine-tuning occurs in the mind of the commander, r

that of the judge.

The fifth issue is that the starting point of human rights law is the prote

est or right. Any limitations or exceptions have to be interpreted restrictiv

case of the law of armed conflict, the law itself represents a balance. One s

balance should not be interpreted restrictively in relation to the other. Thi

ble explanation for the way in which certain human rights groups, on occ

pear to interpret the law of armed conflict; they are treating the pro

civilians, for example, as the starting point and any restrictions as an ex

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This article will consider five issues: first, whether human rights law re

plicable when the law of armed conflict is applicable;12 second, wheth

rights obligations apply extraterritorially; third, the impact of the territo

human rights obligations for other States assisting it; fourth, the effect of 

Council mandate on legal obligations that would otherwise be applicab

nally, whether human rights notions could offer useful guidance to arm

whether or not human rights law is applicable de jure.

It is clear that the interplay between human rights law and the law of a

flict is currently a source of confusion and the subject of debate. There ar

explanations for how we have come to find ourselves in this muddle. T

armed conflict, historically, regulated inter-State conflicts and civil wars 

tensity that they resembled inter-State conflicts. In view of the impact o

on, for example, trade and ports, third States had to recognize belligeren

tect their rights as neutrals.13 In 1949, there was the first attempt in tre

regulate every type of internal conflict, provided that it constituted an a

flict and not merely isolated and sporadic acts of violence.14 Tradition

conflicts had been purely the province of domestic law, including con

law, criminal law and civil liberties. Domestic law determined the circum

which an emergency could be declared. It also dealt with the consequenc

an emergency, including civil liberties safeguards which could not be s

In other words, Common Article 3 of the Geneva Conventions15 mad

albeit very minimal ones, in the relationship between the individua

State.16 At about the same time, domestic civil liberties rules surfaced on 

national plane as human rights law.17 The shift from domestic to interna

owed much to the desire to prevent what was perceived to have contribu

causes of the Second World War and to the appalling conduct of those 

governmental authority during the course of the war, in both national 

pied territory. The respect for human rights was seen as a way of ensurin

ple did not “have recourse, as a last resort, to rebellion against tyr

oppression.”18 It was necessary to reinforce domestic provisions, design

vent the misuse of authority but which could be subverted, with int

guarantees. The regional and international enforcement of human right

an end in itself. It is designed to persuade a State to adopt the necessary m

the domestic level.

It was recognized that States might well have to deal with emergencie

certain rights might be subject to unusual restrictions, but it was made 

even in such circumstances, certain guarantees had to be maintained

words, the very raison d’être for the international spine-stiffening of dom

liberties rules was the risk of abuse and misuse of governmental au

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emergencies or periods of conflict. The law sought to prevent the situa

deteriorating to that level but, if it did so, the law sought to ensure that 

not get even worse. From the outset then, one could have predicted o

tween the new inroads made by the law of armed conflict into internal co

the internationalization of domestic constitutional and civil liberties g

Superficially, there may be an obvious solution for those who seek to ke

of armed conflict and human rights law separate, rather than to seek an a

dation between the two bodies of rules. It would involve eliminating 

armed conflict rules applicable in non-international armed conflict, o

perhaps those non-international conflicts which resemble internatio

conflicts. Human rights law would be the only body of rules regulat

within a State, including armed conflict. Quite apart from the problem o

ing a widely accepted body of rules19 and the question of the desirabilit

so, it is difficult to see how such a rigid distinction could be made. W

happen to those rules applicable within a State’s own territory during int

armed conflict?20 Would States be willing to assist other States dealing with 

gency, if they were subject to human rights law, without any law of arme

inspired modification?21

Where we are at present may appear chaotic and confused but the on

is to find a way forward, not back. The first step is to seek to clarify the re

between the two bodies of rules.

II. Whether Human Rights Law Remains Applicable When th

Law of Armed Conflict Is Applicable

Before addressing the principal question, it is again necessary to make tw

nary points. First, as any legal system develops, it has to address the ques

boundary between two sets of rules. An obvious example in the context o

law is the boundary between contract law and tort. Where a party to a co

charges his obligation negligently, occasioning loss to the other party, s

claim be brought for breach of contract or for negligence? There is no q

arbitrarily restricting either body of rules. It is a matter of finding a suitab

modation. The same issue has already arisen and been dealt with in int

law. The law of the sea, for example, has had to find a way to accommoda

passage rights of warships, including submarines, and the need of the coas

regulate and protect a range of interests and activities in the territorial sea

ous zone and exclusive economic zone.22 In other words, there is nothi

unique in the potential overlap of the law of armed conflict and human ri

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The second point is that the relationship between the two bodies o

general question, rather than one relating to particular rules. It has never 

gested, for example, that one answer could be given for rules of int

armed conflict and another for rules of non-international armed confl

the applicability of the law of armed conflict has the effect of “turning o

plicability of human rights law or it does not. This is a further reason wh

tion discussed at the end of the introduction is, in fact, no solution.

Three separate questions need to be distinguished. The first is wheth

rights law remains applicable at all when the law of armed conflict is ap

that is answered in the affirmative, two further, related questions becom

First, to what extent is human rights law applicable and, second, how, i

the relevant human rights norms affected by the applicability of the law 

conflict?

A. Whether Human Rights Law Is Applicable at All

There is overwhelming evidence that human rights law does remain 

when the law of armed conflict is applicable. This is to be found in treat

ticularly those treaties dealing with civil and political rights. The d

clauses23 provide that certain rights remain applicable even during “wa

public emergency.”24 Such situations clearly include ones in which t

armed conflict will also be applicable. A large majority of States are bou

or more of such treaties.25 State practice confirms this initial impression

political organs are concerned, the General Assembly, the Security Coun

Human Rights Council (and its predecessor, the UN Commission o

Rights) have passed both subject and situation-specific resolutions in w

ence is made to both human rights law and the law of armed conflict.26 

of judicial and quasi-judicial organs, the International Court of Justice (

clearly that human rights law remains applicable in all circumstances, subj

derogation.27 The principal human rights treaty monitoring body at th

tional level, the Human Rights Committee, in its general comment on stat

gency,28 in its concluding observations on State reports29 and in determ

individual cases, has equally made it clear that human rights law is not di

the applicability of the law of armed conflict.30 The most relevant, in this 

the Special Procedures have also expressed concerns framed in terms 

rights law in situations in which the law of armed conflict was applicable.3

gional level, the Inter-American Commission on Human Rights and 

American Court of Human Rights, the former European Commission 

Rights and the former and present European Court of Human Rights, and t

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Commission on Human and Peoples

Rights have also applied human ri

circumstances in which the law of armed conflict was clearly applicable

The only currently dissenting view is that of two States: Israel and t

States. Israel appears never to have disputed the applicability of the Int

Covenant on Civil and Political Rights in Israel itself, even though, as a p

tual and/or arguable armed conflicts, it has rights and obligations under 

armed conflict which have an impact within Israel.32 Its objection has f

the applicability of human rights law in occupied territory, which involve

relationship with the law of armed conflict and the question of the extra

applicability of human rights law.33 Since the overwhelming weight o

suggests that the applicability of the law of armed conflict does not displ

human rights law, the question then becomes whether Israel and the Un

can claim to be persistent objectors. The first difficulty for the United Sta

at the time of its ratification of the International Covenant on Civil an

Rights, the approach of the Human Rights Committee was already clear

ure of the United States to enter a reservation or interpretative declarati

specific question calls into question the persistence of any alleged obje

similar argument could be made in relation to Israel, which ratified th

tional Covenant only eight months earlier, on October 3, 1991. First, in 

such a possible claim, it should be noted that the relevant treaty languag

biguous. Presumably, the clearer the rule, the more is expected of a wou

sistent objector. Second, it is not clear whether the persistent-objector 

applies to every type of rule of international law. The rule at issue here is 

relationship between the two bodies of rules, rather than a rule of condu

clear whether that makes a difference. The third difficulty is more funda

the principal ICJ decision addressing the persistent-objector principle, 

Norwegian Fisheries Jurisdiction Case, it was not the persistence of Norw

tions that was decisive but the acceptance of or acquiescence in those obj

the United Kingdom.35 Whose acceptance of an objection is required und

rights law? In particular, how important is the lack of acceptance by a tre

toring body, as opposed to other High Contracting Parties? Human righ

are particular, but not unique, in creating “objective” obligations.36 Th

simply reciprocal inter-State undertakings. Does this imply that States 

gated the power to accept or reject alleged persistent objection to the tre

toring body? Even if that is not the case, is the silence of other High C

Parties evidence of acceptance, in the face of the opposition of the treaty 

ing body? This is not the only area where the rules of international law h

to keep pace with the development of new types of international machi

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It seems clear that human rights law remains applicable even when 

armed conflict is applicable and it seems doubtful that Israel and the Un

can avoid that conclusion by seeking to rely on the persistent-objector p

B. To What Extent Is Human Rights Law Applicable When the Law o

Conflict Is Applicable?

The General Assembly and the Security Council have not addressed this 

sue. Since their resolutions confirm that both human rights law and 

armed conflict may be simultaneously applicable but do not explain th

which the former is applicable, they should probably be interpreted as 

the extent that” human rights law is applicable.

The ICJ has been much more specific. In the Advisory Opinion The Le

quences of the Construction of a Wall in the Occupied Palestinian Territory

stated that human rights law remains applicable subject only to derog

then applied its statement in a contentious case, Armed Activities on the T

the Congo,

39 where it found violations of both the law of armed conflict 

of Additional Protocol I) and Article 6 of the International Covenant on 

Political Rights (prohibition of arbitrary killings) on the basis of the same 

facts found were stark and involved a non-derogable right. The case 

sheds little light on the extent to which human rights law was applicable

On the basis of the ICJ statement in the Advisory Opinion, all non-

rights remain applicable in the usual way. It also implies that if a State ha

sen to derogate, the full range of human rights obligations will be applica

point it is necessary to explain briefly what is meant by derogation und

rights law.

Some, but not all, human rights treaties provide a facility for States

tions of public emergency threatening the life of the nation, they m

some, but not all, of their human rights obligations but any such modifi

to be both necessary and proportionate. States are free not to derogate

situation in which they would be legally entitled to do so. There is a ran

sons why a State might fail to derogate. The first is that lawyers in the rel

ernment department may simply not think of it. This could either be th

of negligence or incompetence on the part of the relevant governmenta

ties or they may not take their international law, or at least their human 

obligations sufficiently seriously to conform to the procedural requirem

other possible explanation could be that the State does not wish to signa

tence of an emergency on its territory. While this is thought to be a 

explanation for the unwillingness of States to acknowledge the appli

Common Article 3 of the Geneva Conventions, this appears less convin

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explanation for non

derogation. If a State wishes to take measures not 

permitted under human rights law, it is required to derogate. It is clear t

lic emergency does not de jure trigger the modified applicability of hum

law. This is in contrast to the law of armed conflict, which is applicable b

the facts and whether or not the State(s) in question concede(s) its appli

is therefore easy to envisage a situation in which a State has not derogat

which the full range of human rights obligations are applicable accord

ICJ, but in which the law of armed conflict is applicable.40 It is not clear 

State which is assisting a territorial State in dealing with a non-int

armed conflict can rely on the derogation of the latter or whether it can 

in its own right, based on an emergency threatening the life of the natio

its own territory.

It is up to the human rights body to determine whether the situation 

a public emergency threatening the life of the nation.41 The body will 

State a “margin of appreciation” in its characterization of the situation

the human rights treaties, the State is required to notify a designated aut

it is invoking its power to derogate.43 It has to provide an indication of w

gations it is derogating from, what measures it has introduced and an ex

of the need for those measures. Certain provisions, non-derogable righ

be modified in any circumstances. While the list of non-derogable rig

from treaty to treaty, they all include the prohibition of arbitrary killings

and slavery and do not include the provision dealing with detention.45

Just because a right is potentially derogable does not mean that the 

whole can be suspended. As indicated above, any exceptional restriction 

both necessary and proportionate.46 Furthermore, certain restrictions ar

be more difficult to justify than others. For example, while it may be poss

tify the creation of a new ground of detention, such as internment or ad

tive detention, it will be difficult to justify suspension of all form of 

lawfulness of detention (habeas corpus and amparo).47

This brief explanation of derogation helps put in context the statem

ICJ that human rights law remains fully applicable, subject only to dero

In General Comment No. 29, the Human Rights Committee has p

much fuller analysis of the extent to which human rights law remains 

during public emergencies.48 It first clarified the types of situations in w

gation is possible.49 It emphasized that the limitation clauses enable the C

to address a range of troubled situations without recourse to derogat

Committee pointed out that for a situation to be sufficiently grave as to j

ogation will generally mean that the law of armed conflict, in the form 

Common Article 3, will also be applicable.51 That reduces the chance of t

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a gap, where some human rights guarantees have been withdrawn but law 

conflict protections are not available.52 The Committee identifies three b

ciples. First, non-derogable rights remain applicable at all times.53 The s

third principles concern potentially derogable rights. A requirement 

rights law which is prima facie derogable may, in effect, be non-derogabl

a vital role in preventing violations of a non-derogable right.54 An obviou

is review of lawfulness of detention, which is said to play a key role in p

torture and other forms of proscribed ill treatment. It is not that this elem

ticle 9 of the International Covenant on Civil and Political Rights, dealin

tention, is added to the list of non-derogable rights. That would fly in the 

express words of the treaty. It is rather that States are likely to find it imp

justify the necessity of the total extinction of the right, even though th

able to explain the necessity of changes in its usual modalities. This secon

may apply to specific elements in the context of a wider right. The third 

concerns the essence or core of the wider right itself. The Committee sugg

it would be hard to justify the suspension of the very essence of a right, ev

ous constituent elements could be modified.55 Again, an obvious examp

the field of detention. While, in an emergency, it may be possible to cr

tional grounds of detention, to modify the modalities of review of lawf

to lengthen the period during which a person may be held before being b

fore a judicial officer, it would never be possible to justify unacknowled

tion (disappearances).56 To hold otherwise would be to deprive the deta

protection of the law.

When monitoring State reports, the Human Rights Committee has 

made clear, in the Concluding Observations, the precise basis of its analy

the Committee raises one issue but not another, it is not clear whether it

raise the second is because the alleged violation would, on account of th

stances, be covered by the operation of a limitation clause or because it 

covered by a derogation or because it did not have the time to consider t

All that can be said in general terms is that the practice of the Comm

Concluding Observations appears to reflect General Comment No. 29

noteworthy that no State has objected to the General Comment, even tho

States reacted to General Comment No. 24 on reservations.58 At the very 

suggests that the United States, the United Kingdom and France (the thre

question) had no objection to General Comment No. 29.59

The Human Rights Committee has dealt fairly regularly with traditi

international armed conflicts, that is to say an armed conflict between t

on the territory of one State, where the State itself may be a party to the co

has also dealt with situations of occupation and, less frequently, w

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engaged in peace support operations outside national borders.

It is less 

it would deal with the relevance of human rights law to an internatio

conflict. The ICJ’s statements are in fact contradictory. On the one hand

that human rights law remains applicable in all situations, subject only 

tion, which implies that that body of law is relevant even in relation to th

of military operations.62 On the other hand, the Court has stated,

As regards the relationship between international humanitarian law and hum

law, there are thus three possible situations: some rights may be exclusively m

international humanitarian law; others may be exclusively matters of huma

law; yet others may be matters of both these branches of international law.63

This implies that there are situations not regulated by human rights law 

the earlier comment, it is not clear what those might be.

The Inter-American Commission on Human Rights and the Inter-

Court of Human Rights offer a more complicated picture. They app

rights law, taking account of any derogation, in situations of emergency

circumstances, however, they will take account of the law of armed con

terpreting human rights law.65 They do so proprio motu. They only mak

of violation of human rights law, not of the law of armed conflict. What i

is whether they take account of the latter in all situations in which it m

vant. If not, what criteria are they applying? Does it depend on the iss

whether there is a relevant and specific rule of the law of armed conflict

The European Court of Human Rights and the former European Co

of Human Rights have not articulated a view of the relevance of the law 

conflict, even though they have dealt with situations subject, or arguably 

non-international armed conflict, such as Northern Ireland, Southeast T

Chechnya, and even an international armed conflict, the conflict betwe

and Cyprus. In some cases, the applicant’s legal representative raised th

law of armed conflict rule, usually to reinforce the human rights law rul

words, it is not that the issue has not been raised before the European hum

institutions. To date, it would appear that, in all or virtually all cases o

possible non-international armed conflict, the act would have been in 

both human rights law and the law of armed conflict. In those situa

European human rights bodies have applied human rights law in the no

subject only to derogation where applicable. Most notably, the European 

sion of Human Rights failed to apply the law of armed conflict to dete

lawfulness of the detention of prisoners of war in the conflict between T

Cyprus.67 Turkey had not submitted notice of derogation under whic

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have introduced a ground of detention not normally lawful. The detenti

oners of war was therefore found to be unlawful! One of the ways in which 

has avoided having to face the issue is as a result of its view of the extrater

plicability of human rights law, which will be discussed in the next secti

C. How Are the Relevant Human Rights Norms Affected by the Appli

of the Law of Armed Conflict?

The focus in this subsection will be on the human rights norms dealing 

ings and detention. It should be noted that other rights are also relevan

those relating to due process, freedom of speech, freedom of assembly an

to a remedy, particularly when States are assisting another State.68

Superficially, there should be no real difficulty in reconciling human 

and the law of armed conflict for the Human Rights Committee, and for 

American Commission on Human Rights and the Inter-American 

Human Rights. In both cases, the human rights provision prohibits arb

ings.69 The right is non-derogable.70 What would be arbitrary in a peace

text, in which the framework of analysis is a law and order paradigm, 

same as what would be arbitrary in a law of armed conflict context. It 

straightforward for the human rights monitoring bodies to interpret “ar

meaning that a killing in conformity with the law of armed conflict wa

trary in a conflict context or at least where it occurred as part of a milit

tion. It should be noted that this would represent a reduction in the curre

protection in non-international armed conflicts, where the framework 

usually the law and order paradigm.71

There is, however, a real difficulty for parties to the European Conv

Human Rights. The provision on the use of potentially lethal force lists ex

the only grounds on which State agents may resort to such a use of fo

based on the law and order paradigm. The derogation provision expressly 

the possibility of derogation so as to permit “lawful acts of war.”73 In or

voke the provision, the State would have to derogate. No State has ever 

from Article 2 of the Convention, whether involved in a non-internatio

conflict or international armed conflict and whether the conflict was i

territory or extraterritorial. Since the law of armed conflict is not app

virtue of its being invoked but by virtue of the facts, it might be open to 

pean Court of Human Rights to choose to use the law of armed conflict 

of reference.74 It has not yet chosen to do so in relation to non-int

armed conflicts in national territory.75 It has generally been able to avoi

in extraterritorial situations. The Court may have to confront the is

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inter

State case introduced by Georgia against Russia and the many 

cases brought by Georgians and Russians.

In the case of detention, the International Covenant on Civil an

Rights and the American Convention on Human Rights again prohibi

detention.76 The provisions are potentially derogable.77 There are elem

right which may be modified but from which it is unlikely that States 

lowed to depart completely, notably the provision for review of dete

seems clear that a State may, by derogation, introduce additional e

grounds of detention. It is not clear whether a State needs to derogate i

justify internment or administrative detention.79 The case law makes it 

detention has to be lawfully authorized. The law of armed conflict itsel

legal authority for detention under Geneva Conventions III and IV in int

armed conflicts. There is no equivalent provision in relation to non-int

armed conflicts. Additional Protocol II recognizes that people may be de

provides guarantees for such detainees but it does not itself authorize 

This is not surprising, since the underlying assumption is that the fightin

ring in the territory of one State and the grounds of detention would be e

be regulated by the domestic law of that State. This is most likely to be 

where States are involved in an extraterritorial non-international arme

That will be discussed in the following sections.

The situation is different for parties to the European Convention fo

Rights. Again, the Convention does not prohibit arbitrary detention 

exhaustively the only legitimate grounds of detention.80 In order to intr

ditional grounds, a State is required to derogate. If it does so, it may be a

tify the introduction of internment or administrative detention.81 Th

extraterritorial detention will be examined in the next section.

It therefore appears that it may be possible for at least some human rig

to accommodate the law of armed conflict but that it may be necessary t

to make lawful exceptional grounds of detention. It was also seen that th

tion of the law of armed conflict would entail the reduction of existing 

in relation to arbitrary killings, at least in non-international armed conflic

rights bodies can take account of the law of armed conflict but should 

and, if so, in what circumstances?

When dealing with the inter-relationship between the law of armed co

human rights law, the ICJ referred to the former as the lex specialis. In s

this is unhelpful because lex specialis more easily applies to a vertical re

between two areas of law.82 When dealing with a commercial tenancy, a

rules regarding such tenancies are the lex specialis as compared to gener

tenancies. In this case, however, two separate legal areas are bumping 

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another. The relationship is horizontal, rather than vertical. Nevertheles

in general terms what the ICJ is saying. Law of armed conflict rules are b

to conflict situations because they have been designed for that context. W

clear is what precisely that means in practice. Does it mean that in con

tions all human rights norms should be interpreted in the light of the law 

conflict, so that no violation will be found if there is no violation of th

law? That would be unworkable. There is nothing in the law of arme

about the right to marry. The mere fact that suspending the right to ma

not violate the law of armed conflict, which does not address the issue

sufficient ground for suspending the human rights provision. Another 

would be that a human rights norm should only be affected by the law 

conflict where there is a relevant law of armed conflict provision. This w

to the bizarre result that the law of armed conflict would affect killings a

tion but not the right to demonstrate.83 It has also been suggested tha

rights body should move backward and forward between the two areas 

pending on the issue.84 On that basis, the law of armed conflict would 

grounds of detention and review of detention in international armed co

not in non-international armed conflicts. Since the law of armed conflic

define “court” or “tribunal,” the test to be applied would be a human 

test. With regard to issues such as the right to summon witnesses, whe

again no provision in the law of armed conflict, reliance would be plac

man rights law. It is submitted that the to-ing and fro-ing between tw

gimes is unworkable in practice. It is rather as though parts of a Merc

fitted to a VW Beetle. Human rights law might offer useful guidance as to 

which need to be addressed, but to suggest that human rights law due pro

antees should apply in the normal way would again lead to bizarre result

be more workable if a State had derogated from the usual due process g

not by eliminating the guarantees but by modifying them. It is too soo

how the lex specialis rule is going to be applied in practice. A practical wa

will be suggested in the conclusion.

It is clear that to some extent human rights law remains applicable in 

of conflict, particularly non-international armed conflict, but the precis

that co-applicability and the manner in which the law of armed confli

upon the interpretation of human rights law is not yet clear.

III. The Extraterritorial Applicability of Human Rights

If human rights law only applies within a State’s territory, this has very 

implications for the relationship between that body of law and the law 

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conflict. It would mean that the issue of the overlap between the two wou

relevant in non-international armed conflict and in relation to the State

omissions in its own territory during an international armed conflict. 

rights law applies extraterritorially, the key question becomes to what ext

what types of activities it is applicable.85

The human rights community, in advocating for extraterritorial appl

human rights law, is concerned with the risk of lack of accountability. I

the State would be allowed to do outside national territory what it cannot 

national territory. If this were the only basis on which the argument 

structed, it would be misconceived. The human rights community is for

countability under the law of armed conflict. Its concern might be mor

While there is theoretical accountability under the law of armed conf

hardly be described as effective. In principle, subject to acceptance o

compulsory jurisdiction, a victim State could bring a complaint against a 

tor State. In fact, the issue of jurisdiction poses a significant barrier. E

such a case is possible, in practice it is very rare for States to bring alleged 

of the law of armed conflict before the ICJ.86 It is not clear whether a n

State could bring such a case, based on the erga omnes character of law 

conflict obligations.87 If that is not possible, there are very real difficultie

ing alleged breaches of the law of armed conflict, whether committed by 

torial State or assisting States, before a court, since the victims are 

civilians in the territorial State or, possibly, members of non-State arm

This situation is in marked contrast with human rights law, at least in t

those States which have accepted a right of individual petition. An indiv

tim can seek redress, uninhibited by the diplomatic constraints of a Stat

vious solution would be to introduce a right of petition for violations of 

armed conflict. This will be discussed further in the conclusion.

Lawyers with armed forces should identify precisely to what they take 

The armed forces should not object to accountability per se. It helps to 

honest. What they should oppose is inappropriate accountability, more 

accountability based on inappropriate norms. The key question for th

should not be the extraterritorial applicability of human rights law, bu

that the solution to the co-applicability of legal regimes is appropriate. I

order paradigm were applied to extraterritorial activities, the armed for

have a well-founded concern, but it would not be the result of extraterr

plicability. If, on the other hand, the prohibition of arbitrary killings w

consistently with the law of armed conflict in military operations and ac

a law and order paradigm in other areas in the territory, to what can 

forces legitimately object?

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Two States have objected, in principle, to the extraterritorial appli

human rights law, the United States and Israel.88 This raises the same issu

objection to the applicability of human rights law when the law of armed 

applicable. In this case, other States may accept some measure of extra

applicability but only in very limited circumstances.

The ICJ’s view regarding the extraterritorial applicability of human ri

clear but it is not clear on what it is based. In the Wall Advisory Opinio

was dealing with the applicability of human rights law in occupied terr

DRC v. Uganda, the ICJ was dealing with both occupied Ituri and non

territory in the Democratic Republic of the Congo.90 In both cases, t

sumed the applicability of human rights law. In the contentious case, the 

the same actions to be violations of both Article 51 of Additional Protoco

ticle 6 of the International Covenant on Civil and Political Rights.

The Human Rights Committee has had to deal with obligations in occ

ritory but only occasionally with other forms of extraterritorial activitie

pied territory, it has consistently held the occupying power respo

ensuring respect of the rights of the occupied population, apparently b

control of the territory.91 This position contains both theoretical and pr

ficulties. Is the State bound to apply its own obligations or those applic

territory occupied? Given that under the law of armed conflict the 

power is not allowed to change the law of the occupied territory unless 

for its own security, how is it to provide for those human rights that can

livered by merely executive action?92 Does the occupying power only hav

obligations, that it is to say that State agents are prohibited themselves fr

ing human rights law, or is it obliged to protect the population from the r

lations, including at the hand of third parties? Insofar as the occupying p

an analogous position in relation to the population as the sovereign, it m

unreasonable to subject the occupying power to analogous obligations.

In one case, the Human Rights Committee had to deal with the extra

acts of State agents who allegedly cooperated in the infliction of torture

with agents of the territorial State.93 Here, there could be no argument as 

of territory. The State agents could, however, be said to have exercised co

the detainee. It was not exclusive control. The Human Rights Commi

the State responsible for a violation. It is not clear whether that was ba

control of the detainee or on the control over the infliction of the alleged 

In General Comment 31, the Human Rights Committee addressed th

the State’s obligation to implement human rights obligations.94 The foc

implementation, rather than extraterritoriality. The Committee stated t

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[

]ppppp

of a State Party acting outside its territory, regardless of the circumstances i

such power or effective control was obtained, such as forces constituting a 

contingent of a State Party assigned to an international peace-keeping o

enforcement operation.95

This is ambiguous. There are certainly some situations in peace support o

in which individuals are subject to the control of the participating State, s

tention, but that is exceptional. The General Comment, however, sug

there may be a more generalized responsibility in such situations.

The Inter-American Court of Human Rights has not dealt with a cas

territorial applicability. The Inter-American Commission on Human 

done so, but only under the American Declaration of the Rights and Dut

(American Declaration) and not the American Convention on Human R

former does not contain a jurisdictional limitation clause. The Comm

dealt with the shooting down of an aircraft by the Cuban air force,96 two 

ing out of the US invasion of Grenada,97 one involving the US invasio

ama98 and currently has cases involving the responsibility of the United 

detentions in Guantanamo Bay.99

The European Court of Human Rights is the human rights body whic

often had to address the issue. The English High Court has found tha

cannot be reconciled.100 The earlier cases involved non-military issues, s

issuing of passports.101 A significant development occurred in the case o

v. Turkey, in which the European Court of Human Rights found that Tu

cupation of northern Cyprus made it responsible for the full protection 

rights in the territory, including for the acts of Turkish Cypriot officials.1

v. Moldova and Russia, the Court had to address Russia’s responsibility f

of officials in Transdniestria.103 The Court found Russia responsible for t

ful detention of the applicants. While the Court did not use the word o

its analysis was strongly reminiscent of the reasoning in Loizidou. It i

whether the Court is using a law of armed conflict definition of occupa

confusion resulted in the highest English court, the House of Lords, de

that southern Iraq might be occupied for the purposes of the law of arm

but not for the purposes of the applicability of the European Convention f

Rights.104 This is clearly an unsatisfactory conclusion.

The language of the European Court of Human Rights suggested that 

detained extraterritorially would be regarded as “within the jurisdiction” 

taining State.105 That was applied in the case of Öcalan v. Turkey.

106

The area of remaining uncertainty concerns situations in which peopl

outside the territory of the State responsible. Bankovic et al. v. Belgium & 1

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of NATO

suggested that such applicants would not be regarded as wit

risdiction” but an obiter dictum of the Court in Issa v. Turkey implied t

could be in temporary occupation of territory.108 More recently, Turkey 

responsible for a killing in the buffer zone in Cyprus.109 These issues will 

addressed again in the litigation arising out of the conflict between Ge

Russia. Other issues which are likely to come before the Court include de

the hands of the British in Basra in the case of Al-Jedda, and killings of p

in detention in southern Iraq in the case of Al Skeini.

110

The current position leads to apparently arbitrary results. If a pers

dead at point-blank range, he is presumably within the control of th

What if he is deliberately shot at 50 yards or 500 yards? There is a dang

approach of the European Court of Human Rights will encourage State

power rather than ground-based operations, with foreseeable consequen

vilian casualties. It is submitted that a better approach would be to say th

is “within the jurisdiction” if foreseeably affected by an act or omission. T

not be the same as the cause and effect liability of the law of armed 

would leave room for mistakes of fact, weapons malfunctions, the acts 

posing forces and, above all, it would require that the attacking forces 

should have foreseen the harm to the victim.

It would appear from the case law that a State will have the full range 

rights obligations in occupied territory. It is not clear whether the obli

question are those of the sovereign or those of the intervening State. It 

certain whether the definition of occupation is the same in the law of a

flict and in human rights law.

It also seems that persons detained extraterritorially will be within th

tion of the detaining State and therefore entitled to have their rights re

will be recalled that this issue raises problems when a State is engaged 

traterritorial non-international armed conflict and that parties to the 

Convention for Human Rights would appear to be required to derogate 

to detain on a ground not included in the exhaustive enumeration in A

the Convention. It is not clear to what extent human rights law is app

traterritorially in other situations.

IV. The Implication of the Human Rights Obligations of the

Territorial State for States Assisting It

When, with or without a UN mandate, a State assists another State dea

situation in the territory of the latter, the obligations at issue are not only 

territorial obligations of the intervening State. The host State also has o

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and it is not acting outside its national territory. The most likely situation 

a non-international armed conflict in the territorial State, but it could e

volve an international armed conflict.111 Clearly, all the parties would be 

their law of armed conflict obligations. It is possible that these could vary

ing on ratification. Such differences would be reduced to the extent to 

treaty rules represent customary law. The issue in this context concerns 

impact of the territorial State’s human rights obligations.

The first possibility is that the armed forces of the intervening State

status of State agents of the territorial State for the purposes of human 

This would appear to be most unlikely, unless the forces came under the 

and control of the territorial State. It seems more likely that the territ

would not have direct responsibility but would only have the responsib

sure that the intervening States acted in conformity with its own human 

ligations. In other words, the issue would concern the positive obligat

territorial State to protect those within its jurisdiction from the risk of v

the hands of third parties. The obligations in question might not be the s

human rights obligations of the assisting States.112 They would presumab

ited to those activities within the mandate of the intervening States. In ot

Afghanistan might be obliged to ensure that adequate steps were taken by 

vening States to protect the right to life of Afghans, but those States woul

any responsibility to deliver education, by virtue of Afghanistan’s obli

that sphere. Where States require assistance, they are unlikely to be in a p

impose terms on the assisting States. It is more likely to be a matter of ne

Nevertheless, the obligations of assisting States under general interna

would presumably imply that they should not require the territorial State 

its own obligations.113

This clearly has significant implications for the conduct of ISAF St

ghanistan. The issue of extraterritoriality would cease to be relevant. Th

would be the implications of Afghanistan’s human rights obligations 

States.114 The only issue would be the relationship between the law of a

flict and human rights law. The questions include, first, the circum

which ISAF forces can open fire. Does that vary in different areas, with th

order paradigm being prevalent in the north and west of the country a

of armed conflict paradigm being applicable at least in some circum

other areas? Second, in relation to detention, are the ISAF forces autho

der Afghan law, to detain in circumstances in which Afghan forces cou

Has a law been made to that effect? Is the detention regime in Afghan 

patible with the ISAF State’s human rights obligations? If the situation 

international armed conflict, there is no basis for detention in the law 

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conflict.

Detaining powers are entirely dependent on domestic legal p

Afghanistan has not derogated under the International Covenant on 

Political Rights. Should it do so? Could the ISAF States rely on an Afgha

tion? Does Afghan law adequately protect the rights of detainees, in th

only of law of armed conflict requirements but also of whatever human 

ligations are applicable? Third, particular difficulties arise relating to th

of detainees, whether between ISAF States or between ISAF States and 

stan. Under human rights law, the detaining State cannot transfer a deta

authorities of another State if there is a real risk of torture, cruel, in

degrading treatment. The right at issue is non-derogable.

The first warning of litigation arose in Canada, where the issue of tra

been raised.116 It is not known whether cases are waiting for resolution 

mestic courts, the Inter-American Commission on Human Rights, th

Rights Committee or the European Court of Human Rights. In the cour

cising its general monitoring functions, the Human Rights Committee h

focused on the responsibility of the intervening State. It did, however, re

receive a report from the United Nations Interim Administration M

Kosovo in the context of examining the implementation of the Internatio

nant on Civil and Political Rights in Serbia.117 NATO’s Kosovo Force (KF

cluded a special agreement with the European Committee on the Pre

Torture, enabling the Committee to exercise its functions in Kosovo.118

The responsibility of the territorial State to protect the rights of those 

jurisdiction appears to have implications for States assisting it but the 

that responsibility is not yet clear.

V. The Implications of a Security Council Mandate

Where an intervening State has a mandate from a recognized authority 

the presence of foreign forces is recognized by a relevant authority, can 

date make lawful what would otherwise be unlawful?

If the mandate was contained in a Security Council resolution adop

Chapter VII of the UN Charter and if the mandate required conduct in 

international law, it appears that the resolution would prevail over o

rules.119 It is not clear whether that bald judgment needs to be reviewed i

of the passage of time. In particular, one may question whether the Secu

cil could require a State to breach a ius cogensrule. In practice, Security C

olutions containing mandates for military forces do not require certain 

they merely authorize them. As a result of general principles of interna

and under the principle of pacta sunt servanda, it must surely be the case 

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cannot implement an authority to act in a fashion which breaches othe

tional law obligations, unless that is necessary to the exercise of the autho

case of the ISAF, this is reinforced by a provision in the preamble to Secu

cil Resolution 1386 of December 20, 2001, which requires “that all Afg

must adhere strictly to their obligations under human rights law, includi

for the rights of women, and under international humanitarian law.”

This must represent an authority to act subject to the law of armed co

human rights law obligations. This does not, of course, define what tho

tions are. It does call into question the denial of the extraterritorial appl

human rights law. Does the mandate subject ISAF States to the full range 

rights obligations involved in the discharge of the mandate or should it 

referring to human rights law insofar as it is applicable?

In relation to killings, the mandate determines whether there is autho

ter a law of armed conflict context or whether the operation is required 

in a law and order paradigm. The authority only to use force in self-de

example of the latter. Where a force can use “all necessary means,” this im

it may use force other than merely in self-defense. This does not mean th

appropriate framework throughout the territory in question or at all tim

authority to enter a law of armed conflict framework when and where 

and not a requirement to do so everywhere and at all times. Participating 

be dependent upon the application of law of armed conflict rules to 

whether they can enter a law of armed conflict framework. Provided th

rights law interprets arbitrary killing in a fashion consistent with the law 

conflict where that is applicable, and in the “usual” way where it is 

should be no real difficulties. Rather, if there are difficulties, it is not attri

the law(s) applicable but to the complexity of the situation on the grou

Detention is a more complicated matter. As already noted, there is a 

difficulty in relation to the lawful authority to detain under non-int

armed conflict rules. The law of armed conflict does not itself provide th

ity. Domestic law for detention in conflict situations may be non-existe

incompatible with human rights law. It is not clear whether States partici

peace support operation can rely on domestic authority to detain. A fur

culty for parties to the European Convention for Human Rights is tha

only detain on specific grounds which do not include internment or adm

detention. In order to be able to detain on that ground, they are require

gate but it is not clear whether they can derogate on account of an emerge

territory of another State or whether they could benefit from the deroga

territorial State. It should be noted that Afghanistan has not derogated fr

ligations under the International Covenant on Civil and Political Right

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be possible for a UN mandate to fill in the gap in a non

international a

flict. It could provide for authority to detain and specify the grounds o

person could be detained. In practice, UN mandates simply provide t

may use “all necessary means” for the fulfilment of the mandate. Detainin

who threaten security is clearly a means to give effect to the mandate b

clear that it is sufficiently specific to constitute a lawful authority to deta

gument usually used against specificity is that it would require the enum

all the other necessary means. It is submitted that this is not the case. The

ticular reasons why the authority to detain must be specific—to comp

spect for human rights law, which is required by virtue of the p

paragraph. That does not mean that other measures need to be enumer

Where a mandate gives express authority to take a particular form o

would be difficult to challenge the lawfulness of that action under hum

law.120 It would, however, remain possible to challenge the manner of its 

If, for example, a mandate gave authority to detain, a challenge as to the 

of the fact of detention would appear bound to fail. A challenge as to it

application or to the lack of mechanisms of review would not, however

be precluded by the mandate.

To date, the Human Rights Committee has tended to raise the conduc

involved in peace support operations with the sending States rather than 

torial State. It has done so in the context of the exercise of its monitoring 

It has not dealt with an individual complaint arising out of the condu

forces. It has, however, had to address a domestic measure of implemen

Security Council resolution.121 While the issue is slightly different, this 

gest the approach that would be taken to a case involving the implemen

mandate in the context of peace support operations.

The Inter-American Commission on Human Rights and the Inter-

Court of Human Rights do not appear to have addressed such an issue. W

have been submitted under the American Declaration relating to de

Guantanamo, it is not known whether similar cases have been submitt

tion to Iraq and Afghanistan. In Europe, the lead has been taken by the 

Court of Justice, which deals with questions of European Union (EU) l

tion to EU members.122 The case before it was similar to the one before th

Rights Committee, in that it dealt with a national measure of implemen

Chapter VII Security Council resolution.123 It found the national m

breach the human rights obligations of Belgium. Both the Human Rights 

tee and the European Court of Justice emphasized that they were not rev

Security Council resolution itself but only the national measure. The s

ment is presumably applicable to national implementation by the execu

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form of the security forces of a State, of a Security Council mandate. The 

Court of Human Rights has only had to address the issue twice. It avoide

by finding that the acts in question (alleged failure to protect the right to 

sult of failing to clear mines when the presence of mines was known to t

forces, and alleged unlawful detention byKFOR) were the responsibility 

rather than of the individual member States complained against.124 The 

Court of Human Rights is likely to get the opportunity to revisit the is

mains to be seen whether it will be influenced by the decisions of the Hum

Committee and the European Court of Justice, which postdate its own a

ity decisions.

It therefore appears likely that human rights bodies will take accoun

cific authority to act contained in a mandate, most notably authority 

This does not mean that, in the implementation of the mandate, a State w

to disregard its human rights obligations, particularly when there is exp

ence to an obligation to act in conformity with such obligations. It is 

whether the mandate modifies the operation of the normal rules on th

the extraterritorial applicability of human rights law and how such bodie

with derogation in an extraterritorial context.

VI. How Taking Account of Human Rights Considerations

Can Contribute to the Effective Conduct of Military Operatio

In this section, the focus is not on human rights law but on human ri

generally. Setting aside legal arguments about the applicability of human 

when the law of armed conflict is applicable and about the extraterritori

bility of human rights law, would it make sense for the military to take 

human rights considerations?

The objects of the use of military force vary, depending on the nature 

eration. In an international armed conflict, the use of military force is d

change the status quo so as to permit the resolution of the previous disp

as a result of the fighting or as a result of negotiation in the context of th

situation. Non-international armed conflicts operate in a different conte

the actual conduct of military operations appears to be similar. The object 

the space in which a political solution can be made. It is often the case 

cessful outcome cannot be achieved by military means alone. Whereas i

tional armed conflicts it is probably generally assumed that the civilian p

supports its own State,125 in non-international armed conflicts it is an ind

constituency. A non-State group needs the civilian population’s active 

support, so as to facilitate its own operations. The State needs its suppo

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to isolate the non

State group. Where fighters have support from the civ

ulation, this gives the former a certain legitimacy. Where fighters do no

support, it is easier to brand the fighters as criminals. Whatever the situa

ternational armed conflicts, in counterinsurgency (COIN) operations 

clear that the State needs to act in such a way as to retain or to gain the 

the civilian population, usually referred to as the battle of hearts and m

That view is so obvious as to be a platitude, were it not for the fact tha

peatedly play lip service to the notion while acting in a completely contra

Routinely, States dealing with an insurgency engage in arbitrary round

unnecessarily abusive and destructive searches. They turn a blind eye to a

of ill treatment in detention and to alleged unlawful killings. New rules 

duced to deny review of the lawfulness of detention and to replace inc

due process guarantees, thereby making convictions much easier. Nowh

better illustrated than in Northern Ireland. When the British forces we

ployed, they were greeted as saviors by the Roman Catholic popula

thought the soldiers would protect them from attack by elements in the 

population. That view changed as a result of the conduct of the armed f

British armed forces behaved significantly less badly than the forces of, 

ple, Guatemala, El Salvador or Turkey. It is precisely because the Brit

forces take the rule of law seriously that much is to be learned from their e

in Northern Ireland. While some positive changes in behavior were pr

result of an internal process, there is no doubt that some were brought 

result of human rights litigation before the European Commission o

Rights and the European Court of Human Rights. Either those pr

speeded up a process that would have occurred anyway, but more slow

were themselves responsible for change. Only when the forces respected 

rules of engagement, abandoned internment and introduced an extr

range of safeguards against abuse for those detained did the conduct of 

forces generally cease to be part of the problem.127 The reaction to 

bombings in Northern Ireland shows that those engaging in political vi

now seen as merely criminals by the population as a whole.

Over the past forty years, the United States has assumed that its arm

would be engaged in international armed conflicts. More recently, it has 

ognized that they may be frequently involved in COIN operations.1

armed forces have converted the COIN doctrine into practice with amaz

Nevertheless, it is not always yielding the results hoped for, particularly in 

stan. It is submitted that one of the reasons for that is a flawed impleme

the understandings underlying the COIN doctrine. In order to understa

conduct COIN operations, forces need to ask themselves what it would 

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be a civilian in that situation.

The priorities and concerns of the civilia

tion may not be those of the armed forces, but if the hearts and minds of t

need to be won, it is clear which must take precedence. This may mean t

forces need to operate in ways which are likely to entail more casualt

their own ranks than if they operated in a different way. Those lives are n

On the other hand, if the armed forces fight as they want to, this will enta

casualties in the long run, including among the armed forces, and wil

achieve the purpose for which the fighting is taking place. Those lives

civilian or military, are wasted. There is not the space here to outline t

which putting yourself in the shoes of a local civilian would impact o

operations.

It is not only in the conduct of military operations that a human rights 

may help avoid problems. It also applies to both the treatment of deta

their due process guarantees. There is no need to rehearse here the negat

on the perception of US armed forces and also on those forces themse

abandonment of respect for even the prohibition of ill treatment con

Common Article 3 of the Geneva Conventions. Instead, an illustration w

from the due process debate. When the original proposal for military com

attracted fierce criticism, President Bush set up a genuinely bipartisan gr

vise him on how the procedures could be improved.130 Unfortunately, 

bers had expertise in US constitutional law and civil rights law b

international human rights law. That meant that their only benchmark w

process guarantees. When needing to depart from them, they had no oth

line. Taking the specific issue of the evidence to be used, a human rig

would have said that the starting point is that evidence should be made a

open court and subject to cross-examination. However, in exception

stances, it may be necessary to modify the usual rules. Where, for exa

prosecution is based on the evidence of an undercover policeman, it may 

sary to protect his identity. This does not necessarily mean that he canno

dence at all. He may be able to give evidence in the courtroom but behin

Or, if his voice needs to be distorted, he may be able to give evidence fro

cent room, still permitting cross-examination. Provided that there is 

need (as opposed to it being more convenient) to modify the rule and 

that the minimum departure possible has been made from the norm and

priate, other safeguards have been introduced, there may well be no v

human rights law.131 Where significant departures are to be made from n

process guarantees, the State might usefully consider derogating from th

human rights law provision. It is not, or not simply, that human rights g

are set at a lower threshold than US law. A human rights approach e

509

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introduction of modifications without the abandonment of all notions 

law. The danger with the US approach is that it means normal due proce

tees or nothing.

It is hoped that this all too brief examination of the significance of hum

values will cause the reader to stop and think. A human rights appro

something to be feared. It may actually enable armed forces to achieve 

poses more effectively and with fewer casualties.

VII. Conclusion

Both human rights law and the law of armed conflict may be applicable a

time. It remains to be seen how human rights bodies will take account o

vance of the law of armed conflict. It is submitted that two things n

avoided. First, finding the right accommodation between the two bodi

should not be exclusively a matter for human rights bodies, not least be

would make it subject to the vagaries of particular cases rather than pe

more coherent way forward to be developed. Second, it should not be ap

by academics and governmental players in a top-down fashion, as a mat

rules which simply need to be applied. It is submitted that a more eff

proach would be to identify situations on the ground that need to be 

Each issue should be the subject of a document which would not have an

tus but whose contents could be used as guidelines.132 They could be re

the benefit of experience. Each document would address the issue in g

and would provide alternatives for the different contexts in which the sit

arise.133 In order to produce these documents, there is a need for a sm

composed both of lawyers and of non-lawyers and whose members woul

pertise in both human rights law and the law of armed conflict. It goes wi

ing that there should be members with military experience. Over 

guidelines could be incorporated into military operations and into the re

human rights bodies. This would increase the chances of them applying 

standards and avoiding conflicts.

It seems clear that human rights law applies extraterritorially in the 

tainees. Human rights bodies and the ICJ are of the view that it also appl

of military occupation but it is not clear how human rights bodies unde

concept of occupation, and the application of human rights law is not fr

retical and practical difficulties. What is wholly unclear is the extent to 

the manner in which it applies in other extraterritorial circumstances, p

to the conduct of military operations. The impact of the territorial Stat

rights obligations on assisting States is also uncertain. While a ma

510

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provide authority for particular actions, it does not provide blanket aut

for a disregard of human rights law in its implementation. It is unclear t

tent a reference to human rights in the mandate “trumps” the usual lim

extraterritorial applicability of human rights law. On condition that hum

law is interpreted in the light of relevant rules of the law of armed confl

forces should not fear the extraterritorial applicability of the former. If a

essary guidelines discussed above could be produced, States might be m

to concede greater scope to the extraterritorial applicability of human 

That would permit the development of a more coherent approach to the 

A more radical alternative would involve the creation of a right of 

petition in relation to alleged violations of the law of armed conflict, bot

national armed conflicts and in non-international armed conflicts. In 

cumstances, this would result in two bodies being available to petitioners

rights body and a new law of armed conflict body. It would need to be d

whether it would be up to applicants to decide which avenue to pursue o

they could be required to petition the law of armed conflict body, wh

spondent State has accepted its jurisdiction. Demarcation lines would 

established between the human rights bodies and the new body. Until a r

dividual petition exists for violations of the law of armed conflict, indiv

be expected to continue to use human rights bodies to attempt to obtai

It is emphatically not being suggested that the sole explanation for th

ties of the military operations in Afghanistan are attributable to the failu

adequate account of human rights law and human rights values. It is b

gested, however, that those failures have contributed to the current situa

vided that human rights law takes proper account of the context and of th

rules of the law of armed conflict, human rights law should be seen as a 

in the arsenal of a military lawyer, rather than as an alien and terrifyin

rules to be avoided at all cost.

Notes

1. See, e.g., Ben Farmer, US soldiers “fired indiscriminately at civilians,” DAILY 

(London), Jan. 8, 2009, available at http://www.telegraph.co.uk/news/worldnews/asia/

4176874/US-soldiers-fired-indiscriminately-at-civilians.html; Seumas Milne, The in

in a coward’s war, GUARDIAN (London), Dec. 20, 2001, available at http://www.gua

world/2001/dec/20/afghanistan.comment; US “excessive” in Afghan attack, BBC 

15, 2007, http://news.bbc.co.uk/1/hi/world/south_asia/6556721.stm; HUMA

WATCH, THE HUMAN COST (2007), available at http://www.hrw.org/en/node/109

8; HUMAN RIGHTS WATCH, LEGAL ISSUES ARISING FROM THE WAR IN AFGHAN

RELATED ANTI-TERRORISM EFFORTS (Oct. 2001), http://www.hrw.org/sites/d

reports/ihlqna.pdf; AMNESTY INTERNATIONAL, AFGHANISTAN - AMNESTY INTE

511

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INTERNATIONAL, AFGHANISTAN - AMNESTY INTERNATIONAL REPORT 2008 (2008)

http://www.amnesty.org/en/region/afghanistan/report-2008.

2. See Brigadier General Carlos Branco, International Security Assistance F

Spokesperson, Opening Statement at News Conference (May 28, 2008), http://ww

isaf/docu/speech/2008/sp080519a.html; Jaap de Hoop Scheffer, NATO Secretary G

marks at the “Security and defence agenda” conference (June 8, 2007), http://ww

docu/speech/2007/s070608a.html; IRINnews.org, AFGHANISTAN: NGO network 

national forces over civilian deaths (June 20, 2007), http://www.irinnews.org/

?ReportId=72838 (quoting Major Chris Belchera, US military spokesman at Baghra

the north of Kabul (“We have always respected international law in our military eng

and Major John Thomas, ISAF spokeman in Kabul (“Sometimes we even call off a

avoid unnecessary harm to noncombatants”)).

3. See North Atlantic Treaty Organization, NATO’s Role in Afghanistan, 

.nato.int/issues/afghanistan/index.html#mandate (last visited Feb. 23, 2009).

4 Letter from the Chief of Section, Political and Specialized Agencies, of the 

Mission of the United States of America to the United Nations Office at Geneva, U

CN.4/2003/G/80, at 2–3 (Apr. 22, 2003); Written Statement of the Government o

States of America at 42–46, Legality of the Threat or Use of Nuclear Weapons (June 2

generally John Norton Pomeroy et al., The Competence of the UN Human Rights Co

Special Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the “War 

19 EUROPEAN JOURNAL OF INTERNATIONAL LAW 183 (2008).

5. See generally BASIC DOCUMENTS ON HUMAN RIGHTS (Ian Brownlie et al. 

2006); HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN 

LAW, POLITICS, MORALS (2d ed. 2000).

6. Roland Schmidt, Introduction into the International Human Rights Regim

2008), available at http://www.univie.ac.at/bim/php/bim/get.php?id=989.

7. Velásquez-Rodríguez v. Honduras, Judgment of July 29, 1988, Inter-Am. C

C) No. 4 (1988), paras. 172, 174–75, 177–78, 182.

8. Osman v. United Kingdom, 29 Eur. Ct. H.R. 245 (1998); X and Y v. Netherla

Ct. H.R. (ser. A) (1985); Assenov and Others v. Bulgaria, 96 Eur. Ct. H.R. (ser. A) a

102 (1998); Henri Unai Parot v. Spain, Communication No. 6/1990, Committee A

ture, U.N. Doc. A/50/44 at 62, paras. 10.4 & 6.1 (1995).

9. Osman v. United Kingdom, supra note 8, para. 115; see also L.C.B. v. Unite

76 Eur. Ct. H.R. 1390 (1998); A v. United Kingdom, 90 Eur. Ct. H.R. 2692, para

(stating that Articles 1 and 3 of the European Convention required “States to take m

signed to ensure that individuals within their jurisdiction are not subjected to tortu

man or degrading treatment or punishment, including such ill-treatment adm

private individuals”); Report on the Situation of Human Rights in the Republic of 

Inter-Am. C.H.R., OEA/Ser.L/V/II.53, doc. 21 rev. 2, para. 10 (1981) (declaring 

context of violent attacks, “governments must prevent and suppress acts of violence

fully, whether committed by public officials or private individuals, whether their 

political or otherwise”).

10. See, e.g., Lindon, Otchakovsky-Laurens and July v. France, App. Nos. 21279/

02, Eur. Ct. H.R. (2007), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin

(rejecting the applicant’s assertion that the domestic law was not “necessary in a 

Society,” the Court held that the question was whether, in the context of the case as 

reasons advanced to justify interference with the right to freedom of expression are “

512

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reputation and free expression, “regardless of the forcefulness of political struggles

propriate to ensure a “minimum degree of moderation and propriety.” Given the “v

tent of the impugned passages” and that the statements explicitly named Le Pen an

National party, the Court agreed the statements were defamatory. The content of th

statements was “such . . . to stir up violence and hatred . . . going beyond . . . tolerable 

debate” even against an extremist figure such as Le Pen).

11. The danger of judgments based on hindsight is avoided in the case of individ

responsibility where the elements of the crime make it clear that it is necessary to es

the defendant knew or ought to have known and that determinations are based o

known at the time. It is not clear whether the civil obligations of the State under the l

conflict, as opposed to the obligations of the individual under international crimi

more onerous.

12. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

paras. 24–25 (July 8); see also Legal Consequences of the Construction of a Wall in th

Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, paras. 102, 105 (July 9); 

Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec

tims of Non-International Armed Conflicts pmbl. para. 2, June 8, 1977, 1125 U.N.

printed in DOCUMENTS ON THE LAWS OF WAR 483 (Adam Roberts & Richard Guelf

2000) [hereinafter Additional Protocol II] (“Recalling furthermore [in addition to C

ticle 3] that international instruments relating to human rights offer a basic protectio

man person”); European Convention for the Protection of Human Rights and F

Freedoms art. 15(1), Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Con

Human Rights] (providing for derogation “[i]n time of war”).

13. See generally Section 2: General Rights and Duties of Neutral States, 33 

JOURNAL OF INTERNATIONAL LAW SUPPLEMENT 232 (1939); L. H. Woolsey, Closure o

Chinese Nationalist Government, 44 AMERICAN JOURNAL OF INTERNATIONAL LAW 3

14. See JEAN S. PICTET, COMMENTARY: GENEVA CONVENTION I FOR THE AM

OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD 37

available at http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument.

15. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention f

lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed F

art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the T

Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Re

Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 

287 [hereinafter Geneva Convention IV]; all reprinted in DOCUMENTS ON THE LAW

supra note 12, at 197, 222, 244 and 301, respectively.

16. RENÉ PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN 

(2002).

17. See Robert Kolb, The relationship between international humanitarian law 

rights law: A brief history of the 1948 Universal Declaration of Human Rights and the 

Conventions, 38 INTERNATIONAL REVIEW OF THE RED CROSS 409 (1998); Universal 

of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. 

(Dec. 12, 1948); European Convention for Human Rights, supra note 12.

18. Universal Declaration of Human Rights, supra note 17, pmbl.

19. Additional Protocol II, supra note 12; Geneva Convention IV, supra note 15; S

International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. Doc

513

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y )pp

Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. Doc

(Nov. 8, 1994), extractreprinted in id. at 618; Statute of the International Criminal Co

1998, 2187 U.N.T.S. 90, extract reprinted in id. at 671.

20. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, a

to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.

printed in DOCUMENTS ON THE LAWS OF WAR, supra note 12, at 422 (regarding 

against the effects of attacks and civil defense); Geneva Convention IV, supra note 1

ing general protection of populations against certain consequences of war and intern

emy aliens).

21. This was one of the arguments used by the respondent governments in 

Bankovic and others v. Belgium and others, 2001-XII Eur. Ct. H.R. 333. For example, 

that the United States would be willing to assist other States dealing with an insurg

were subject only to human rights law and not the law of armed conflict, given tha

even acknowledge the applicability of human rights law during armed conflict. SeeJo

Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-I

Armed Conflict in an Extraterritorial Context, 40 ISRAEL LAW REVIEW 72, 128 n.28 

letter dated Jan. 31, 2006, addressed to the Office of the High Commissioner for Hu

the Permanent Representative of the United States of America to the United Nation

International Organizations in Geneva wrote, “The United States has made clear its p

it is engaged in a continuing armed conflict against Al Qaida, that the law of war a

conduct of that war and related detention operations. . . .” (emphasis added). Indeed

States justifies its continued detention of the Guantanamo detainees only in referen

of armed conflict. In replying to inquiries by UN and related human rights bodies ab

basis for detaining the individuals at Guantanamo, the United States has consisten

that “[t]he law of war allows the United States—and any other countries engaged in 

hold enemy combatants without charges or access to counsel for the duration of hos

sponse of the United States of America dated Oct. 21, 2005 to Inquiry of the UNC

Rapporteurs dated Aug. 8, 2005 Pertaining to Detainees at Guantanamo Bay; see al

Second Periodic Report of the United States to the Committee Against Torture, file

2005); but see Del Quentin Wilber & Peter Finn, U.S. Retires “Enemy Combatant,” 

Right to Detain, WASHINGTON POST, Mar. 14, 2009, at A6.

22. It was often a matter of negotiating within, rather than between, national 

The then-Soviet naval interest had more in common with the US naval interest tha

with the interest in protecting fishing rights in the territorial sea and the exclusiv

zone.

23. European Convention for Human Rights, supra note 12, art. 15; Internation

on Civil and Political Rights art. 4, Dec. 16, 1966, 999 U.N.T.S. 171; American Con

Human Rights art. 27, Nov. 22, 1969, 1144 U.N.T.S. 123; African Charter on Hum

ples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 INTERNATIO

MATERIALS 58 (1982) (containing no express derogation clause and held to be non-d

24. U.N. Human Rights Committee, General Comment No. 29, States of Emer

Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) [hereinafter General Comment 29]; A

gentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L/V/II.98, doc. 

160 (1997) (“during situations of internal armed conflict . . . these two branches of in

law [human rights law and the law of armed conflict] most converge and reinforce ea

514

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72; parties, 164); American Convention on Human Rights, supra note 23 (signatorie

pean Convention for Human Rights, supra note 12, (ratifications/accessions, 47).

26. See, e.g., S.C. Res. 1265, para. 4, U.N. Doc. S/RES/1265 (Sept. 17, 1999); Res

man rights in armed conflicts, G.A. Res. 3319 (XXIX) (Dec. 14, 1974); S.C. Res. 12

U.N. Doc. S/RES/1296 (Apr. 19, 2000) (noting that “the deliberate targeting of civi

tions or other protected persons and the committing of systematic, flagrant and wid

lations of international humanitarian and human rights law in situations of armed c

constitute a threat to international peace and security”); S.C. Res. 237, U.N. Doc

(June 14, 1967) (stressing that human rights must be respected by all the parties to 

G.A. Res. 2252 (ES-V) (July 4, 1967).

27. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, sup

para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palest

tory, Advisory Opinion, supra note 12 paras. 106–13; Armed Activities on the Ter

Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, para. 216 (Dec. 19).

28. General Comment 29, supra note 24;see also U.N. Commission on Human Rig

Principles on the Limitation and Derogation Provisions in the International Covenant on Ci

ical Rights, U.N. Doc. E/CN.4/1985/4, Annex (Sept. 28, 1984) [hereinafter Siracusa Prin

29. Concluding Observations of the Human Rights Committee: United States 

para. 10, U.N. Doc. CCPR/C/USA/CO/3 (Sept. 15, 2006) (“The State party should i

(a) acknowledge the applicability of the Covenant with respect to individuals under 

tion but outside its territory, as well as its applicability in time of war”); Concludin

tions of the Human Rights Committee: Democratic Republic of the Congo para. 13

CCPR/C/COD/CO/3 (Apr. 26, 2006) (“The State party should take all necessa

strengthen its capacity to protect civilians in the zones of armed conflict, especially 

children”); see also Concluding Observations of the Human Rights Committee: Israe

CCPR/CO/78/ISR (Aug. 21, 2003); Concluding Observations of the Human Rights 

Sri Lanka, U.N. Doc. CCPR/CO/79/LKA (Dec. 1, 2003); Concluding Observation

man Rights Committee: Colombia, U.N. Doc. CCPR/CO/80/COL (May 26, 2004).

30. U.N. Human Rights Committee, General Comment No. 31, Nature of the G

Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/R

para. 11 (May 26, 2004) [hereinafter General Comment 31]; U.N. Human Rights 

Concluding Observation of the Human Rights Committee, Israel para. 11, U.N. D

CO/78/ISR (Aug. 21, 2003).

31. They include the United Nations’ Special Rapporteur on Torture and Other C

man or Degrading Treatment or Punishment; the Special Rapporteur on Extraju

mary or Arbitrary Executions; and the Special Rapporteur on the Right of Ever

Enjoyment of the Highest Attainable Standard of Physical and Mental Health; and th

tative of the Secretary-General on the Human Rights of Internally Displaced Perso

Working Groups on Enforced or Involuntary Disappearances and on Arbitrary De

32. See, e.g., sources cited supra note 29.

33. U.N. Human Rights Committee, Second Periodic Report: Israel para. 8

CCPR/C/ISR/2001/2 (Dec. 4, 2001) (“Israel has consistently maintained that the Co

not apply to areas that are not subject to its sovereign territory and jurisdiction. Thi

based on the well-established distinction between human rights and humanitarian la

ternational law”).

34. The United States ratified the International Covenant on June 8, 1992. The U

did make a declaration to the effect that the Constitution would remain applicable, 

515

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and Political Rights: Credibility Maximization and Global Influence,3NORTHWESTERN 

JOURNAL OF INTERNATIONAL HUMAN RIGHTS 7, 17 n.56 (2005); Senate Comm. on 

lations, Report on the International Covenant on Civil and Political Rights, S. Exec. Re

1, 102d Cong., 2d Sess. (1992), reprinted in 31 INTERNATIONAL LEGALMATERIALS 645 

claring that even in times of emergency, the United States will adhere to its Constit

35. Fisheries Case (U.K. v. Norway), 1951 I.C.J. 3 (Dec. 18).

36. France, Norway, Denmark, Sweden, Netherlands v. Turkey, App. Nos. 9940–

Eur. Comm’n H.R. Dec. & Rep. 143, 169 (1983), finding that

the general principle of reciprocity in international law and the rule, stated in Ar

para. 1 of the Vienna Convention on the Law of Treaties, concerning bilateral r

under a multilateral treaty do not apply to the obligations under the Eu

Convention on Human Rights, which are “essentially of an objective characte

designed rather to protect the fundamental rights of individual human bein

infringement by any of the High Contracting Parties than to create subject

reciprocal rights for the High Contracting Parties themselves” (Austria v

Yearbook 4, 116, at page 140). The European Court of Human Rights (at para. 2

judgment in the Northern Ireland Case) has similarly referred to the “o

obligations” created by the Convention over a network of mutual, b

undertakings.

Cyprus v. Turkey, App. No. 8007/77, 13 Eur. Comm’n H.R. Dec. & Rep. 85, 147 (197

that “[a]n application brought under Article 24 [European Convention for Human 

not of itself envisage any direct rights or obligations between the High Contrac

concerned. . . . [T]he special ‘objective obligations,’ accepted by [the] High Contra

to the Convention, . . . are obligations towards persons within its jurisdiction, not to 

Contracting Parties”). The nature of the rules involved suggests that law of arm

treaties may be of a similar character. It is noteworthy, for example, that it appears to 

accepted that Common Article 3 of the Geneva Conventions, supra note 15, binds p

than High Contracting Parties.

37. U.N. Commission on Human Rights, Sub-Comm. on the Promotion and P

Human Rights, Reservations to human rights treaties, Final working paper submitted 

Hampson, U.N. Doc. E/CN.4/Sub.2/2004/42 (July 19, 2004); see also U.N. Office 

Commissioner for Human Rights, Fact Sheet No. 26, The Working Group on Arbitrar

§ VII.A (May 2000), available at http://www.unhcr.org/refworld/docid/479477440.h

that

[g]iven the growth of multiple forms of machinery for the protection of human 

either through resolution (special thematic or country-oriented procedu

through treaties (machinery set up under conventions, such as the Human 

Committee established under the International Covenant on Civil and Political 

the Committee on the Elimination of Racial Discrimination or the Committee 

Torture) . . . it [was] necessary to lay down rules for coordination in order to 

duplication in the consideration of cases. These rules are in accordance w

principle non bis in idem, under which two bodies may not simultaneously co

single case involving the same persons, subject-matter and cause of action.

38. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, supra note 12.

39. Armed Activities on the Territory of the Congo, supra note 27.

516

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of Human Rights determined that, as Turkey had not derogated, the only ground

tion were those set out in Article 5 of the European Convention for Human 

meant that the detention of prisoners of war was unlawful. In the report of the Comm

of its members suggested that the law of armed conflict became applicable by virtue 

and should have been taken into account with or without derogation. Cyprus v. T

Nos. 6780/74 & 6950/75, 2 Eur. Comm’n H.R. 125 (1975). See also Khamidov v. Russ

72118/01, Eur. Ct. H.R. (Oct. 23, 2006); Isayeva v. Russia, App. No. 57950/00, 41 Eu

38, para. 191 (2005) (Eur. Ct. H.R.); Khashiyev et al. v. Russia, App. Nos. 57942/00 

42 Eur. H.R. Rep. 20 (2005) (Eur. Ct. H.R.); Isayeva et al. v. Russia, App. Nos. 5794

00 & 57949/00, 41 Eur. H.R. Rep. 39 (2005) (Eur. Ct. H.R.).

41. The Greek Case, App. Nos. 3321/67, 3322/67, 3323/67 & 3344/67, 12 Y.B Eur. C

1, 4 (Eur. Comm’n on H.R.); General Comment 29,supra note 24, para. 10 (stating that 

it is not the function of the Human Rights Committee to review the conduct of a State 

other treaties, in exercising its functions under the Covenant the Committee has the co

take a State party’s other international obligations into account when it considers whet

enant allows the State party to derogate from specific provisions of the Covenant”).

42. The Greek Case, supra note 41; see also European Court of Human Rights, B

McBride v. United Kingdom, App. Nos. 14553/89 & 14554/89, 258 Eur. Ct. H.R. 

para. 43 (1993) (“[I]t falls to each Contracting State, with its responsibility for ‘the lif

tion’ to determine whether that life is threatened by a ‘public emergency’ and, if so, 

necessary to go in attempting to overcome the emergency”); Ireland v. United Kin

No. 5310/71, 2 Eur. H.R. Rep. 25 (1980) (Eur. Ct. of H.R.); Rosalyn Higgins, Derog

Human Rights Treaties, 48 BRITISH YEAR BOOK OF INTERNATIONAL LAW 281 (197

M. FITZPATRICK, HUMAN RIGHTS IN CRISIS (1994).

43. See, e.g., General Comment 29, supra note 24, para. 17, noting that

[i]n paragraph 3 of article 4 [International Covenant on Civil and Political 

States parties, when they resort to their power of derogation under article 4, c

themselves to a regime of international notification. A State party availing itse

right of derogation must immediately inform the other States parties, throu

United Nations Secretary-General, of the provisions it has derogated from an

reasons for such measures.

44. Any reference to torture should be taken as also including cruel, inhuman o

treatment or punishment.

45. International Covenant on Civil and Political Rights, supra note 23, art. 4(2

Convention for Human Rights,supra note 12, arts. 12(2) & 15(2); American Conven

man Rights, supra note 23, art. 27(2).

46. General Comment 29, supra note 24, para. 4 (the principle of proportiona

elements of severity, duration and scope); see Lawless v. Ireland (No. 3), App. No. 33

H.R. Rep. 15, para. 28 (1961) (Eur. Ct. of H.R.) (confirming the determination by th

Commission of Human Rights that Article 15 of the European Convention for Hu

should be interpreted in the light of its “natural and customary” meaning, the Europe

Human Rights defined “time of public emergency” as “an exceptional situation of cr

gency which affects the whole population and constitutes a threat to the organise

community of which the State is composed”); The Greek Case, supra note 41; H

United Kingdom, App. No. 5493/72, 1 Eur. H.R. Rep. 737 (1976) (Eur. Ct. of H.R.) (

a three-tier test: “reasonableness” (see, e.g., European Convention for Human Right

11, arts. 5(3) & 6(1)), “necessity” (see, e.g., id., art. 10(2)) and “indispensability”); M

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where the Court noted that

the use of the term “absolutely necessary” in Article [2(2)] indicates that a stric

more compelling test of necessity must be employed from that normally ap

when determining whether state action is “necessary in a democratic society

paragraph 2 of Articles 8 to 11 . . . of the Convention. In particular, the force use

be strictly proportionate to the achievement of the aims set out in sub-paragrap

(b) and (c) of Article 2.

47. International Covenant on Civil and Political Rights, supra note 23, art. 9(4

Convention for Human Rights, supra note 12, art. 5(4); American Convention on Hu

supra note 23, arts. 25(1) & 27(2); Habeas Corpus in Emergency Situations, Advisory O

8/87, 1987 Inter-Am. Ct. H.R. (ser. A) No. 8 (Jan. 30, 1987); Siracusa Principles, su

para. 70(b) (stating “[n]o person shall be detained for an indefinite period of time, 

tained pending judicial investigation or trial or detained without charge . . .”); Genera

29, supra note 24, para. 16 (“In order to protect non-derogable rights, the right to ta

ings before a court to enable the court to decide without delay on the lawfulness o

must not be diminished by a State party’s decision to derogate from the Covenan

A(FC) and Others(FC) v. Secretary of State for the Home Department [2004] UKH

able at http://www.unhcr.org/refworld/docid/42ef723c4.html; Boumediene v. Bus

2229 (2008) (holding that, the procedures laid out in the Detainee Treatment Act 

quate substitutes for the habeas writ, the Military Commissions Act of 2006 operat

constitutional suspension of that writ. The detainees were not barred from seekin

invoking the Suspension Clause merely because they had been designated as “enem

ants” or held at Guantanamo Bay, Cuba).

48. General Comment 29, supra note 24.

49. Id., para. 2.

50. Id., para. 5.

51. Id., para. 9.

52. Id. See also THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN 

CUSTOMARY LAW (1989); THEODOR MERON, THE HUMANIZATION OF INTERNAT

(2006).

53. General Comment 29, supra note 24, para. 7.

54. Id., paras. 7 & 8.

55. Id., para. 13.

56. Id., para. 13(b).

57. See, e.g., Concluding Observations of the Human Rights Committee: Unit

America, supra note 29 (covering a wide range of issues regarding the International C

Civil and Political Rights in relation to detention during armed conflicts in Iraq, Afgh

other overseas locations, the Committee only made a passing reference in paragraph 1

cases of suspicious death in custody” although numerous media and human rights o

reports indicate a number of suspicious deaths of those held by the United States in 

Theatre Internment Facility in Iraq (see, e.g., Tim Golden, In U.S. Report, Brutal Detail

Inmates’ Deaths, NEW YORK TIMES, May 20, 2005, at A1, available at http://www.n

2005/05/20/international/asia/20abuse.html?ex=1274241600&en=4579c146cb14cfd6&

58. The United States and the United Kingdom (Report of the Human Rights 

U.N. Doc. A/50/40 (Oct. 3, 1995)) and France (Report of the Human Rights Comm

Doc. A/51/40 (Sept. 16, 1996)).

59. This further weakens any US claim to be a persistent objector.

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Committee, U.N. Doc. CCPR/C/OP/1, at 112 (Mar. 31, 1982).

61. Concluding Observations of the Human Rights Committee: Israel, U.N. Do

79/Add.93 (Aug. 18, 1998); Concluding Observations of the Human Rights Comm

non, U.N. Doc. CCPR/C/79/Add.78 (Apr. 1, 1977); Concluding Observations of 

Rights Committee: Syrian Arab Republic, U.N. Doc. CCPR/CO/71/SYR (Apr. 24, 

cluding Observations of the Human Rights Committee: Serbia, U.N. Doc. CCPR/CO

(Aug. 12, 2004).

62. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, supra note 12, para. 106–13.

63. Id., para. 106.

64. See, e.g., Judicial Guarantees in States of Emergency, Advisory Opinion OC

Inter-Am. Ct. H.R. (ser. A) No. 9 (Oct. 6, 1987); Report on Terrorism and Human R

Am. C.H.R., OEA/Ser.L/V/II.116, doc. 5, rev. 1 corr. (Oct. 22, 2002).

65. See generally Abella v. Argentina, supra note 24, paras. 160–61; Las Palmera

bia, Preliminary Objections, Judgment, 2000 Inter-Am. Ct. H.R. (ser. C) No. 67 (F

Bámaca-Velásquez v. Guatemala, 2000 Inter-Am Ct. H.R. (ser. C) No. 70 (Nov. 25, 2

et al. v. United States, Case 10.951, Inter-Am. C.H.R., Report No. 109/99 (Sept. 29, 19

on the Situation of Human Rights in Colombia, Inter-Am. C.H.R., OEA/Ser.L/V/II

rev. 1 (Feb. 26, 1999).

66. Tablada Case, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, Argentina, 

V/II.97, doc. 38 (Oct. 30, 1997); Abella v. Argentina, supra note 24; Avilán v. Colo

11.142, Inter-Am. C.H.R., Report No. 26/97, OEA/Ser.L/V/II.98, doc. 6 rev. (Apr

Saavedra v. Peru, Case 10.548, Inter-Am. C.H.R., Report No. 38/97, OEA/Ser.L/V/

rev. (Apr. 13, 1998); Bámaca-Velásquez v. Guatemala, supra note 65; Cea et al. v. 

Case 10.480, Inter-Am. C.H.R., Report No. 1/99, OEA/Ser.L/V/II.95, doc. 7 rev. (Jan

Ellacuría, S.J., et al. v. El Salvador, Case 10.488, Inter-Am. C.H.R., Report No. 13

Ser.L/V/II.106, doc. 3 (Dec. 22, 1999); Las Palmeras v. Colombia, Merits, Judgment

Am. Ct. H.R. (ser. C) No. 90 (Dec. 6, 2001); Monsignor Oscar Arnulfo Romero y Ga

Salvador, Case 11.481, Inter-Am. C.H.R. Report No. 37/00, OEA/Ser.L/V/II.106, 

(1999); Riofrío Massacre, Colombia, Case 11.654, Inter-Am. C.H.R., Report No. 6

Ser.L/V/II.111, doc. 20 rev. (Apr. 6, 2001).

67. Cyprus v. Turkey, supra note 40.

68. See infra Section IV.

69. International Covenant on Civil and Political Rights, supra note 23, art. 6

Convention on Human Rights, supra note 23, art. 4.

70. International Covenant on Civil and Political Rights, supra note 23, art. 4; Am

vention on Human Rights, supra note 23, art. 27; General Comment 29, supra note 2

71. It should be noted that this would require human rights bodies to be able to d

often legally difficult and politically contentious question of whether the law of armed 

applicable and whether the conflict was an international armed conflict or a non-i

armed conflict. They would also, presumably, have to decide whether they could rely o

rules of the law of armed conflict and to determine what they are. See Kenneth Watkin

the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 

JOURNAL OF INTERNATIONAL LAW 1 (2004); David Kretzmer,Targeted Killing of Suspect

Extra-Judicial Executions or Legitimate Means of Defence?, 16 EUROPEAN JO

INTERNATIONAL LAW 171 (2005). See also the 2007 Special Issue of the Israel Law Review

allel applicability of HR and IHL. See especially the contributions by David Kretzmer, R

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national Human Rights Law, 40 ISRAEL LAW REVIEW 306 (2007); Cordula Droege, T

between International Humanitarian Law and International Human Rights Law in 

Armed Conflict, id. at 310; and Noam Lubell, Parallel Application of International Hu

Law and International Human Rights Law: An Examination of the Debate, id. at 648

72. European Convention for Human Rights, supra note 12, art. 2.

73. Id., art. 15.

74. Sperduti & Trechsel dissenting in Cyprus v. Turkey, supra note 40; contrast 

which is a facility available to States and therefore optional. If it is not invoked, ther

on which the human rights body can do so proprio motu.

75. Some of the reasoning of the Court on occasion suggests that, knowingly or 

has been influenced by law of armed conflict reasoning. See, e.g., Ergi v. Turkey, App

94, 32 Eur. H.R. Rep. 388 (1998) (Eur. Ct. H.R.).

76. General Comment 31, para. 10, supra note 30; International Covenant on C

litical Rights,supra note 23, art. 9; American Convention on Human Rights,supra no

77. International Covenant on Civil and Political Rights, supra note 23, art. 4

Convention on Human Rights, supra note 23, art. 4(1).

78. General Comment 29, supra note 24, paras. 7–8, 13 & 16; Advisory Opinio

supra note 64; see also Advisory Opinion OC-8/87, supra note 47.

79. The reservation made by India to Article 9 and the derogation under Articl

the United Kingdom suggest they think that administrative detention or internm

derogation. U.N. Human Rights Committee, General Comment No. 8 of June 30, 19

to Liberty and Security of Persons, U.N. Doc. HRI/GEN/1/Rev.1 at 8 (1994), does 

clear whether administrative detention can be compatible with Article 9.

80. European Convention for Human Rights, supra note 12, art. 5.

81. Lawless v. Ireland, supra note 46. It is clear from the reasoning of the Court 

United Kingdom, supra note 42, that internment in Northern Ireland would have be

but for the notice of derogation. In Brogan & Others v. United Kingdom, App. No

11234/84, 11266/84 & 11386/85, 11 Eur. H.R. Rep. 117 (1988) (Eur. Ct. H.R.), th

Commission of Human Rights found a violation of Article 5 of the Convention on 

the length (rather than the ground) of detention. The United Kingdom then subm

tice of derogation and, in Brannigan v. United Kingdom, supra note 42, detentio

same legislation was subsequently found not to violate the Convention, taking acc

derogation. Perhaps the most dramatic example is the Commission decision in Cy

key, supra note 40, in which the Commission determined that, in the absence of a no

gation, detention of prisoners of war during an international armed conflict was a 

the Convention.

82. See generally Nancie Prud’homme, Lex specialis: Oversimplifying a More C

Multifaceted Relationship?, 40 ISRAEL LAW REVIEW 355 (2007); Françoise Hampso

eas of customary law in relation to the Study, in PERSPECTIVES ON THE ICRC 

CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 68 (Elizabeth Wilmshurst & S

eds., 2007).

83. By virtue of the limitation clause, a State might be able to justify the necessit

restrictions on the right to demonstrate during a situation of conflict. Similar co

would apply to freedom of expression. These would be principally or exclusively rele

international armed conflicts in national territory.

84. Watkin, supra note 71.

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T. Kamminga eds., 2004); Michael J. Dennis, Application of Human Rights Treaties Extr

in Times of Armed Conflict and Military Occupation, 99 AMERICAN JOURNAL OF INTE

LAW 119 (2005); Michael J. Dennis & Andre M. Surena, Application of the International 

Civil and Political Rights in Times of Armed Conflict and Military Occupation: The Gap b

Theory and State Practice, 13 EUROPEAN HUMAN RIGHTS LAW REVIEW 714 (2008).

86. Trial of Pakistani Prisoners of War (Pak. v. India), 1973 I.C.J. 328 (Dec. 15

ing Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1

(June 27); Armed Activities on the Territory of the Congo, supra note 27; Armed A

the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda)

(Feb. 3); Legality of the Use of Force (Serb. & Mont. v. Belg.), 2004 I.C.J. 720 (Dec. 

87. South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.) Second Phase, 1966 I.C.J. 6 

88. Comments by the Government of the United States of America on the Con

servations of the Human Rights Committee 2, U.N. Doc. CCPR/C/USA/CO/3/R

(Feb. 12, 2008); Israel has maintained this position consistently before the UN Hu

Committee in relation to the International Covenant on Civil and Political Rights an

Committee on Economic, Social and Cultural Rights under the International Coven

nomic, Social and Cultural Rights. See also Dennis, supra note 85: his objection is b

on the interpretation of the phrase “within its [the State’s] territory and subject to 

tion” in Article 2 of the International Covenant on Civil and Political Rights, which 

Rights Committee interprets as containing a disjunctive “and.” In other words, 

Rights Committee interprets “and” as “or.”

89. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, supra note 12.

90. Armed Activities on the Territory of the Congo, supra note 27.

91. General Comment 31, supra note 30, para. 10. When examining some State 

Human Rights Committee has expressly referred to occupation; in other cases, it has 

form of control that amounts to occupation, e.g., areas in Lebanon over which Isra

effective control. See Concluding Observations of the Human Rights Committee: 

note 61, para. 10; contrast Concluding Observations of the Human Rights Committe

supra note 61, paras. 4–5, which refers to occupation; alleged violations in Lebanon 

of Syrian security forces, discussed in Concluding Observations of the Human Righ

tee: Syrian Arab Republic, supra note 61, para. 10; the issue of Moroccan control o

Sahara has been raised principally in the context of the exercise of the right to self-det

Concluding Observations of the Human Rights Committee: Morocco para. 9, U.N. 

C/79/Add.113 (Nov. 1, 1999) and Concluding Observations of the Human Rights 

Morocco paras. 8 & 18, U.N. Doc. CCPR/CO/82/MAR (Dec. 1, 2004).

92. Geneva Convention IV, supra note 15, art. 64. It should be noted that one of 

acts in the Occupied Territories was to abolish the death penalty, which was, technica

of the law of armed conflict. While the occupying power is in a position of authority

have the claim to legitimacy of the sovereign.

93. Lopez Burgos v. Uruguay, Communication No. 12/52, Human Rights 

U.N. GAOR, 36th Sess., Supp. No. 40, at 176, U.N. Doc. A/36/40 (1981); Lopez Bu

guay, No. 52/1979, Views of the Human Rights Committee, U.N. Doc. CCPR/C/13

(July 29, 1981). See generally Dominic McGoldrick, Extraterritorial Application of 

tional Covenant on Civil and Political Rights, and Martin Scheinin, Extraterritorial 

International Covenant on Civil and Political Rights, both in EXTRATERRITORIAL A

OF HUMAN RIGHTS TREATIES, supra note 85, at 41 & 73, respectively.

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95. Id., para. 10.

96. Alejandre et al. v. Cuba, Case 11.589, Inter-Am. C.H.R., Report No. 86/99, 

V/11.106, doc. 3 rev. at 586 (1999).

97. Disabled Peoples’ International et al. v. United States, Case 9213, Inter-Am. C.H.

Ser.L/V/II.71, doc. 9 rev. 1 (1987) (concerning an attack on an asylum in Grenada by US 

craft during the US invasion of Grenada); Coard et al. v. United States,supra note 65 (rel

sons detained by US forces during the intervention in Grenada: the Commission held th

“within the jurisdiction” was whether a person is subject to the authority and control o

98. Salas v. United States, Case 10.573, Inter-Am. C.H.R., Report No. 31/93, O

II.85, doc. 9 rev. (1994).

99. See Center for Constitutional Rights, available at http://ccrjustice.org/

press-releases/inter-american-commission-human-rights-extends-precautionar

-guant%C3%A1 (last visited May 18, 2009).

100. Al-Skeini & Others v. Secretary of State for Defence, [2004] EWHC 2911 p

267. Al-Skeini & Others v. Secretary of State for Defence [2007] UKHL 26. In particu

sion in Bankovic, supra note 21, has attracted an unusual degree of criticism in aca

ters; see generally Rick Lawson, Life After Bankovic: On the Extraterritorial Applic

European Convention on Human Rights, in EXTRATERRITORIAL APPLICATION 

RIGHTS TREATIES, supra note 85, at 83.

101. M. v. Germany, App. No. 10307/83, 37 Eur. Comm’n H.R. Dec. & Rep. 

Stocké v. Germany, App. No. 11755/85, 199 Eur. Ct. H.R. (ser. A) (1991).

102. Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216.

103. Ilascu v. Moldova & Russia, App. No. 48787/99, 2004 Eur. Ct. H.R. 318 (20

104. Separate Opinion of Lord Brown of Eaton-under-Heywood, Al-Skeini & O

retary of State for Defence, supra note 100; Al Skeini & Ors, R (on the application of) 

of State for Defence, Court of Appeal - Administrative Court, Dec. 14, 2004, [200

[2005] 2 W.L.R. 1401, [2004] EWHC 2911 (Admin), [2005] UKHRR 427, [2005] A

105. The treaty texts require that the victim of the alleged violation (not the p

should have been within the (ICCPR: “territory” and) jurisdiction of the respond

Bankovic v. Belgium, supra note 21, para. 37, the Court referred to the fact that the 

governments stated that “[t]he arrest and detention of the applicants outside of the 

the respondent State in the Issa and Öcalan cases (Issa and Others v. Turkey, (dec.), n

30 May 2000, unreported and Öcalan v. Turkey, (dec.), no. 46221/99, 14 Dec. 2000, 

constituted, according to the Governments, a classic exercise of such legal authority 

tion over those persons by military forces on foreign soil.”

106. Öcalan v. Turkey (dec.), App. No. 46221/99, Dec. 14, 2000 (unreported).

107. Bankovic v. Belgium, supra note 21.

108. Issa & Others v. Turkey, App. No. 31821/96, 41 Eur. Ct. H.R. Rep. 567 (200

109. Isaak v. Turkey, App. No. 44587/98, Eur. Ct. H.R. (June 24, 2008). The Cou

soning, made no reference to the fact that the killing occurred in the buffer zone, t

outside Turkish territory and outside the territory over which Turkish armed force

exercise control in northern Cyprus. In its admissibility decision, Isaak v. Turke

44587/98, Eur. Ct. H.R. (Sept. 28, 2006), the issue was discussed. The Court app

founded its jurisdiction on the fact that Turkish Cypriot policemen had taken an activ

beating to death of the applicant, thereby bringing him within the jurisdiction of Turke

110. R (on the application of Al-Jedda) (FC) v. Secretary of State for Defence [200

(but it should be noted that he was detained after the passage of UN Security Counci

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longer occupied, legally speaking); Al-Skeini & Others v. Secretary of State for Defenc

100; Al Skeini & Ors, R (on the application of) v. Secretary of State for Defence, supra 

111. For example, States which assisted Kuwait in expelling the Iraqi occupyi

1990/91.

112. In other words, they may have ratified different human rights treaties.

113. This would clearly be the case where the right in question was regarded a

cogens status.

114. Afghanistan has ratified the International Convention on the Elimination o

of Racial Discrimination; the International Convention on Economic, Social a

Rights; the International Covenant on Civil and Political Rights; the Convention of t

tion of All Forms of Discrimination Against Women; the Convention against Tortur

Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on t

the Child.

115. See supra note 79 and accompanying text.

116. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 

117. Concluding Observations of the Human Rights Committee: Kosovo (Serbia

CCPR/C/UNK/CO/1 (Aug. 14, 2006). It is not clear whether the report was requeste

by the United Nations Interim Administration Mission in Kosovo (UNMIK) in right 

UNMIK as the authority exercising effective control over the territory. The situatio

was unlike the majority of peace support operations because the UN was the govern

118. EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND IN

DEGRADING TREATMENT OR PUNISHMENT (CPT), 16TH GENERAL REPORT ON 

ACTIVITIES 35 (2006), available at http://www.cpt.coe.int/EN/annual/rep-16.pdf.

119. U.N. Charter art. 103 (“In the event of a conflict between the obligations of th

of the United Nations under the present Charter and their obligations under any ot

tional agreement, their obligations under the present Charter shall prevail” (empha

Questions of Interpretation and Application of the 1971 Montreal Convention arisi

Aerial Incident at Lockerbie [Provisional Measures] (Libya v. U.K.), 1992 I.C.J. 3, 

(Apr. 14); Questions of Interpretation and Application of the 1971 Montreal Conven

from the Aerial Incident at Lockerbie [Provisional Measures] (Libya v. U.S.), 1992 I.C

para. 42 (Apr. 14); see also W. Michael Reisman, The Constitutional Crisis in the Unite

DEVELOPMENT OF THEROLE OF THE SECURITYCOUNCIL 399, 407 (René-Jean Dupuy 

120. Saramati v. France, Germany & Norway, App. No. 78166/01, Eur. Ct. H.R. (M

(admissibility decision).

121. Sayadi & Vinck v. Belgium, Communication No. 1472/2006, Human Rights 

U.N. Doc. CCPR/C/94/D/1472/2006 (Dec. 29, 2008).

122. The European Convention for Human Rights is a Council of Europe treaty a

ratified by a significantly wider group of States.

123. Kati v. Council and Commission, Joined Cases C-402/05 P and C-415/05 

2008), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ

:0002:0003:EN:PDF.

124. Behrami & Behrami v. France, App. No. 71412/01, Eur. Ct. H.R. (May 2, 200

bility decision); Saramati v. France, Germany & Norway, supra note 120. These de

been heavily criticized, inter alia, for failing to recognize that it is possible for two 

United Nations and an individual State) both to bear responsibility. See, e.g., Aurel S

tion and International Responsibility in Peace Support Operations: The Behrami an

Cases, 8 HUMAN RIGHTS LAW REVIEW 151 (2008).

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Iraqi population would support the invasion insofar as it resulted in the overthrow o

of Saddam Hussein.

126. See generally, MICHAEL MCCLINTOCK, INSTRUMENTS OF STATECRAFT: U.S. 

WARFARE, COUNTERINSURGENCY AND COUNTERTERRORISM, 1940–1990 (199

McClintock, Great Power Counterinsurgency, PowerPoint Presentation at Harva

School (2005), available at http://www.hks.harvard.edu/cchrp/programareas/c

presentations/McClintock,%20Michael.ppt.

127. There remained a problem with certain controversial killings. In some case

controversial because forces opened fire in circumstances thought to be unjustified, o

sult of a material mistake of fact. In other cases, individuals were thought to be 

“shoot to kill” policy; that is they were shot rather than being detained. It was also b

there was collusion between elements in the security forces and certain Protestant p

groups in relation to certain killings.

128. Headquarters, Department of the Army & Headquarters, Marine Corps Com

opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), availab

www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf.

129. The author had the great privilege of being invited to participate in a work

Leavenworth which examined an early draft of the COIN manual. One of the boxes 

ual gave an illustration from a real situation. If the box had not been entitled El Salvad

not have been possible to recognize the situation from the facts given. The perspect

whatever side the United States supports is, by definition, legitimate and any oppo

mate. For operational purposes, it is important to ask how a member of the local 

views the question of legitimacy. If the government practices brutal policies of rep

government may have forfeited its legitimacy in the eyes of the population. That me

first act of assisting forces should be to require the government forces to “clean up th

precondition for assistance. The fact that the United States supports a particular gove

no bearing on whether the conduct of that government is such as to win the hearts a

the population nor bearing on the view of the local population as to legitimacy.

130. US Department of Defense, Military Commission Order No. 1 (Revised), Pr

Trials by Military Commissions of Certain Non–United States Citizens in the War A

rorism (Aug. 31, 2005), available at http://www.defenselink.mil/news/Sep2005/d200

.pdf; but see AMNESTY INTERNATIONAL, MILITARY COMMISSIONS FOR “WAR O

DETAINEES (2006), available at http://www.amnesty.org/en/library/info/AMR51/05

131. W.M. v. Denmark, App. No. 17392/90, Eur. Comm’n H.R. (Oct. 14, 1992) (a

decision).

132. A possible model is the Standard Minimum Rules for the Treatment o

adopted by the First United Nations Congress on the Prevention of Crime and the T

Offenders, held at Geneva in 1955, and approved by the Economic and Social Counc

olutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, availab

www.unhchr.ch/html/menu3/b/h_comp34.htm. The topics which would need suc

include opening fire, detention (both grounds for and rights relating to, including 

guarantees), treatment in detention, search and seizure, and the relationship with in

civil society. A secondary category of topics, where coverage would be useful but pos

sential, could include the role and responsibilities of private military/security comp

133. The contexts include inter-State armed conflict, assistance to a government, 

government where no effective government exists, occupation, UN-mandated opera

mandated operations and operations involving UN forces.

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Human Rights Obligations, Armed Con

and Afghanistan:

Looking Back Before Looking Ahea

Stephen Pomper*

I. Introduction

On January 22, 2009, President Obama issued three executive or

dating, among other things, a review of US detention policy, a re

interrogation policy, and the closure of the Guantanamo Bay detention 

soon as practicable and, in any case, within a year of the order. With th

the President ensured that the US government would revisit a whole ra

mestic and international legal positions governing its use of force agains

and the Taliban, two groups with which it has been engaged in armed con

late 2001.

One issue which the new administration may have occasion to cons

context of the above-mentioned reviews, and as it contemplates furthe

engagement in Afghanistan, is the question of which body of internation

erns the use of force by the United States in extraterritorial armed confl

in particular, whether the governing international legal regime is the law 

conflict, human rights law or some combination of the two. In this are

* Attorney-adviser, Office of the Legal Adviser, US Department of State. The views 

this essay are given by the author in his personal capacity and do not necessarily r

positions of the US government or the US Department of State.

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administration will be working against a backdrop of a US governmen

that was vigorously advanced by (though in many respects it did not 

with) the Bush administration to the effect that US human rights obli

not apply to actions arising in extraterritorial armed conflicts, both b

treaty-based territorial limitations and because of the doctrine of lex spe

Given the work that lies ahead, it seems a useful moment to pause 

some of the key legal and policy arguments advanced by the Bush adm

and in some cases its allies or other commentators in this sensitive area

pose of this article is not either to advocate or criticize these arguments o

view about whether departure from them is legally available. Instead, 

down a marker on where the prior administration and like-minded part

the discussion of these issues stood as the transition to a new US administ

proached. As discussed in greater detail below, the arguments advanc

group drew from, among other things, a combination of observations 

historical US positions on the territorial limitations of human rights o

(2) uncertainty in international case law about the extent to which hum

obligations extend into extraterritorial armed-conflict situations and (3

challenges faced by European allies operating within a human rights le

work in Afghanistan.

II. Overview: General Legal Framework for Military Operations ag

Qaeda and the Taliban as of 2008

By way of background, it is useful to review the legal framework in 

United States conducted military operations against al Qaeda and the 

2008. Between 2001 and 2008, the primary legal basis for the US governm

of force against these groups remained largely the same, while the legal f

for its treatment of detainees changed dramatically (with all three branch

ernment taking steps to provide additional measures of protection to d

The US government’s approach to diplomacy concerning these issues c

well, with an increasing emphasis after 2004 on outreach to European 

close allies to seek common ground on the international legal framework 

ing the use of force against transnational terrorists. But despite importan

policy changes during this period, including the US Supreme Court’s 

sion in Boumediene v. Bush,

1 which recognized the right of Guantanamo 

to challenge the legality of their detentions in US courts (albeit on con

rather than human rights law grounds), the United States maintained its 

tion with respect to the non-application of its human rights obligations t

ritorial armed conflicts.

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From 2001 through 2008, the basis for operations rested on the pr

the United States was in an armed conflict with al Qaeda and the Tali

ghanistan—a conflict arising out of a series of attacks against the Uni

culminating in the attacks of September 11, 2001, to which the United 

sponded in self-defense as notified to the UN Security Council in Octo

During the ensuing seven years, US operations were divided between 

tions. Some US forces fought as part of Operation Enduring Freedom 

US-led coalition that operated with the consent of the post-Taliban el

ernment in Afghanistan.3 Others fought under the auspices of the Int

Security Assistance Force (ISAF)—a NATO-led coalition that operated 

the consent of the Afghan government and under a UN Security Cou

date.4 As a result, the legal basis for US operations in Afghanistan mi

scribed as “self-defense plus,” with the “plus” being consent of th

government and, in the ISAF case, a UN Security Council mandate. As a 

domestic law, Congress recognized the US government’s right to use fo

defense in its Authorization to Use Military Force dated September 18, 

the Supreme Court confirmed its right to detain combatants as an inci

right to use force in its Hamdi v. Rumsfeld decision in 2004.6

Questions about how to classify the conflict, and what protections 

should receive, were the source of more pronounced movement in th

initial position of the US government at the beginning of the fighting in 

stan was to treat the conflicts with both groups as international in chara

that neither was limited to a conflict within the territory of a single St

deny detainees captured in the conflicts protections under the Geneva 

tions.7 With respect to the Taliban, the US government concluded that t

was governed by Common Article 2 of the Geneva Conventions8 be

Taliban qualified as a high contracting party to the Conventions (in light 

erning role in Afghanistan), but that Taliban fighters did not meet the 

forth in Article 4 of the Third Geneva Convention. President Bush determ

Taliban detainees accordingly would not benefit from prisoner of war pr

As concerns al Qaeda, the US government concluded that because the 

not a high contracting party to the Geneva Conventions, it was not eligib

protections under those treaties. In the case of both groups, the US go

took the position that Common Article 39 was inapplicable, because it 

only conflicts of a non-international character.10

In 2006, the landscape shifted when the Supreme Court held in H

Rumsfeld that the conflict with al Qaeda is of a non-international cha

that Common Article 3 accordingly applies as a matter of treaty law

Hamdan did not speak to the legal protections that apply with resp

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Taliban, the Department of Defense issued, in the same year, a detaine

that applied Common Article 3 and additional protections as a baseline 

partment of Defense detention operations. These protections were in a

certain administrative procedures that the Department of Defense create

separate mechanisms to review whether detainees were being properly d

combatants and, on a periodic basis, whether they posed a threat sufficie

continued detention.12

In 2008, the Supreme Court determined in Boumediene v. Bush that 

batant Status Review Tribunals created for purposes of Guantanamo stat

were not an adequate and effective substitute for the ability to seek t

habeas corpus, and that Guantanamo detainees have a constitutional rig

test the legality of their detentions in a habeas proceeding in US cour

mained unclear, however, whether the federal courts would extend habe

detention operations at facilities such as Bagram in Afghanistan where th

ernment exercises control short of the total and indefinite control 

deemed it to enjoy at Guantanamo.14

While the courts were changing the legal landscape, the US govern

working to change the diplomatic landscape. Following the 2004 election

administration began to expand its outreach to foreign governments on 

related issues, responding in part to a recommendation by the 9/11 Com

that the United States should engage its allies to develop a common fram

the treatment and detention of terrorists. A major theme of this outreach 

to underscore that the international legal framework governing milit

tions, and in particular detention operations, in extraterritorial non-int

armed conflict was underdeveloped. Department of State Legal Adviser 

linger argued that among the fundamental issues that the law of arme

failed to address were questions about whom a State could hold 

belligerents, what sort of status determination procedures detainees s

ceive, how to determine when the end of conflict had arrived such that 

must be released, and what sort of “non-refoulement” style protections sh

to the transfer or release of detainees outside a State’s territory.16

The US government under the prior administration argued that the

erned areas in the law of armed conflict presented troubling areas of u

for the US government, its allies and its courts (all of which had reason 

cerned about the conduct of detention operations in the absence of clear 

ance). But the government nevertheless resisted the position—adv

human rights advocates, the International Committee of the Red Cross an

that human rights law did or should present a legal basis for filling them. 

US government agreed that consideration should be given as to how 

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framework governing non

international armed conflict should be ex

also maintained that an across-the-board acceptance of the application 

rights principles in conflict was not required by law and was to some exte

istic as a matter of policy.17 The balance of this article describes certain 

practical arguments that the prior administration (and in some cases its 

vanced in support of this position.

III. Legal Arguments

This section highlights three of the arguments that the prior administr

in one case, the government of Canada—advanced in support of its leg

concerning the territorial limitations of certain human rights obligation

gument the US government advanced was that both the text and the n

history of the International Covenant on Civil and Political Rights18 (wh

most comprehensive articulation of relevant human rights obligations 

the United States is party, was the focus of much of the debate in this a

cated that it was only intended to apply within a State’s own territory. A

gument was that even States purporting to apply the law of armed co

human rights law conjointly to extraterritorial armed conflicts did not 

have a clear understanding about how to balance certain fundamental te

tween the two bodies of law. A third relevant argument—advanced in liti

tween the Canadian government and Amnesty International—was that c

decisions by foreign courts and international tribunals reflected a persist

tainty about whether and to what extent human rights law should appl

territorial armed conflicts.

A. Text and History

The prior administration’s positions with respect to the text and history 

ternational Covenant on Civil and Political Rights were thoroughly explo

US government’s 2005 report to the UN Human Rights Committee (th

experts who review treaty reports under the Covenant)19 and elsewhere

guments begin with the text of Article 2, which provides that a State party 

the Covenant to persons “within its territory and subject to its jurisdictio

over time commentators, including Thomas Buergenthal,21 the UN Com

Human Rights, and some courts developed arguments that Article 2 sho

terpreted to mean that obligations under the International Covenant on 

Political Rights apply to a State’s conduct toward persons who are either 

tory or subject to its jurisdiction, the US government continued to tak

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that the plainest reading of the text is that both territory and jurisdictio

ments must be met in order for the Covenant to apply.

Moreover, the US government took the position—for example, in it

tions to the UN Committee on Human Rights’ General Comment 31—t

extent it was necessary to look beyond the text of Article 2 to th

préparatoires to clarify the intent of the framers in drafting the prov

travaux fully supported the US government perspective on the scope of 

nant.22 Here, the US government noted that Eleanor Roosevelt and th

negotiating the Covenant had insisted on the reference to “territory” in 

because they did not believe it would be practicable to apply the guaran

Covenant extraterritorially—specifically in situations of occupation.23 T

egation encountered resistance from certain other delegations, whic

amend the operative language that constrained the application of the Co

a State’s own territory, but the US position prevailed.24 By way of con

mentators have noted that the post-war environment in which the Int

Covenant on Civil and Political Rights was framed was one in which m

international community saw the law of armed conflict and human rig

coming from different sources and occupying different spheres—wi

rights law being derived from enlightenment-era principles about the a

rights of individuals vis-à-vis their governments, and the law of armed c

ing a mostly restrictive set of principles reflecting a grand bargain am

about the proper balance of military necessity against humanitarian lim

The prior administration also noted that, while certain other govern

international bodies had subsequently accepted a broader interpretat

scope of application of the International Covenant on Civil and Politi

the US government’s position had been consistent across decades and ad

tions—and had been advanced not only by Mrs. Roosevelt at the time 

nant was negotiated but also by State Department Legal Adviser Conrad 

the first US report to the United Nations Human Rights Committee in 

B. The Nuclear Weapons/Wall Conundrum

One of the key sources of the position that human rights law and the law 

conflict apply conjointly in the context of international armed conflict is 

visory opinion of the International Court of Justice, the so-called Nuclea

advisory opinion. In that opinion the ICJ wrote as follows:

The Court observes that the protection of the International Covenant [on] C

Political Rights does not cease in times of war, except by operation of Article 

Covenant whereby certain provisions may be derogated from in a time of 

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gypg, , pp

the right not arbitrarily to be deprived of one’s life applies also in hostilities. Th

what is an arbitrary deprivation of life, however, then falls to be determine

applicable lex specialis, namely, the law applicable in armed conflict which is d

to regulate the conduct of hostilities.27

Several years later, in its advisory opinion on the Legal Consequences o

struction of a Wall in the Occupied Palestinian Territory, the ICJ reinforced 

orated on its Nuclear Weapons holding as follows:

More generally, the Court considers that the protection offered by huma

conventions does not cease in case of armed conflict, save through the 

provisions for derogation of the kind to be found in Article 4 of the Inter

Covenant on Civil and Political Rights. As regards the relationship 

international humanitarian law and human rights law, there are thus three 

situations: some rights may be exclusively matters of international humanita

others may be exclusively matters of human rights law; yet others may be m

both these branches of international law. In order to answer the question put 

Court will have to take into consideration both these branches of internatio

namely human rights law and, as lex specialis, international humanitarian law

When these two ICJ passages are read together, the key principles that e

pear to be that (1) human rights law continues to apply in armed conf

armed conflict, some rights may be governed by human rights law, some 

of armed conflict, and some by both; and (3) when a human rights rule 

flict with a law of armed conflict rule, the law of armed conflict takes pre

lex specialis.

29

In reflecting on whether tensions between human rights law and 

armed conflict could be reconciled by applying these or other principles

administration noted that reconciliation might be achieved in some 

would be difficult if not impossible in others. One area where it acknowl

the two bodies might be reconciled concerns the right not to be arbitraril

of one’s life, as set forth in Article 6 of the International Covenant on 

Political Rights.30 Here, the US government’s analysis tracked that o

which discussed the application of Article 6 in armed conflict in the abo

language from its Nuclear Weapons opinion. The ICJ found that in arme

Article 6 continues to apply, but that a deprivation of life would not be d

bitrary for purposes of Article 6 if it occurred in a manner that complie

law of armed conflict (i.e., in a manner consistent with the principles o

tionality and distinction, and that did not run afoul of any other treaty o

ary international law rule). The Nuclear Weapons discussion of Article 

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make entirely clear whether the law of armed conflict rule displaces t

rights rule (suggesting that in cases where there is a violation the remedy 

to what is afforded under the law of armed conflict) or whether it more 

gives content to a human rights rule while the two rules apply simultaneo

gesting that where there is a violation the individual is accountable unde

man rights law and the law of armed conflict). It does, however, make 

action consistent with the law of armed conflict is not a human rights v

But the prior administration also suggested that commentators calli

joint application of human rights law and the law of armed conflict ha

give meaningful guidance on how to achieve reconciliation between the t

of law where the tension between them is more nuanced—for example, o

of whether an individual detained in armed conflict may seek review of 

in court. Here, the Geneva Conventions do not offer procedures by whic

ants may challenge the legality of their detentions, either in internation

international armed conflict. By contrast, Article 9 of the International 

on Civil and Political Rights prohibits arbitrary detention and provides 

review for all prisoners and detainees. A question that accordingly prese

whether the absence of a procedure for judicial review of detentions 

Geneva Conventions suggests that the law of armed conflict is not, on 

the lex specialis, leaving human rights law to furnish the relevant rule. In 

on this issue, US Legal Adviser John Bellinger asked:

Would it be practical to expect States detaining tens of thousands of unp

combatants in a non-international armed conflict to bring them before a judge 

delay? This is not something States must do even for prisoners of war under th

Geneva Convention. If the answer is that the State should derogate from Articl

exigencies of a civil war so demand, then what contribution has human rights la

to answering questions regarding the procedures owed combatants i

international armed conflict? 31

An area of similarly subtle tension between the two bodies of law co

principle of “non-refoulement.” Under human rights law, the princip

refoulement (memorialized in Article 3 of the Convention against To

Other Cruel, Inhuman or Degrading Treatment or Punishment32 and 

provides a safeguard against the transfer of individuals to situations whe

likely to be tortured. As Legal Adviser Bellinger noted, however, the law 

conflict provides for no such protection with respect to the transfer of p

war and other detainees at the end of an armed conflict.33 While in practic

administration looked to human rights law to guide its transfer policy with 

individuals detained in the conflict with al Qaeda (for example, it establis

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policy against transferring Guantanamo detainees to countries where it d

they were more likely than not to be tortured), Bellinger noted the com

that arose as a result, observing that “[t]his policy, central as it is to West

has meant that dozens of detainees who cannot be repatriated . . . have re

Guantanamo for years after we have wished to transfer them.”34

In a similar vein, the prior administration’s pleadings in Munaf 

also pointed to certain sovereignty-related complications that m

through the application of human rights non-refoulement principles 

conflict—particularly when one State is conducting hostilities against a 

actor on another State’s territory. In Munaf v. Geren, the US governme

that the Supreme Court should deny the relief sought by two America

held in Iraq, who had requested that the Court enjoin the US governm

turning them over to the government of Iraq for prosecution, becau

concerns about post-transfer mistreatment.35 In ruling for the govern

Court appeared to weigh human rights considerations—noting, am

things, the US government’s statement that it had a policy not to transfe

uals in cases where torture would likely result—but also appeared to pla

emphasis on Iraq’s legitimate sovereign interest in bringing to justice i

accused of committing crimes on its territory. The Court wrote that

because Omar and Munaf [the two prisoners] are being held by United State

Forces at the behest of the Iraqi Government pending their prosecution 

courts . . . release of any kind [as opposed to transferring the detainees to Iraqi 

would interfere with the sovereign authority of Iraq “to punish offenses agains

committed within its borders.”36

In this passage, the Court highlighted one of the quandaries that a Stat

when it seeks to apply its human rights standards on the territory of ano

and accordingly appeared to echo the concern expressed by the US deleg

negotiated the text of Article 2 of the International Covenant on Civil an

Rights—i.e., that it might not be possible for States to enforce their hum

obligations outside their sovereign territory.

C. Uncertain Litigation Landscape

Another relevant argument—this one successfully advanced by the Can

ernment in its litigation with Amnesty International—was that internat

precedent concerning the extraterritorial application of human rights o

in armed conflict is unsettled, and that to the extent it supports the extra

application of human rights obligations, it does so only in limited cases

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The Canadian government advanced this argument in defending 

brought by Amnesty International. Amnesty had sued Canada under the 

Charter38 to prevent it from transferring detainees captured in Afgh

Afghan custody, because of non-refoulement concerns. Because the q

whether the Canadian Charter applies extraterritorially turns in part on th

of whether Canada’s international human rights obligations apply in Af

the Canadian government’s pleadings explored foreign and internation

concerning the extraterritorial application of human rights obligatio

pleadings, the Canadian government observed that the Grand Chamber 

ropean Court of Human Rights had ruled in its Bankovic39 opinion of 20

scope of the European Convention on Human Rights40 is normally conf

territorial limits of the Convention’s contracting States. While Bankovic 

edged that the European Convention on Human Rights applies extraterr

certain cases (e.g., where the conduct in question occurs in a State’s 

consulates, airplanes or vessels, and in cases where a State exercises some o

public powers in the territory of another State) the Court ruled that no 

tional basis existed in the context of a NATO bombing raid on a Serbian ra

that killed sixteen people.41

The Canadian trial court hearing the case acknowledged that seve

quent European Court of Human Rights cases appeared to go conside

ther than Bankovic on the question of when the European Convention o

Rights applies extraterritorially (e.g., by finding that the Convention 

when a contracting State has effective control over a particular person 

own borders, regardless of whether it controls the territory where that 

being held) but took the position that these cases do not take precedenc

Grand Chamber’s decision in Bankovic.

42 In ruling for the Canadian go

the court concluded that as a whole the body of jurisprudence relating 

traterritorial application of human rights law appeared “uncertain,”43 an

Charter accordingly did not confer rights on Afghans detained by Canad

in Afghanistan.44

IV. Practical Issues: Afghanistan

Moving from law to practice, commentators observing ISAF/NATO op

Afghanistan noted certain practical concerns arising from the applicat

man rights obligations in extraterritorial armed conflict.

One concern relates to operational constraints that human rights law 

on combat operations. In May 2008, a European news magazine repo

European partner in the ISAF coalition had failed to capture a Taliban l

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was believed by NATO commanders to be active in planting roadside b

sheltering suicide bombers, and to be responsible for a 2007 attack on a 

tory that had resulted in almost eighty deaths. When an effort to capture 

vidual failed, the coalition partner’s troops had an opportunity to targe

had to pull back because they lacked the authorization to do so, permitt

flee. A senior official from this coalition partner explained to the magaz

fugitive like [the escaped Taliban leader] is not an aggressor and should n

unless necessary.”45 The magazine additionally reported that this coaliti

considered “[t]he use of lethal force [to be] prohibited unless an attac

place or is imminent.”46 The emphasis on using force only in self-defense 

that either the coalition partner did not believe itself to be engaged in 

conflict, or that it had nevertheless instructed its troops to act in accorda

human rights law framework and treat its Afghan operations as a law en

exercise. The magazine noted that this coalition partner considered th

approaches by its allies to targeting in Afghanistan as “not being in confo

international law” and suggested that the difference in legal approache

uted to “tension and friction” among NATO partners.47 The magazine

accordingly suggested that the application of human rights law may imp

tive military operations both by limiting the scope of operational flexib

applied to the exclusion of law of armed conflict principles and by creati

nation issues between coalition partners.

A second concern that has been raised by commentators is that the d

between US and European approaches to detention may be partly respo

having impaired the ability of NATO/ISAF to conduct effective detent

tions. Under a rule that applies to all NATO/ISAF forces (including U

nents under NATO/ISAF command), forces are generally prohibited fro

detainees for longer than ninety-six hours before transferring them to A

thorities.48 This system avoids legal and other complications that might a

medium- or long-term detention, particularly for States that might face 

under the European Convention on Human Rights, but it has its cost

David Bosco, a senior editor at Foreign Policy magazine, wrote that, as 

this system,

NATO troops have no system in place for regularly interrogating Taliban fig

intelligence purposes. Whenever possible, they let the Afghan troops they oper

take custody. When that’s not possible, they house their prisoners briefly in m

facilities while they arrange a transfer to the Afghans. NATO guidelines cal

handover of prisoners within 96 hours, far too brief a time for soldiers to ev

whom they’re holding. And once prisoners are in Afghan hands, internation

easily lose track of them.49

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Human rights advocates such as Amnesty International have also cri

ninety-six-hour rule—from a different angle—arguing that it actua

human rights concerns, because it requires the transfer of detainees to A

thorities notwithstanding what Amnesty has argued to be an unaccepta

mistreatment. Indeed, it was concern about NATO/ISAF transfer polici

Amnesty to bring the above-described lawsuit seeking to enjoin the gove

Canada from transferring detainees to Afghan custody pending an imp

in post-transfer human rights safeguards.

V. Conclusion

As discussed, the prior administration took the view that the law of arm

did not provide an adequate legal framework for addressing all of the 

arise in armed conflict with non-State groups, but argued that legal and p

siderations weighed against the notion that gaps in the framework shou

simply by looking to human rights law. Instead, it emphasized that th

tional community needed to work together to develop new approaches t

address the gaps while steering clear of the legal and policy pitfalls it assoc

the application of human rights law in armed conflict.50 The new adm

will, of course, develop its own views about where the gaps lie and how 

them. In determining whether or how to depart from the path taken by 

administration, a first step will be to look back at some of the argument

cerns described in this article and elsewhere that helped to put the US go

on its present course.

Notes

1. Boumediene v. Bush, 128 S. Ct. 2229 (2008).

2. Letter from John Negroponte, US Ambassador to the United Nations, t

dent of the UN Security Council, U.N. Doc. S/2001/946 (Oct. 7, 2001), availab

avalon.law.yale.edu/sept11/un_006.asp.

3. Christopher Greenwood, Report, International Law Framework for the T

Persons Detained in Afghanistan by Canadian Forces para. 13 (2007), availab

web.ncf.ca/fk624/data/Report%20-%20Greenwood%20(14%20Aug%2007).pdf.

4. Id., para. 9.

5. Pub.L. 107-40, 115 Stat. 224 (2001).

6. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

7. Convention for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [Geneva Convent

vention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 

Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Conventi

vention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 

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of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Geneva Convention IV]; all 

DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2

222, 244 and 301, respectively.

8. Geneva Conventions I–IV, art. 2, supra note 7, at 198, 222, 244 and 301, res

9. Geneva Conventions I–IV, art. 3, supra note 7, at 198, 223, 245 and 302, res

10. Memorandum from George Bush to Vice President et al., Humane Trea

Qaeda and Taliban Detainees (Feb. 7, 2002), reprinted in THE TORTURE PAPERS: TH

ABU GHRAIB 134 (Karen J. Greenberg & Joshua Dratel eds., 2005), available at 

.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf.

11. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

12. For a discussion of these administrative procedures, see Jack Goldsmit

Chesney, Terrorism and the Convergence of Criminal and Military Detention Mode

FORD LAW REVIEW 1079, 1110–11 and 1132 (2008).

13. Boumediene v. Bush, 128 S. Ct. 2229 (2008).

14. In March 2009, the United States District Court for the District of Columb

certain Bagram detainees who were captured outside Afghanistan enjoyed the same h

as Guantanamo detainees. Al Maqaleh v. Gates, No. 06-1669 (D.D.C. Apr. 2, 2009)

15. The 9/11 Commission Report: Final Report of the National Commission 

Attacks upon the United States (2004), available at http://www.9-11commission.go

16. John B. Bellinger, US State Department Legal Advisor, Oxford Leverhulme 

Lecture on the Changing Character of War, available at http://2001-2009.state.g

112723.htm [hereinafter Bellinger Oxford Speech].

17. Id.

18. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.

19. Because the United States had two outstanding reports, it consolidated the 

Third Reports into one report. This single report is referred to as the “Second and Th

Report.” U.N. Human Rights Committee, Third Periodic Reports of States Parties D

United States of America, U.N. Doc. CCPR/C/USA/3 (Nov. 28, 2005), available at 

.state.gov/g/drl/rls/55504.htm#annex1 [hereinafter Report to the UN].

20. US Observations on Human Rights Committee General Comment 31 (De

available at http://2001-2009.state.gov/s/l/2007/112674.htm.

21. Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permiss

tions, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND 

RIGHTS 72, 74 (Louis Henkin ed., 1981).

22. See US Observations, supra note 20.

23. Matthew Waxman, Head of US Delegation, Principal Deputy Directo

Planning, US Department of State, Opening Statement (July 17, 2006), available at h

.usmission.gov/Press2006/0717Waxman.html.

24. Report to the UN, supra note 19.

25. Michelle A. Hansen, Preventing the Emasculation of Warfare: Halting the E

Human Rights Law into Armed Conflict, 194 MILITARY LAW REVIEW 1, 2–4 (2008).

26. Summary record of the 53rd Session, 1405th meeting: United States of Amer

man Rights Committee, U.N. Doc. CCPR/C/SR 1405, paras. 7, 20 (1995).

27. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 199

240, para. 25 (July 8).

28. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

Advisory Opinion, 2004 I.C.J. 136, 178, para. 106 (July 9).

537

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y p

and Political Rights applies extraterritorially, meaning that territorial limitations 

rights obligations are not an available tool for reconciling tensions between the tw

law. Id., para. 111.

30. See Bellinger Oxford Speech, supra note 16 (observing that if human rights 

applied in armed-conflict situations “[s]ome rights deemed non-derogable by the [In

Covenant on Civil and Political Rights], such as the right to life, would be clearly d

more specific law of war rules that govern as the lex specialis”).

31. Id.

32. Convention against Torture and Other Cruel, Inhuman or Degrading T

Punishment, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. D

(1984).

33. For purposes of international armed conflicts, Article 118 of Geneva Conven

pra note 7, simply states that “[p]risoners of war shall be released and repatriated w

after the cessation of active hostilities”; as concerns non-international armed conflict

Article 3, supra note 9, is entirely silent on repatriation/transfer safeguards.

34. Bellinger Oxford Speech, supra note 16.

35. Brief for the Federal Parties, Munaf v. Geren (No. 06-1666) (2008), availab

www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-394_FederalParties.pdf.

36. Munaf v. Geren, 128 S. Ct. 2207 (2008).

37. Respondent’s Factum Re: Determination of Two Questions, Pursuant to Ru

Federal Courts Rules, Regarding the Application of the Canadian Charter of Righ

doms ¶¶ 62–66, Amnesty International Canada v. Chief of the Defence Staff, Court 

324-07 (2008), available at http://www.bccla.org/antiterrorissue/factumcrown.pdf.

38. Canadian Charter of Rights and Freedoms, Constitution Act, 1982 (Sched

Canada Act 1982 (U.K.)), available at http://laws.justice.gc.ca/en/charter/.

39. Bankovic and Others v. Belgium, 2001-XII Eur. Ct. H.R. 333, 123 ILR 94.

40. Convention for the Protection of Human Rights and Fundamental Freedo

1950, 213 U.N.T.S. 221, available at http://conventions.coe.int/Treaty/en/Tre

005.htm.

41. The Bankovic decision states that

[i]n sum, the case-law of the Court demonstrates that its recognition of the exe

extra-territorial jurisdiction by a Contracting State is exceptional: it has done s

the respondent State, through the effective control of the relevant territory 

inhabitants abroad as a consequence of military occupation or through the c

invitation or acquiescence of the Government of that territory, exercises all or s

the public powers normally to be exercised by that Government.

Bankovic, supra note 39, para. 71. In comparing the European Court of Human Right

Bankovicto the US government’s position that the International Covenant on Civil a

Rights never applies extraterritorially, it bears mention that unlike Article 2 of the C

jurisdictional provision of the European Convention on Human Rights does no

reference to “territory.” Article 1 of the Convention provides that “[t]he High 

Parties shall secure to everyone within their jurisdiction the rights and freedom

Section I of this Convention.”

42. The Canadian court noted in particular the European Court of Human Rig

in Issa v. Turkey—which addressed whether the European Convention on Human 

erned Turkey’s conduct toward a group of shepherds apprehended inside Iraq an

the argument that a State may be held accountable for violations of its obligation

538

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gpy 

under the former State’s authority and control.” Issa & Others v. Turkey, App. No

41 Eur. Ct. H.R. Rep. 567 (2004). But the Canadian court agreed with Lord Brown 

Skeini case, who stated that the Bankovic opinion issued from a higher chamber o

pean Court of Human Rights than Issa and, to the extent of any discrepancies, app

better law. Amnesty International Canada v. Chief of the Defence Staff (Canada), 

336, paras. 234–35, available at http://www.unhcr.org/refworld/docid/49cb8cff2.ht

43. Amnesty International Canada, supra note 42, para. 214.

44. While not discussed in Amnesty, two other major decisions from the past two 

ably have contributed to the uncertainty surrounding the question of when human r

tions might be deemed to apply in extraterritorial armed conflict. First, in its B

Saramati cases, the European Court of Human Rights suggested that provisions of th

Convention on Human Rights do not reach the extraterritorial military activities 

State armed forces if acting as part of a UN mission, because the Court lacks jurisdict

United Nations and its operations. Behrami v. France and Saramati v. France, 45 Eur

(2007). Second, the UK House of Lords held in its al Jedda decision that where a U

Council resolution has provided authority for security detention, this effectively trum

hibition against detention in Article 5 of the Convention, because Article 103 of the 

provides that in cases where a State’s Charter obligations conflict with its other tr

tions, the Charter prevails. At the same time, however, the House of Lords held that 

ernment must ensure that detainee rights under Article 5 are not infringed “to any gr

than is inherent in such detention.” R (on the Application of Al-Jedda) (FC) v. Secre

for Defence [2007] UKHL 58, para. 39, available at http://www.publications.parliam

ld200708/ldjudgmt/jd071212/jedda-1.htm.

45. Suzanne Koelbl & Alexander Szandar, Not Licensed to Kill, SPIEGEL ONLIN

TIONAL (Apr. 19, 2008), http://www.spiegel.de/international/world/0,1518,554033,

46. Id.

47. Id.

48. Ashley Deeks, Detention in Afghanistan: The Need for an Integrated Plan (2

able at http://www.csis.org/media/csis/pubs/080213_deeks_afghanistan.pdf.

49. David Bosco, A Duty NATO Is Dodging in Afghanistan, WASHINGTON PO

2006, at B07.

50. Bellinger Oxford Speech, supra note 16.

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APPENDIX

CONTRIBUTORS

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Contributors

Editor’s Note: In order to most accurately portray the events of the conferen

graphical data in this appendix reflects the position in which the authors w

at the time of the conference, as set forth in the conference brochures and m

Commander Alan Cole, Royal Navy, is the international law attorney o

of the UK Director of Naval Legal Services. He initially trained at Britan

Naval College before joining his first ship in 1991 and served in a numb

tions, including logistics officer of HMS Splendid. Since training as a b

Gray’s Inn and qualifying as a lawyer, he has served as legal adviser to 

mander in Chief Fleet and as an advocate at courts-martial, as well as a p

at sea as logistics officer of a destroyer. As a commander he has served as 

military legal officer at the UK Permanent Joint Headquarters, responsib

viding advice to the Chief of Joint Operations on all UK joint operation

larly those in Afghanistan. He has also served in Baghdad on General 

Reconciliation Team and as legal adviser to the coalition maritime force in 

Professor Geoffrey S. Corn joined the faculty of South Texas College of L

2005 as an assistant professor of law. Prior to joining the faculty, Profe

served as the Special Assistant for Law of War Matters to the US Ar

Advocate General, the Army’s senior law of war adviser and representa

Department of Defense Law of War Working Group. Professor Corn spe

one years on active duty in the Army, retiring in the rank of lieutenan

Professor Corn routinely provides expert assistance to military, govern

non-governmental agencies. He is a contributor to the legal affairs web

and to the foreign affairs and national security daily World Politics Watc

frequently participates in national and international conferences rela

tional security law issues. He is the faculty adviser to the National Securi

ciety at South Texas College of Law. Professor Corn earned his Juris Do

George Washington University and his Master of Laws degree from 

Judge Advocate General’s School. He is also a graduate of the Army Com

Staff College.

Professor Yoram Dinstein is Professor Emeritus of International Law a

University (Israel). He is a former President of the University, as well 

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Rector and former Dean of the Faculty of Law. Professor Dinstein serve

pointments as the Charles H. Stockton Professor of International Law at 

War College. He was also a Humboldt Fellow at the Max Planck Institute 

national Law at Heidelberg (Germany), a Meltzer Visiting Professor o

tional Law at New York University and a Visiting Professor of Law at the 

of Toronto. Professor Dinstein is a Member of the Institute of Internat

and Vice President of Israel’s national branch of the International Law A

and of the Israel United Nations Association. He was also a member of t

tive Council of the American Society of International Law. At present, he 

ber of the Council of the San Remo International Institute of Humanit

He has written extensively on subjects relating to international law, hum

and the law of armed conflict. He is the founder and Editor of the Israel Y

Human Rights. He is the author of War, Aggression and Self-Defence, 

fourth edition. Professor Dinstein’s latest book is The Conduct of Hostil

the Law of International Armed Conflict.

Professor Charles Garraway is an international law adviser to the B

Cross. He retired in 2003 after thirty years in the UK Army Legal Service

as a criminal prosecutor and then as an adviser on the law of armed confli

erational law. In that capacity, he represented the Ministry of Defence at 

international conferences and was part of UK delegations to the Fir

Conference for the 1981 Conventional Weapons Convention, the negot

the establishment of an International Criminal Court, and the Diplomat

ence that led to the 1999 Second Protocol to the 1954 Hague Conventio

tural Property. He was also the senior Army lawyer deployed to the Ara

during the 1990–91 Gulf conflict. Since retiring, Professor Garraway s

months in Baghdad working for the Foreign Office on transitional jus

and six months as a senior research fellow at the British Institute of Int

and Comparative Law. He was the 2004–05 Charles H. Stockton Professo

national Law at the Naval War College. He is currently a Visiting Pr

King’s College, London, a Visiting Fellow in the Department of Hum

University of Essex and an Associate Fellow at the Royal Institute of Int

Affairs (Chatham House) in both its International Law and Internation

programs. In 2006, he was elected as a member of the International Hum

Fact Finding Commission, established under Article 90 of Additional Pr

the Geneva Conventions of 1949.

Professor Ryan Goodman is the Rita E. Hauser Professor of Human R

Humanitarian Law and the director of the Human Rights Program at Ha

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School. Professor Goodman received his Juris Doctor degree from 

School. He received a Doctor of Philosophy degree in sociology 

University. He has worked at the US Department of State, the Int

Criminal Tribunal for the former Yugoslavia, and non-governmental 

tions in India, South Africa, Switzerland, Thailand and the United Stat

cent publications have appeared in the American Journal of Internationa

California Law Review, the Duke Law Journal, the European Journal of Int

Law, the Harvard Law Review, the Stanford Law Review and the Yale La

His publications also include International Humanitarian Law (forthcom

with Derek Jinks & Michael Schmitt) and International Human Rights 

(with Henry Steiner & Philip Alston).

Professor Françoise J. Hampson is Professor of Law, Department of 

member of the Human Rights Centre at the University of Essex. 

Hampson was an independent expert member of the UN Sub-Commiss

Promotion and Protection of Human Rights from 1998 to 2007. She 

taught at the University of Dundee. She has acted as a consultant on hum

law to the International Committee of the Red Cross and taught at staff 

equivalents in the United Kingdom, United States, Canada and Ghana. 

sented Oxfam and Save the Children Fund (United Kingdom) at the P

Committee and first session of the Review Conference for the Certain 

tional Weapons Convention. Professor Hampson has successfully litig

cases before the European Court of Human Rights in Strasbourg and, i

tion of her contribution to the development of law in this area, was aw

man Rights Lawyer of the Year jointly with her colleague from th

Professor Kevin Boyle. She has taught, researched and published wid

fields of armed conflict and international humanitarian law and on the 

Convention on Human Rights. She is currently working on internatio

sues relating to private military/security companies and is a member o

pendent panel appointed by the International Court of Justice to ex

conduct of the parties to the conflict in Lebanon in 2006.

Lieutenant Colonel Eric Talbot Jensen, JA, US Army, is currently servin

International Law Branch, Office of the Judge Advocate General, US A

assignments include Deputy Staff Judge Advocate for the 1st Cavalry Di

Task Force Baghdad, professor of international and operational law at 

Advocate General’s Legal Center and School and observer/trainer at th

Maneuver Training Center in Hohenfels, Germany. Lieutenant Colonel 

deployed with the US Army to Iraq in support of Operation Iraqi Fr

545

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United Nations Preventive Deployment Force in Skopje, Macedonia; an

Bosnia in support of Operation Joint Endeavor/Guard. LTC Jensen is a g

Brigham Young University and University of Notre Dame Law School

Master of Laws degrees from The Judge Advocate General’s Legal C

School and Yale Law School. Lieutenant Colonel Jensen has published in 

of law journals and other publications on topics related to internation

law of war and national security law. Recent publications have appea

Houston Law Review, Yale Law Journal and Denver Journal of Internation

Policy.

Professor John F. Murphy is professor of law at Villanova University 

Law. In addition to teaching, Professor Murphy’s career includes a year i

a Ford Foundation Fellowship; private practice in New York City and W

DC; and service in the Office of the Assistant Legal Adviser for United N

fairs, US Department of State. He was previously on the law faculty at th

sity of Kansas and has been a visiting professor at Cornell Univ

Georgetown University. Professor Murphy was the 1980–81 Charles H

Professor of International Law at the Naval War College. He is the aut

merous articles, comments and reviews on international law and relatio

as the author or editor of various books and monographs. Most recen

authored The United States and the Rule of Law in International Affairs (

casebook (with Alan C. Swan), The Regulation of International Busines

nomic Relations(2d ed.), was awarded a certificate of merit by the Americ

of International Law in 1992. Professor Murphy has served as a consul

US Departments of State and Justice, the ABA Standing Committee on 

National Security, and the United Nations Crime Bureau, and has testif

Congress on several occasions. He is currently the American Bar Associ

ternate Observer at the US Mission to the United Nations.

Professor Sean D. Murphy is the Patricia Roberts Harris Research Profes

at the George Washington University Law School in Washington, DC

Murphy has a Juris Doctor degree from Columbia University, a Master o

gree from Cambridge University and a Doctor of Juridical Science degre

University of Virginia School of Law. From 1987 to 1995, Professo

served in the Office of the Legal Adviser at the US Department of State

ing in politico-military matters, international litigation and internationa

mental law. From July 1995 to July 1998, Professor Murphy served as 

Counselor of the US Embassy in The Hague. In that capacity, he repre

US government before the International Court of Justice, the Int

546

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Criminal Tribunal for the former Yugoslavia, the Permanent Court of A

the Hague Conference on Private International Law and served as the U

the Iran-US Claims Tribunal. Since entering academia, Professor M

continued to represent governments and private litigants before int

courts and tribunals, most recently Ethiopia and Suriname. Professor 

book entitled Humanitarian Intervention: The United Nations in an Evolv

Order won the American Society of International Law 1997 certificate o

preeminent contribution to creative scholarship. He has published articles 

of national and international law journals, and was awarded the Americ

of International Law 1994 Deák Prize for best scholarship by a younger a

most recent books are Principles of International Law and a casebook, U

Relations and National Security Law (with Thomas Franck & Michael 

Professor Murphy is a member of the Board of Editors of the American 

International Law and has served on the Executive Council of the Amer

ety of International Law.

Mr. Stephane Ojeda was appointed Legal Advisor to the Operations at th

tional Committee of the Red Cross (ICRC) in Geneva in May 2005. In h

capacity, he counsels ICRC field delegations, in particular in the United 

ghanistan and Iraq, on international law issues relating to detention in 

against terrorism. He is also in charge of legal support to ICRC operati

rope and the Balkans. Previously, he served as detention delegate in Eth

Israel, and as a legal advisor in Lebanon, Israel and the Palestinian Terri

fore joining the ICRC in 1999, he worked in Mali for a non-governmen

zation implementing development programs. Earlier, he served as an a

humanitarian issues in Iraq and France for the French Foreign Ministry. 

holds a master’s degree in international humanitarian action and a mast

in international law from the University of Aix-Marseille, France.

Mr. W. Hays Parks entered federal service in 1963 as a commissioned of

US Marine Corps. Military assignments included service as an infantry o

senior prosecuting attorney in Vietnam; Marine Corps representati

Judge Advocate General’s School, US Army; congressional liaison offi

Secretary of the Navy; and as Head, Law of War Branch, Office of the Ju

cate General of the Navy. Mr. Parks was the Special Assistant to The Judge 

General of the Army for Law of War Matters from 1979 to 2003. He has 

US representative for law of war negotiations in New York, Geneva, T

and Vienna. He joined the Office of General Counsel, Department of D

August 2003. Mr. Parks occupied the Charles H. Stockton Chair of Int

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Law at the Naval War College for academic year 1984

85. In 1987 he 

member on the presidential commission established to examine allege

breaches in the US Embassy in Moscow. Mr. Parks has lectured on the law 

military operations at the National, Army, Air Force and Naval War Co

military staff colleges; and other military schools and units. An adjunct 

of international law at the American University School of Law, he has 

articles in a variety of military and legal journals. In 2001 he became the 

son in the history of the US Special Operations Command to receive 

mand’s top civilian award, the US Special Operations Command Ou

Civilian Service Medal. In 2006 he was awarded the US Special Operati

mand’s Major General William F. Garrison Award for his lifetime legal 

US Special Operations Forces.

Mr. Stephen Pomper is an attorney adviser in the Office of the Legal Adv

US Department of State. His current portfolio includes matters relating 

of war and US government counterterrorism operations. In his prior assi

the Department of State, Mr. Pomper advised the Office of the Coord

Counterterrorism on law enforcement issues. Before joining the Depa

State in 2002, Mr. Pomper practiced law at Cleary, Gottlieb, Steen, and 

He is a graduate of Harvard College and Yale Law School.

Professor W. Michael Reisman is the Myres S. McDougal Professor o

tional Law at the Yale Law School, where he has been on the faculty sinc

has been a visiting professor in Tokyo, Hong Kong, Berlin, Basel, Paris an

He is a Fellow of the World Academy of Art and Science and a former m

its executive council. He is the president of the Arbitration Tribunal of th

International Settlements. He was a member of the Eritrea-Ethiopia 

Commission, is a member of the Advisory Committee on International 

Department of State, vice chairman of the Policy Sciences Center, Inc., 

of the Board of the Foreign Policy Association and has been elected to t

de Droit International. He has published widely in the area of internation

has served as arbitrator and counsel in many international cases. 

Reisman was president of the Inter-American Commission on Human 

the Organization of American States, vice president and honorary vice p

the American Society of International Law and editor-in-chief of the 

Journal of International Law. His most recent books are Foreign Invest

putes: Cases, Materials and Commentary (with Raymond Doak Bishop 

Crawford); International Law in Contemporary Perspective (with Mah

Arsanjani, Siegfried Wiessner & Gayl S. Westerman); Jurisdiction in Int

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Law; and Law in Brief Encounters, Chinese Translation, Shenghuozhongd

Falu [Microscopic Laws in Life].

Professor Sir Adam Roberts is a Senior Research Fellow of the Centre fo

tional Studies, Department of Politics and International Relations, Un

Oxford; an Emeritus Fellow of Balliol College; and President-elect of t

Academy. He was the Montague Burton Professor of International Re

Oxford University, 1986 to 2007. From 1968 to 1981, Professor Ro

Lecturer in International Relations at the London School of Economics 

cal Science. From 1981 to 1986 he was the Alastair Buchan Reader in Int

Relations and Fellow of St Antony’s College, Oxford. Professor Rob

member of the Council of the Royal Institute of International Affairs 

House), London from 1985 to 1991 and a member of the Council, Int

Institute for Strategic Studies, London from 2002 to the present. In 19

elected Fellow of the British Academy. In 1997, he was elected Honora

London School of Economics and Political Science. In 2002, Professor R

appointed Knight Commander of the Order of St. Michael and S

(KCMG). Professor Sir Roberts has published several books on the t

practice of territorial defense and international relations and articles in 

journals and various newspapers, including the American Journal of Int

Law, British Year Book of International Law, International Affairs, Intern

curity, Review of International Studies, Survival, The Times Literary Suppl

The World Today. His most recent book is The United Nations Security C

War: The Evolution of Thought and Practice since 1945 (with Vaugh

Jennifer Welsh & Dominik Zaum).

Professor Marco Sassòli is professor of international law at the Un

Geneva (Switzerland) and chairs the boards of the Geneva Academy of Int

Humanitarian Law and Human Rights and of Geneva Call, a non-gov

organization with the objective to engage armed non-State actors to 

humanitarian norms. He is also member of the board of the Internation

on Human Rights Policy. From 2001 to 2003, he was a professor of int

law at the University of Quebec in Montreal, Canada, where he remains 

ate professor. He is also an associate professor at the University of Laval

Sassòli graduated as doctor of laws at the University of Basel (Switzerla

member of the Swiss bar. He held a number of positions with the Int

Committee of the Red Cross from 1985 to 1997, including deputy head of it

sion, head of delegation in Jordan and Syria, and as protection coordina

former Yugoslavia. He has also served as executive secretary of the Int

549

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Commission of Jurists and as registrar at the Swiss Supreme Court. H

lished on international humanitarian law, human rights law, internatio

nal law, international law and private actors, the sources of internation

on state responsibility. With Antoine Bouvier he authored the second 

How Does Law Protect in War?, which was published by the Internationa

tee of the Red Cross in 2006.

Professor Michael N. Schmitt is the 2007–08 Charles H. Stockton Profe

ternational Law at the Naval War College. Professor Schmitt was prev

rector, Program in Advanced Security Studies at the George C. Marshall 

Center for Security Studies in Garmisch-Partenkirchen, Germany, wh

turned as Dean of the College of International and Security Studies in Au

Before joining the Marshall Center faculty, Professor Schmitt served as a 

vocate in the US Air Force for twenty years. During his military career, 

ized in operational and international law and was senior legal adviser t

Air Force units, including units conducting combat operations over nort

Formerly on the faculties of the US Air Force Academy and US Naval W

he also has been a visiting scholar at Yale Law School and lectures regul

International Institute of Humanitarian Law and the NATO School. The 

many scholarly articles on law and military affairs and contributing edito

tiple volumes of the Naval War College’s International Law Studies (“Bl

series, his works have been published in Belgium, Chile, Germany, Is

Norway, Peru, Sweden and Switzerland. Professor Schmitt serves on th

boards of the International Review of the Red Cross and Yearbook of Int

Humanitarian Law, the Executive Committee of the American Society o

tional Law’s Lieber Society, the Steering Committee for Harvard Unive

ternational Humanitarian Law Research Initiative and as Professorial Fe

University of Surrey’s International Law Centre.

Professor Gary D. Solis is the 2006–08 Scholar in Residence at the Law 

the Library of Congress. He is an adjunct professor of law at Georgetow

sity Law Center, where he teaches the law of armed conflict. He teaches 

war in San Remo, Italy as well. He is a retired US Marine with twenty-s

active duty, including tours in Vietnam as an armor officer. He holds a Ju

degree from the University of California at Davis, a Master of Laws degre

nal law from George Washington University and a Doctor of Philosophy 

the law of war from the London School of Economics and Political S

taught in the London School of Economics Law Department for three 

then moved to the United States Military Academy in 1996. He receive

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Apgar Award, given to West Point

s outstanding professor. He retired f

Point in 2006. His books are Marines and Military Law in Vietnam and S

An American War Crime. He is writing a law of war textbook for Camb

versity Press.

Professor David Turns is Senior Lecturer in Laws of War at the Defence 

of the United Kingdom (Cranfield University). Prior to assuming his cu

tion, he was a lecturer in law at the University of Liverpool (1994–2007). 

spent six months in Vienna as a visiting professor at the Institut für Völke

Internationale Beziehungen, Universität Wien. He specializes in public int

law, with particular emphasis on international humanitarian law and int

criminal law. He is an invited member of the International Humanitarian 

cussion Group at the British Institute of International and Comparative 

don, and a contributor to the group’s Perspectives on the ICRC Study on C

International Humanitarian Law. Professor Turns has published on sev

international law topics in a variety of journals in the United Kingdom 

countries, including Australia, Austria, Germany and the United States

publications are “The ‘War on Terror’ Through British and Internationa

itarian Eyes: Comparative Perspectives on Selected Legal Issues” in the 

City Law Review; “Weapons in the ICRC Study on Customary Internat

manitarian Law,” which appears in the Journal of Conflict & Security Law

Treatment of Detainees and the ‘Global War on Terror’” in the Israel Y

Human Rights.

Brigadier-General Kenneth Watkin, Canadian Forces, is the Judge Advo

eral of the Canadian Forces. During his twenty-five years as a military le

Brigadier-General Watkin has served asthe Deputy Judge Advocate Gen

ations, Special Assistant to the Judge Advocate General and the Assistant 

vocate General/Atlantic Region. He has also been the director of offic

with human rights and information law, operational law, claims and c

tion, and training. His operational law experience has included service as 

viser to the Canadian Navy, adviser to Canadian commanders in Bosnia, 

Deputy Judge Advocate General/Operations at the time of the terrorist 

September 11, 2001 and during a significant portion of the subsequen

ments in connection with the “Campaign Against Terrorism.” He wa

adviser to a 1993 Canadian military/civilian board of inquiry that invest

activities of the Canadian Airborne Regiment Battle Group in Somalia. F

until 2005, he was counsel in respect to various investigations and inquir

from the 1994 genocide in Rwanda. Brigadier-General Watkin is 

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published author on a variety of operational law topics, including the law 

conflict, discipline and human rights.

Professor Matthew C. Waxman is associate professor of law at Colu

School, where he specializes in international law and national security la

viously served at the US Department of State, as Principal Deputy Direc

icy Planning (2005–7). His prior government appointments includ

Assistant Secretary of Defense for Detainee Affairs, Director for Conting

ning and International Justice at the National Security Council, and sp

tant to National Security Adviser Condoleezza Rice. He is a gradua

College and Yale Law School, and studied international relations as a 

Scholar in the United Kingdom. After law school, he served as law clerk to 

Court Justice David H. Souter and US Court of Appeals Judge Joel M. Fl

a member and International Affairs Fellow of the Council on Foreign 

and a member of the Hoover Institution Task Force on National Security 

His publications include The Dynamics of Coercion: American Foreign 

the Limits of Military Might (with Daniel Byman).

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Index

A

Abella v. Argentina 420, 429, 461, 514, 519

Abu Ghraib 160, 177, 215, 239, 287, 330, 345, 354, 367, 537

Additional Protocols 164, 223, 238, 276, 299, 303, 331, 357, 400, 406, 459

Additional Protocol I 143, 147, 164–165, 167, 222–224, 228, 230–231, 238–239

277, 286, 297, 299–301, 304, 306, 318, 320, 322–323, 329–331, 333–334, 336–

360, 363, 365–367, 369, 371, 399–400, 404–405, 409–410, 418–419, 421, 425

433, 440–442, 444, 456, 458–460, 492, 497, 500, 513, 544

Additional Protocol II 164–165, 167, 230, 239, 242, 286, 297, 306, 330, 360, 365

371, 399–400, 404, 409–410, 419, 421, 425, 428, 430, 440–441, 444, 459–460

Afghan Interim Authority 9, 52, 92, 121, 229, 242, 393–394

Afghan military 68, 146

Afghan National Army 21, 29, 145, 235, 396

Afghan National Police 18, 150

Ahmedzai, Najibullah 81

air attacks 309, 332

Al Qaeda xxi, xxiii–xxvi, 4, 7–9, 11–12, 16, 31, 33–36, 38, 50–54, 60, 62–63, 65–70, 

86, 92, 95–102, 109, 111, 113–117, 120, 123–126, 129–133, 135, 139, 141–146

157–161, 166–167, 169–179, 186, 215, 220–221, 224–227, 229, 236, 238–241, 

251, 257, 261, 270–271, 273, 277–290, 292–293, 295, 298–300, 303–305, 308, 

317, 330, 344, 351, 354, 358, 367, 371, 374, 379–380, 382, 388, 392, 432–433, 

486, 525–527, 532, 537

See also al-Qaida

Alejandre v. Cuba 434–435, 457, 522

al-Qaida 65, 139, 282, 344

See also Al Qaeda

Al-Skeini case 402–403, 410, 502, 522–523, 539

American Convention on Human Rights 434, 449, 457, 497, 501, 514–515, 517–52

Amin, Hafizullah 69, 81

Amnesty International 40, 74, 355, 456, 466, 480, 485, 511–512, 524, 529, 533–534

Amnesty International Canada 463, 480, 538–539

Armed Activities on the Territory of the Congo case 47, 49, 56, 99, 106, 126, 128, 138

456–457, 492, 500, 515–516, 521

armed attack xxiv, 20, 44–47, 49–51, 72, 83, 85, 98–99, 104, 123–125, 127–130, 132

161, 194, 236, 270, 344, 394, 419

armed conflict 9, 11, 18–19, 31, 43–44, 48–49, 51–55, 80, 143–148, 150–151, 157, 1

167, 169–170, 172–173, 181–206, 208–217, 219–222, 224–226, 229–231, 233

251, 253, 261, 268–269, 272–273, 277–278, 280–281, 285, 299–300, 307–308, 

327, 329–332, 336, 343–355, 357–360, 362–369, 371–374, 378–380, 382, 389–

400, 402–406, 410–412, 416–422, 425, 428–433, 440–447, 449–454, 459–463

508, 510–511, 513–521, 524–536, 538–539, 544–545, 550, 552

553

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, , , , , , , 

See also non-international armed conflict

armed forces xxviii, 26, 47–48, 92, 121–122, 149, 158, 163–166, 168, 171, 175, 182–

188, 190, 192–194, 196, 199–201, 204–209, 211, 213–214, 216, 218, 222–223, 

234, 254, 261, 264, 268, 271–277, 289, 297, 300, 302, 311, 314, 317, 346, 359–

388, 391–392, 394, 400–401, 412, 417, 419–420, 425, 428, 430–431, 440–443, 

454, 459, 466, 486–488, 499, 503, 508–511, 522, 539

arrest 19, 44, 93, 162, 335, 349, 364, 431, 436–437, 444–449, 451–453, 457, 460, 463

Article 5 tribunals 149, 171, 279, 347–348, 362–363, 368, 402, 460

Ashcroft, John 174, 179, 304, 376

Australia 84, 88, 93, 143–145, 244, 251, 287, 410, 551

B

belligerency 53, 300, 445, 453, 488

belligerent xxiii, 43, 52–53, 70, 120, 176, 192, 199–200, 214, 218, 222, 224–226, 231

263–265, 270, 274, 294, 298, 305, 317, 327, 330, 347–348, 368, 390, 399–400, 

463, 528

bifurcated conflict 169, 172–174, 182–183, 185, 190

bin Laden, Osama 6–7, 62–63, 65, 82–85, 111, 129–130, 135, 143, 152, 161, 165, 24

270–271, 288, 290, 293–295, 300

Bonn Agreement 38, 52, 65, 87–88, 92, 104, 121–122, 229, 393, 396, 470

Boumediene v. Bush 304–305, 350, 368, 462, 518, 526, 528, 536–537

Brahimi, Lakhdar 14, 16, 31, 87, 257

Bush, George H.W. 86, 305

Bush, George W. 57, 79, 82, 84, 87, 90, 117, 143–144, 152, 157, 159, 161, 166, 176, 22

237, 251, 278, 280–281, 284–285, 295, 305, 330, 358, 366, 381, 387–388, 470, 5

See also Bush administration

Bush administration xxviii, 82–83, 87, 102, 160, 165, 171, 200, 211, 224, 250–251, 2

275, 281–282, 284, 286, 291, 298–299, 305, 353, 392, 526

See also Bush, George W.

C

Canada 21, 93, 105, 114, 143–145, 287, 408, 411, 431, 453, 458, 463, 466, 480, 504, 

534, 536, 538–539, 545, 549

Canadian Charter 534, 538

Caroline case 49, 162, 177

Central Intelligence Agency 81, 115, 118, 227–229, 233, 237, 241, 243, 293, 375, 38

Chechnya 290, 410, 447, 495

China 11, 104, 187, 213, 253, 257, 298, 308

civil war 3, 6, 11, 13–15, 33, 43–44, 61–62, 82, 89, 164, 167, 172, 198, 213, 239, 247

258–259, 261, 272–273, 275, 284, 287, 291, 293, 296, 304, 346, 374, 395, 417, 

civilian casualties 18–19, 29, 52, 86, 94, 97, 114, 199, 310, 312–313, 323–324, 331, 359

civilian objects 189, 308, 311–312, 317, 323, 331, 359, 409

554

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, , , 

coalition xxi, xxiii, xxv, xxvii, 8, 10, 16, 18–21, 40, 42, 71, 93, 98–99, 101, 113–114, 

124–125, 130, 141–146, 148–149, 151, 181–182, 187, 226, 229, 236, 249, 251, 

270, 273, 275, 277, 283–284, 292, 307–309, 313–315, 324, 328, 330, 338–339, 

350–352, 358–359, 367, 388–389, 392–394, 396–397, 401, 412, 415, 421–424, 

453, 485–486, 527, 534–535, 543

COIN 4, 18, 22–27, 40, 309–310, 321–322, 332, 337, 415–416, 427, 468, 480, 508, 5

See also counterinsurgency

Cold War 7, 10, 13–14, 20, 23, 33, 38, 137, 467

collateral casualties 116

collateral damage 52, 97, 106, 147, 229, 309–313, 316, 321–325, 328, 331, 337, 395, 

collateral damage estimate methodology 311, 321–322, 328, 332–333

collective self-defense 50, 83, 103, 121, 123–124, 142, 146, 161, 393

See also self-defense

combat operations 19, 21, 52, 85, 103, 183, 186–190, 199–200, 203, 206, 213, 217, 2

262, 299, 320, 335, 345, 388, 391–392, 401–402, 405, 412–416, 424, 427, 467, 

combat power 184, 188, 193, 195–198, 200–206, 208–211, 218, 331

combatant immunity 195, 261, 440, 442

Combatant Status Review Tribunals 362, 381, 528

conflict spectrum 412, 415–417, 422, 425

Corfu Channel case 49, 56, 73, 75

counterinsurgency xxiii, xxvi, 4, 9, 11, 13, 17, 19, 21–24, 27, 30, 33, 36–37, 40–41, 6

102, 139, 291, 309–312, 321–323, 328–329, 332, 343, 351–352, 388, 392, 396, 

416, 421–424, 426, 468, 508

See also COIN

courts-martial 233, 235, 243, 409, 543

covert missions 116–117, 133

cross-border attacks 71, 99, 101, 109, 114–115, 118, 124–125, 128

cross-border operations xxiv, 109–111, 116–126, 128, 131–134, 360

cultural property 189, 331, 359

customary international law 47, 72, 127, 147, 150, 168–169, 171, 189, 231, 242, 328

338, 358–359, 374, 392, 396, 398, 403, 419, 421, 423, 433, 442, 531

Cyprus 20, 388, 456–457, 495, 501–502, 516–517, 519–520, 522

D

Daoud, Mohammad 81, 160, 253

deadly force 202–203, 205, 208, 211, 314

Delahunty, Robert 167, 169, 172–173, 178–179, 215, 239, 304

Democratic Republic of Afghanistan 61

Department of Justice 158–160, 175, 178–179, 215, 251, 279, 369, 470

Department of State xxv, xxviii, 96, 160, 168–171, 173, 176, 178–179, 183, 209, 215

224, 239, 241–242, 256–257, 279, 294, 304, 338, 354–355, 470–471, 474, 481, 

530, 537, 545–546, 548, 552

See also Secretary of State

deportation 220, 230–232, 242

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py , , , , , , , 

derogate 438, 449, 454, 461, 492–493, 496–498, 502, 505, 517–518, 530, 532

derogation 439, 447, 449, 453, 490, 492–497, 505, 507, 513–514, 517, 520, 531

detain xxvi–xxvii, 21, 149–150, 157–159, 162, 173–176, 182, 195, 203, 207–208, 218

231–234, 243, 262, 278–280, 282, 305, 320–321, 343–353, 355–356, 358, 361–

371–383, 402–403, 405, 409–410, 431–432, 436–438, 443, 445–446, 453, 455, 

460, 494, 497, 500–503, 505–510, 514, 518, 522, 524, 526–528, 532–537, 539

See also detention

detainee 21, 157–159, 173–176, 182, 224, 233–234, 243, 278–280, 282, 305, 345–35

364, 366, 375–379, 381–382, 403, 405, 409–410, 437–438, 453, 457–458, 494, 

506, 509–510, 514, 518, 526–528, 532–537, 539

detention xxv–xxvi, 53, 143, 149–151, 162–163, 167, 169, 175–176, 218, 343–345, 3

355–358, 363–366, 369, 371–383, 401, 431–432, 436, 438–439, 444–446, 448, 

456, 458, 461, 472, 493–498, 501–503, 505–508, 514, 517–518, 520, 522, 524–

532, 535, 539, 547

See also detain

detention operations xxvi, 150, 343–345, 347, 351, 514, 528, 535

detention policy 376, 379, 525

direct participation 220, 314–315, 317–319, 327, 334, 336, 374, 381, 441, 458–459

discrimination 14, 262, 266, 270, 401, 449

distinction 4, 23, 46, 50, 88, 131, 163, 166–168, 175, 186–187, 197, 200, 202–204, 2

263, 269, 275–276, 287–288, 294, 296, 303, 308, 311, 314, 328, 330, 359, 374, 

440–441, 443, 458, 489, 515, 531

DoD Directive 3000.05 406–407, 413, 415, 426, 467, 470, 473, 480–481

domestic law 44–45, 152, 162, 171, 175, 206, 224, 242–243, 349–350, 363–364, 374

422, 444, 454–455, 488–489, 497, 512, 527

due process 44, 349, 448, 496, 498, 508–510, 524

Durand Line 11, 111, 134, 290

E

effects-based targeting xxvii, 466, 476–479

Egypt 220, 253

embassies 82, 123, 142, 166, 240, 248, 257, 293, 534

Enemy Combatant Review Board 350

enemy combatants 222, 225–226, 240, 298, 346, 350, 352–353, 356, 376, 381, 462, 5

European Commission of Human Rights 436, 490, 495, 508, 517, 520

European Convention on Human Rights 150, 402–403, 405, 410, 434, 436, 439, 44

461–462, 516, 522, 534–535, 538–539

European Convention on the Suppression of Terrorism 45, 55

European Court of Human Rights 152, 402–403, 434–436, 438, 446–449, 456, 458, 

490, 495–496, 501–502, 504, 507–508, 516–517, 534, 538–539, 545

European Union 91, 248, 258, 293, 397, 408, 506

Ex parte Quirin 225, 240

extraterritorial armed conflict 186, 525–526, 529, 534, 539

extraterritorial law enforcement xxiv, 183, 194, 196, 202, 205–206, 208, 210–211

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failed State 26, 165, 167, 170, 174, 209, 239, 254, 258–260, 279, 284, 304

feasible precautions 311, 313, 321, 324–325, 329

Federally Administered Tribal Areas 11–12, 36, 38, 113–115, 119, 134

FM 3-07 407, 422, 425–428, 430

See also stability operations

foreign fighters 100, 111, 113, 116, 120, 124, 127, 232, 289

foreign forces 3, 21, 30, 133, 358, 360, 433, 435, 439, 504

France 14, 41, 93, 143, 152, 265, 298, 301–302, 408–409, 458, 480, 494, 512, 516, 51

547

Free French 192, 273–275, 300–301

Freikorps 222–223

French Indochina 27, 30

Frontier Corps 12, 114–116, 135

G

Geneva Accords 13, 38, 81

Geneva Conventions

Common Article 2 162–164, 170, 172–173, 185–186, 188, 190, 198, 209–210, 2

221–224, 226, 237, 239, 269, 274, 299–300, 329, 398, 428, 433, 527

Common Article 3 53, 150, 159, 162, 164–165, 167, 172–173, 184–187, 189, 198

212–213, 215, 221, 224–225, 231, 238–239, 266, 278–279, 282, 298, 330, 345–

360, 368, 371–374, 379, 399–402, 404, 409, 418–419, 425, 430, 440–441, 445

492–493, 509, 513, 516, 527–528

Geneva Convention I 57, 149, 152, 177–178, 214, 230–232, 237–239, 242, 329–

360–363, 365–368, 402, 456, 459–460, 513–514, 521, 536–538

Geneva Convention II 57, 149, 152, 177–178, 214, 237–239, 329, 355, 360–363, 

402, 456, 460, 536–538

Geneva Convention III 57, 149, 152, 158, 166, 171, 173, 177–178, 190, 214, 237

284, 299, 329, 345, 355, 360–363, 366–368, 383, 402, 445, 456, 458, 460, 537–

Geneva Convention IV 57, 152, 177, 230–232, 237, 239, 242, 266, 275–277, 329

363, 365, 374, 379, 402, 430, 444, 453, 456, 459–462, 513–514, 521, 537

See also Article 5 tribunals

Germany 21, 39, 44, 65, 87, 93–94, 104, 121, 142–143, 152, 222, 228–230, 266, 273, 

436, 458, 469–470, 480, 522–523, 544–545, 550–551

Global War on Terror xxiii, 143–145, 195, 200, 211, 245, 330, 381, 388, 409, 415, 5

See also War on Terror

Gonzales, Alberto 173–174, 176, 179, 232–233, 239, 243, 279, 281, 304–305

Guantanamo Bay xxv, 169, 176, 220, 230–234, 280, 305, 343, 345–347, 350, 352–35

362–369, 375, 377, 381–382, 460, 501, 506, 514, 518, 525–526, 528, 533, 537

guerrillas 126, 219, 263, 269, 380

557

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habeas corpus 53, 348, 350, 444, 449, 453, 462, 493, 528

Hague Convention II 264–265, 276, 304

Hague Convention II with Respect to the Laws and Customs of War on Land 266, 

367, 430

Hague Convention IV 266, 275–277

Hague Peace Conference 264, 266, 273

Hague Regulations 300, 359, 421, 430

Haiti 168, 213, 304, 388, 390, 394–396, 405, 407, 427

Hamdan v. Rumsfeld 44, 55, 184–186, 189, 198, 213, 215, 224–225, 240, 330, 343, 3

353–354, 364, 368, 379, 409, 527, 537

Hamdi v. Rumsfeld 353, 369, 382, 527, 536

Hellfire missiles 116, 227, 229

Hess v. United Kingdom 436–437, 457

Hezbollah 126, 138, 195–196, 198–199, 339

High Contracting Party 159, 162, 164, 167, 170, 239, 271, 278, 282, 345, 399–400, 4

hors de combat 163, 213, 285, 373, 401, 440–441, 447, 451

hostile act 47, 214, 314–316, 318, 326–327, 335, 441

hostile intent 315–316, 326–327, 335

hot pursuit 72, 116, 132, 136

Human Rights Act 1998 402–403, 410

human rights law xxvii–xxviii, 150–151, 215, 238, 259, 286, 335, 346–347, 349–350

365, 372–373, 402, 417, 419, 421–422, 430–431, 434, 442, 446, 457–458, 460, 

485–500, 502–516, 518, 520–526, 528–532, 534–537, 545, 550

human rights obligations xxviii, 210, 434, 439, 458, 488, 492–493, 500, 502–507, 51

533–534, 538–539

Human Rights Watch 18, 39, 138, 212, 291, 293, 313, 322, 324–326, 334, 337–338, 

human shields 97, 322, 337, 359

humane treatment 157, 184–185, 189, 261–262, 266, 278–279, 282, 284, 346, 365, 3

380

humanitarian intervention 392, 398, 420

humanity 169, 187, 200, 206, 213, 230, 265, 327

Hussein, Saddam 86, 388, 436, 457

I

ICRC 145, 149, 164, 188, 191–193, 195, 214–215, 227–228, 231, 268, 270–271, 274

303, 312, 317–318, 320, 328, 330, 333–334, 336–337, 349, 355, 357, 361, 367–

373, 377–380, 382–383, 418–419, 425, 428, 433, 441–442, 444–445, 450, 453

459, 462, 520, 547, 551

See also International Committee of the Red Cross

Ilascu v. Moldova and Russia 501, 522

I’m Alone case 72, 75

India 5, 11, 33, 79, 82, 101, 110–111, 115, 219, 256, 294, 520–521, 545–546

indigenous attire xxvi, 249–250, 275, 277, 303

558

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gy , , , , , , , , , , , , , , 

113, 119–120, 122, 134, 139, 255, 291, 309–312, 316, 321–323, 328–329, 332–

351–352, 356, 360, 375, 381, 388, 392, 396, 401, 404, 406, 415–417, 421–424, 

468, 486, 508, 514, 524

insurgent xxvii, 3, 9, 19, 24–27, 29, 35, 41, 44, 51–53, 70, 72, 101, 113, 134, 145, 167

229, 231, 300, 309–310, 317, 321–322, 328, 338, 351–353, 375, 389, 397–399, 

417, 422

intelligence, surveillance and reconnaissance 308, 316, 321, 324

intelligence value xxvi, 375–379, 381–382

Inter-American Commission on Human Rights 374, 380, 429, 434, 447, 490, 495–4

504, 506

Inter-American Court of Human Rights 434, 449, 490, 495–496, 501, 506

Inter-American Treaty of Reciprocal Assistance 46, 56, 85

internal armed conflict 145, 167, 186–187, 189–190, 206, 212, 216, 222, 349, 380, 4

419, 421, 428, 514

international armed conflict xxv–xxvii, 9, 11, 18, 43–44, 51–53, 55, 143–145, 147, 1

164, 167, 169, 173, 182–183, 185, 189–191, 193–195, 212–213, 215–216, 221–

229, 231, 237–238, 241, 261, 268–269, 272–273, 278, 300, 307–308, 329–331, 

348–349, 357–360, 362–365, 367–368, 371–374, 378–380, 389, 398–400, 404

418–419, 421, 432–433, 440–445, 447, 452–454, 459–461, 463, 486, 490, 493–

503, 505–508, 511, 519–520, 528–530, 532, 538

International Committee of the Red Cross xxvi, 145, 164, 188, 213, 227, 285–286, 3

330, 338, 349, 357, 361, 372, 418, 433, 528, 545, 547, 549

See also ICRC

International Convention for the Suppression of the Financing of Terrorism 45, 55

International Court of Justice xxiv, xxviii, 46–50, 73, 99, 106, 110–111, 124–125, 12

134, 137–138, 150, 338, 368, 400, 419, 434, 448–449, 456–458, 461, 490, 522, 

546

International Covenant on Civil and Political Rights 349, 355, 434, 448–449, 457–4

486, 491–492, 494, 497, 500, 504–505, 514–523, 529–533, 537–538

International Criminal Court 73, 106, 110, 134, 230, 242, 371, 379, 434, 448–449, 4

460, 461, 463, 514, 522, 544

international humanitarian law xxvi, 15, 17, 152, 170, 185, 211–212, 215, 217, 240, 

312–314, 317–318, 320–322, 325, 327–331, 333–338, 355, 357, 360–361, 363–

374, 380, 398, 429, 431–433, 436, 440–441, 443–445, 447, 449–455, 458–459, 

495, 505, 513, 519–520, 531

international security xxiv, 3–4, 7, 15–16, 29–30, 32–34, 100, 393

International Security Assistance Force xxiii, xxv, 8–9, 18–22, 30–33, 36–38, 40, 52

91–92, 94, 100, 102, 121–122, 137, 144–146, 148–151, 153, 220–221, 312, 345

393–396, 398–403, 408–409, 422, 439, 463, 486, 503–505, 512, 527, 534–536

international war 3–4, 8–9, 11, 31, 54, 172, 185

internee 53, 350, 363–364, 368, 377, 439, 454

internment 151, 358, 363, 365, 368, 372, 374–375, 378, 439, 443–445, 448, 453–454

493, 497, 505, 508, 514, 520

interrogation 175, 222, 225, 233, 376–378, 382, 525

Inter-Services Intelligence Directorate 61, 68, 81, 135, 254–255, 273, 301

559

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, , , , , , , , , , , , , , , 

Iraq xxv, 10, 17, 22, 25–27, 32–33, 42, 49, 54, 68, 72, 79, 86, 93–95, 98, 102–103, 10

130, 135, 137–138, 145, 151, 224, 228–230, 232–236, 243–245, 270, 287, 291, 

316, 325, 332–333, 335, 337–338, 345, 352, 355–356, 365–366, 376–377, 382, 

392, 402–404, 413–414, 427, 430, 435–436, 438, 456–457, 467, 469, 474, 479, 

502, 506, 518, 523–524, 533, 538, 545, 547, 550

irregular forces 72, 99, 126, 302

irregular warfare 309, 414, 416–417

Islam 7–8, 23, 25, 30, 33, 37, 42, 61–62, 69, 81–82, 84, 96, 102, 104, 111, 114–115, 1

134, 137, 139, 220–221, 252, 254–255, 257, 287, 290, 293, 295

Islamic Council of Afghanistan 254

Islamic Emirate of Afghanistan 8, 61, 295

Israel xix, xxi, 16, 43, 55, 57, 99, 106, 125–126, 138, 195–196, 198–199, 212, 215–21

241–242, 286, 330, 336–339, 366–367, 400–401, 409, 422, 429–431, 434, 456, 

463, 491–492, 500, 514–515, 519–521, 543–544, 547, 550–551

Issa and Others v. Turkey 435, 457, 502, 522, 538–539

Italy 44, 81, 93, 104, 229, 298, 458, 461, 470, 516, 550

ius cogens 439, 504, 523

J

judge advocates xxviii, 316, 328, 335, 465, 470

jurisdiction 53, 110, 134, 161, 173, 182, 185, 216, 362, 374, 376, 403, 434–439, 452, 

499, 501–504, 511–512, 515–516, 521–522, 529–530, 538–539

jus ad bellum xxiv, xxvii, 50, 52, 80, 85, 109–110, 116, 118–120, 123, 126–127, 129–

162, 166, 197, 203–205, 297, 357, 389, 392, 397, 408, 418–419, 427, 458

jus in bello xxiv–xxv, xxvii, 50, 52–55, 80, 85, 97, 188, 197, 203, 209, 297, 357, 389, 

408, 418, 427, 458

jus militaire 262, 270

K

Karmal, Babrak 61, 81

Karzai, Hamid 7, 16, 19, 32, 51–52, 62, 69–72, 74, 80, 84, 87–91, 94, 96–97, 100–10

124, 288, 291–292, 308, 313, 334, 389, 433

Kashmir 220, 255, 257

Kayani, Ashfaq Parvez 119, 136

Kazakhstan 256, 294

Kenya 82, 123, 142–143, 166, 257, 388

kinetic 147, 391

Korea xxviii, 168, 394, 396

Kosovo 54, 338, 390, 402, 466, 504, 523

Kurdistan Workers’ Party 72, 110

Kyrgyzstan 84, 256, 294

560

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law enforcement xxiv, 44–45, 49–50, 54, 145, 150, 162, 166, 175, 183, 194–197, 201

381, 415, 420, 422, 429, 443, 446, 452, 461, 463, 535, 548

law of armed conflict xxiii, xxvi–xxviii, 54, 97, 144, 146, 148, 182–183, 187, 190, 19

217, 220, 233, 343, 345, 347–353, 371, 389, 402, 412, 417–422, 425, 430, 487–

507, 510–511, 516–517, 519–520, 528–532, 535–536, 544

law of war xxiii, xxv–xxviii, 54–55, 73, 158, 166–167, 178, 182, 184, 186, 188–190, 

218, 220, 222, 224–228, 232–235, 243, 247, 249–251, 260–263, 265–268, 270–

276, 279–281, 283–286, 291–298, 303, 371–375, 377–378, 380–381, 389, 398, 

409, 425, 428–429, 459, 514, 538, 543, 546–548, 550–551

lawful combatant 53, 149, 159, 224–226, 231–232, 243, 263, 265–266, 269, 277–278

298, 318, 345–346, 362, 374

lawful target 147, 228, 311, 314, 327

laws and customs of war 188, 230, 264–265, 268–269, 274, 298–299, 361, 366

lead nation 393, 470

Lebanon 13, 16, 126, 138, 183–184, 189, 195–196, 198, 212, 214–216, 339, 519, 521

Legality of the Threat or Use of Nuclear Weapons Advisory Opinion 50, 56, 106, 138

463, 512–513, 515, 530–531, 537

legitimacy 16, 20, 31–32, 90, 213, 216, 218, 228, 270, 310, 312, 329–330, 353, 364, 3

396, 398, 416, 425, 468, 478, 508, 521, 524

lethal force 227, 395, 447, 451, 496, 535

lex specialis 348, 436, 444, 449–452, 454, 462–463, 497–498, 526, 531–532, 538

liberty 349, 357–358, 360, 362–365, 368–369, 373, 380, 432, 444, 448, 453, 461

Lieber, Francis 263–264, 269, 273, 298, 302, 550

likely and identifiable threat 315–320, 325, 328, 335–336

Loizidou v. Turkey 456, 458, 501, 522

Loya Jirga 87–88, 229, 308, 349, 360, 433

M

Malaya 20, 24–25, 41, 71, 291, 298, 388

Martens Clause 265–266, 302

McCain, John 34, 93

Mehsud, Baitullah 71, 113, 135

Military and Paramilitary Activities in and Against Nicaragua case 47–50, 56, 74, 12

132, 137–138, 368, 400, 409, 419–420, 429, 521

military doctrine xxiv, 4, 17–18, 22, 291, 309, 388, 412–414, 416–417, 423, 430, 467

military necessity 159, 187, 199–200, 203, 206, 218, 225, 278, 318–319, 326, 328–32

353, 440, 530

military objective 5, 69, 97, 143, 202–204, 206, 261, 283, 294, 306, 308, 311, 323, 33

military operations xix, xxi, xxiv–xxv, xxvii, 17–18, 29, 110, 114–116, 118, 134, 161

184, 187–188, 190, 194–211, 213–217, 221, 248–249, 261–262, 264, 273, 275, 2

302, 317, 323, 328, 333–334, 344–345, 359–360, 380, 388–389, 391, 395, 400, 4

416–417, 420, 427, 429, 465–469, 471, 479, 485, 495, 499, 507, 509–511, 526, 5

military operations other than war 389, 416, 427

561

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, , , , , , , , , , , , 

290, 293, 388, 392, 405, 417

militia group 192–193, 217

mujahidin 6–7, 61, 253–254, 271, 289–290, 315

Munaf v. Green 533, 538

Musharraf, Pervez 72, 84

N

Najibullah, Mohammed 61, 69, 81, 103, 223, 254, 291

narco-State 80, 96

narcotics 80, 87, 96, 100, 236, 309

nation building 87, 99–100

NATO xxi, xxiii–xxv, 4, 9–10, 17–22, 24, 30, 32–33, 38–39, 44, 46, 55, 71, 80, 85, 90

102, 105–106, 122, 126, 135, 137, 142, 145–148, 151–152, 235–237, 244, 248, 

324, 326–327, 334, 345, 366, 392, 395–397, 400, 403–404, 407–409, 413, 423, 

502, 504, 512, 527, 534–536, 539, 550

necessity 127–128, 130–131, 133, 139, 159, 187, 189–190, 197, 199–200, 203, 206, 2

225, 250, 254, 275, 278, 302, 315, 318–319, 325–329, 331, 336, 346, 351, 353, 

429, 440, 452, 470, 494, 517–518, 520, 530

Netherlands 93, 114, 265, 287, 461, 512, 516

noncombatants 234, 243, 298, 348, 512

non-derogable right 449, 492–494, 518

non-governmental organizations 29, 69, 88, 100, 259, 323, 329, 468, 475, 481, 545

non-international armed conflict xxv–xxvii, 9, 11, 43–44, 51–53, 55, 145, 147, 150, 

182, 185, 189–190, 193, 212–213, 221, 231, 238, 241, 278, 300, 308, 330, 336, 

358, 360, 363–365, 367–368, 371–372, 374, 378–379, 389, 398, 400, 404, 410, 

433, 440–445, 447, 453–454, 459–460, 463, 486, 490, 494–499, 502–503, 505–

519–520, 528–529, 532, 538

See also armed conflict not of an international character

non-refoulement 405, 528, 532–534

non-State actor xxiv–xxv, 45–46, 83, 85, 98–99, 109, 118, 123, 125–127, 132–133, 1

271, 276, 388, 417, 420, 433, 444, 454, 463, 533, 549

non-State armed groups 186, 358, 360, 454, 499

Northern Alliance xxiii, 8–10, 14, 18, 32, 37, 51, 65, 82–84, 86–87, 145, 151, 161, 17

222, 227, 255–256, 277, 283–284, 289, 294–295, 303, 305, 367, 486

Northern Ireland 26, 151, 164, 405, 407, 495, 508, 516, 520

O

Obama, Barack xxviii, 34, 36, 72, 75, 93, 98, 343, 368, 379, 525

occupation xxiii, 11, 30, 52–53, 61–62, 67, 81, 87, 94, 162, 219, 229, 231, 247, 253–

265–267, 271, 275, 290, 296, 298–299, 305, 399–400, 402–403, 415, 417, 421, 

466, 494, 501–502, 510, 521, 524, 530, 538

occupying power 230, 260, 296, 402, 416, 421–422, 433, 437, 457, 500, 521

562

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Oil Platforms case 50, 56, 127–128, 138

Omar, Mohammed 71, 254–255, 257–259, 294–296, 533

Operation Allied Force 323, 327

Operation Anaconda 85, 295, 320, 334, 336

Operation Enduring Freedom xxv, 19, 30, 74, 86, 122, 143–146, 151, 182, 196, 220, 

227, 292, 297, 307, 333, 336, 344–347, 366, 393, 395, 409, 480–482, 527

Operation Iraqi Freedom 291, 315–316, 325, 333, 335, 337–338, 545

Operation Just Cause 217, 279, 305

organized armed groups 164, 189, 214, 269, 273, 311, 314, 317, 330, 398, 400, 419, 

P

Pakistan xxiii–xxv, 4, 7–9, 11–13, 28–29, 32–38, 42, 51–52, 61, 68, 70–72, 74, 79–82

92, 95–99, 101, 103–107, 109–111, 113–125, 128–136, 139, 143, 226, 228–229

241, 245, 253–258, 272–275, 290–295, 297, 308, 360, 367, 521

Palestinian 46, 56, 99, 106, 138, 241, 367, 400, 419, 428–429, 456, 462, 492, 513, 51

521, 531, 537, 547

paramilitary 47–48, 114, 134, 222, 237, 309, 524

partisans 263, 269

Pashtun 6–12, 35, 61, 84, 88, 111, 113–115, 252, 254, 258, 261, 290–292, 295, 308

peace enforcement 83, 92, 389, 415–416

peace operations 390, 414, 423, 426

peacebuilding 4, 21, 391

peacekeeping 13, 20–21, 87, 91–92, 102, 199, 207, 217, 389–390, 394–395, 398, 407

416, 420, 423–424, 429, 438, 458

People’s Democratic Party of Afghanistan 61, 69, 253–254, 290, 295–296

perfidy 236, 262, 277–278, 303–304

Powell, Colin 86, 104, 174, 179, 239, 279, 304–305

precautions in attack 313, 321, 323, 325, 329, 337, 359, 404, 409

Predator 116, 118, 120, 124, 132–133, 135, 183, 227–229, 240–241

prisoner of war xxvi, 53, 149, 167, 171–173, 176, 191–192, 217, 220, 222–226, 231–

239, 249–251, 261–265, 267–273, 275–285, 298–302, 304–305, 345–346, 358

367, 402, 443, 445, 453–454, 460, 527

private armed groups 268, 270, 272–273, 281, 284–285, 300

proportionality 127–131, 133, 147, 200, 206, 312, 321–323, 329, 359, 401, 409, 440, 

531

protected persons 230–232, 242, 383, 515

Provincial Reconstruction Teams 20–21, 396, 408, 470, 478, 481

R

Rashid, Abdul 9, 37–38, 41, 221, 288–294, 303

refugees 4, 11, 28, 32, 34, 42, 390, 405

regime change 31, 61–62, 65, 68–70, 73, 86, 219, 395

563

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Responsibility of States for Internationally Wrongful Acts 47, 56, 136, 148, 152, 223

right to life 436–437, 446–447, 449, 452, 457, 459, 503, 507, 531, 538

rule of law xxvii, 17, 176, 310, 338, 352–353, 411, 413, 417, 421, 425, 430, 465–481, 

510

Rule of Law Handbook 424, 430, 466, 468–469, 473–474, 476–478, 480–481

rule of law operations xxvii, 430, 466, 469–474, 476–477, 479

rules of engagement 116, 136, 143, 211, 214, 314–316, 321–322, 324, 326, 328–

338, 389

See also Standing Rules of Engagement

Russia 5, 11, 81–82, 104, 160, 213, 219, 228, 252, 256, 290, 294, 296, 298, 326, 410, 

497, 501–502, 517, 522

Rwanda 34, 230, 242, 514, 521, 551

S

Saudi Arabia 61, 255–258, 270, 273–275, 294, 297, 300, 367

Second World War 187–188, 230, 268, 274–275, 299, 301, 436, 488

Secretary of State 49, 86, 159, 174, 176, 224, 278–279, 381, 402, 410, 438, 457, 471, 

522–523, 539

See also Department of State

self-defense xxv, 15, 45–46, 49–51, 64–65, 67–68, 71–72, 83, 85–86, 92, 99, 103–104

118, 121, 123–127, 129–133, 138–139, 142, 145–146, 150–152, 161–162, 241, 

325–327, 334, 389, 393, 401, 406, 422, 429, 446, 505, 527, 535

See also collective self-defense

Sharif, Nawaz 15, 84, 119, 221–222, 227, 255–256, 289, 293–294

Sierra Leone 397–398, 408

Somalia 10, 34, 54, 137, 168, 196, 217, 252, 277, 294, 304, 352, 387–390, 405, 427, 5

South Vietnam 24–26, 41, 243

Soviet Union 6, 13, 33, 61–62, 69, 81, 219, 266, 289, 305, 366

Spain 44, 93, 213, 512

Special Forces 65, 221, 249, 257, 275–277, 283, 286–287, 289, 296, 303, 305, 335

special operations xxvi, 79, 84, 95, 98–101, 116–117, 119, 122, 132, 136, 249–250, 2

302, 335

stability operations xxiii, xxvii, 389–392, 394–398, 400–403, 405, 408, 412–418, 420

427, 454, 467–469, 473, 480–481

See also FM 3-07

Standing Rules of Engagement 214, 326, 335

See also rules of engagement

State Department

See Department of State and Secretary of State

Supreme Court 44, 90–91, 184, 198, 224–225, 278, 282, 304, 330, 336, 343, 346, 350

376–378, 400, 409, 462, 526–528, 533, 550, 552

Syria 127, 138, 519, 521, 549

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Tadic case 48–49, 56, 185, 187–190, 212, 214, 216–217, 330–331, 367, 400, 408–4

429

Taft, William H. IV 169, 172–173, 176, 178–179, 215, 239, 304, 354

Taliban xxiii–xxiv, xxvi, 6–9, 11–12, 14–19, 25, 28–31, 33–39, 42, 50–53, 61–63, 65

74, 79–80, 82–88, 90, 92, 95–106, 109, 113–121, 123–125, 130, 132, 134–136, 

146, 149, 152, 157–159, 161, 166–179, 182–183, 190–191, 193–194, 196, 210, 

225, 227, 229, 231, 236–240, 245, 249–251, 253–261, 270–275, 277–299, 301, 

308–309, 313, 315–317, 322, 324, 330, 344–349, 351, 354, 357–364, 366–368, 

393, 398–402, 404, 409, 432–433, 443, 451–452, 460, 486, 525–528, 534–535, 

Tanzania 82, 123, 142–143, 166, 257

Taraki, Nur Mohammed 61, 69, 81

targeted killing xxv, 181, 220, 227–229, 240–241, 335, 459, 463

targeting xxvi–xxvii, 31, 49, 114, 128, 131, 146–147, 191, 199, 203, 228–229, 241, 3

320–324, 326, 328–330, 332–334, 336–338, 355, 381, 389, 404, 410, 422, 515, 

territorial limitations 526, 529, 538

terrorism xxiii–xxiv, 14, 16, 19, 36, 39, 43–46, 53–54, 64–65, 74, 87, 94, 102, 110, 1

129, 133, 138, 144–145, 152, 158–160, 162, 165–166, 173, 175–176, 194–195, 

208, 211, 215, 220, 224, 226, 228, 230, 233, 236–237, 313, 330, 358, 364–365, 

426, 439, 524, 547–548

terrorist xxi, xxiii–xxiv, 9, 12, 15–16, 22, 24, 29, 32, 35, 43–49, 53–54, 62–65, 68, 71

90, 93–95, 99–100, 104, 115, 121, 124, 126, 136, 138–139, 142–145, 158, 160–

181, 190, 194–197, 202–206, 210–211, 215, 218, 220–221, 224–225, 228, 233, 

248–249, 269, 271, 280, 282, 285, 307–308, 315, 330, 351, 358, 375, 381, 420, 

528, 551

transnational armed conflict xxv, 182, 184–185, 189–191, 206, 212

transnational terrorist 169, 194, 197, 205–206, 248–249, 285, 330

treatment standards xxvi, 343, 345–347, 353

Turkey 49, 110, 126, 138, 256, 290, 294, 435, 456–458, 462, 495, 501–502, 508, 516–

520, 522, 538–539

Turku Declaration 374, 380

U

UN Assistance Mission in Afghanistan 16–17, 31, 38, 89, 91, 137

UN Charter

Article 2(4) 45, 117–118, 120, 123, 125, 136

Article 42 394, 427

Article 51 xxiv, 45–46, 64, 72, 83, 85–86, 98–99, 104, 106, 123–127, 138, 141, 22

322, 334, 393, 419, 492, 500

Chapter VII 52, 66, 83, 121–122, 133, 345, 393–394, 396, 406, 410, 504, 506

UN Commission on Human Rights 374, 382, 456, 460, 490, 516

See also UN Human Rights Council

UN General Assembly 13–14, 16, 39, 47, 61–62, 126, 257, 331, 490, 492

565

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506–507, 514–521, 523, 529–530, 537

UN Human Rights Council 215, 462, 490, 512

See also UN Commission on Human Rights

UN Security Council xxviii, 13–14, 16–17, 20, 31–33, 37–39, 45–46, 50–51, 55, 60, 

83, 85–87, 91–92, 94, 103, 118, 120–124, 126, 133–134, 137, 139, 142, 144–14

152, 161, 170, 177, 185, 221, 242, 248, 257, 294, 332, 345, 365, 393–397, 403–

408, 410, 433, 438–439, 458, 466, 480, 486, 488, 490, 492, 504–507, 522–523, 

539, 549, 552

UN Security Council Resolutions

Res. 678 86, 103, 517

Res. 1214 62–63, 74, 170, 294

Res. 1333 63, 74, 152, 294–295

Res. 1368 15, 39, 46, 55, 63, 74, 83, 85, 103, 137, 151, 257, 295

Res. 1373 16, 39, 45–46, 55, 64, 74, 83, 85, 103, 137, 151

Res. 1378 64, 74, 87, 104

Res. 1383 62, 65, 74

Res. 1386 37, 51, 57, 65, 74, 87, 92, 105, 121, 137, 144, 152–153, 221, 237, 332, 3

369, 407, 505, 520

Res. 1510 38, 137, 146, 152, 332, 407

Res. 1608 105

Res. 1806 91, 480

unified armed conflict 190, 210

uniform 6, 132, 147, 207, 223–225, 249, 258, 264, 274, 276–277, 280–281, 283, 297

305, 313, 352, 361, 380

unilateral use of force 65, 129–130

United Arab Emirates 61, 256–258, 274–275, 293–294, 297

United Kingdom 9, 21–23, 44, 65, 73, 90, 130, 141–145, 151, 162, 165, 200, 228–22

294, 336, 387–389, 391–392, 397–399, 402–407, 410, 436–437, 457, 461–462, 

494, 512, 517–518, 520, 524, 545, 551–552

unlawful combatants 53, 149, 159, 224, 226, 231–232, 265, 278, 345–346, 374

unlawful confinement 371–374, 378–380, 444

unmanned aerial vehicles 227, 229, 240, 319, 321, 324

unprivileged belligerent 176, 224, 231, 270, 298

unprivileged combatant 266, 298, 532

US Central Command 315–317, 321, 332–333, 335, 338

use of force xix, 6, 12, 15, 46, 50, 65, 70, 83, 86, 92, 98–99, 117, 119, 123, 127–130, 

147, 200, 202, 204, 206, 217, 297, 307, 309, 326, 334–335, 357, 389, 392, 394–

401, 405–406, 419–420, 422, 429, 439–440, 451, 476, 496, 525–526

USS Cole 123, 142, 227

Uzbekistan 11, 84, 104, 220, 256, 294, 308

V

Vienna Convention on the Law of Treaties 168, 178, 336, 516

Vietnam 19, 24–27, 41, 54, 98, 168, 221, 240, 243, 291, 304, 354, 547, 550–551

566

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W

Wall Advisory Opinion xxiv, 46, 50, 56, 99, 105–106, 125, 138, 288–290, 367, 376, 

419, 428–429, 456, 462, 492, 500, 513, 515–516, 519, 521, 530–531, 537–538

war crimes xxv, 148, 185, 233, 362–364, 372

War Crimes Act 167–169, 172, 175

War on Terror xxiii, xxv, 12, 33, 40, 43–44, 55, 57, 136, 138, 157, 161, 165–166, 173

226, 233, 238, 241, 287, 302, 330, 378, 431, 433, 456, 462, 524

See also Global War on Terror

Waziristan 111, 117, 289

Y

Yoo, John 165, 167, 169, 172–173, 177–179, 215, 239, 304

Yoo/Delahunty memorandum 169, 172–173, 178–179

Z

Zahir Shah, Mohammad 60, 81, 88, 104, 253

Zardari, Asif Ali 79, 119, 136

567

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