The Nature and Scope of the War in Afghanistan

by Jens David Ohlin

Two recent court filings bring to light important questions about the scope and nature of the armed conflict in Afghanistan. Who would have thought that so many years after 9/11 we would still be asking important questions about the nature of the hostilities there.

First, on May 20, 1995, counsel for detainee Al Warafi filed a reply brief in his habeas litigation in the D.C. district court. Warafi argues that his law of war detention is illegal under international law because the war in Afghanistan is over. Under applicable international law, detainees held pursuant to the law of armed conflict should be repatriated upon the conclusion of the armed conflict that served as the factual and legal predicate for their detention. As evidence that the war in Afghanistan is over, Warafi points — as he has in previous filings — to declarations made by President Obama that the war in Afghanistan is over. This is a clever argument because it appeals to a pre-existing tenet of the separation-of-powers jurisprudence that federal courts, and especially the D.C. Circuit, have respected before: that the judiciary should defer to executive branch judgments about matters pertaining to national security and armed conflict. If the President believes that the war in Afghanistan is over, why should a federal judge decide differently? See Ludecke v. Watkins (1948).

In the government’s opposition brief filed in April, the Justice Department makes a distinction between the existence of an armed conflict and the existence of ongoing hostilities. If I understand the government’s position correctly, the Justice Department is arguing that irrespective of what President Obama has said publicly about the end of the “war” in Afghanistan, executive branch officials have consistently noted that there are ongoing hostilities in Afghanistan and that U.S. DoD personnel continue to be engaged in military operations there. (Indeed, the Defense Department General Counsel gave a major policy address at the American Society of International Law Annual Meeting in April 2015, which many OJ readers attended, where he specifically noted that the U.S. military continues to operate in Afghanistan in offensive military operations).

This argument can be interpreted in multiple ways. First, it could mean that the foundation for law-of-war detention is not the existence of a state of armed conflict between the parties but rather the existence of ongoing hostilities; these two factors usually coincide but at their margins they might diverge, especially before and after an armed conflict. Second, it could mean that the President was talking about war in a political or even constitutional sense, but was not making a statement regarding the formal existence of an armed conflict in the sense that it is meaningful for IHL lawyers.

In his reply brief, Al Warafi argues that “war”, “combat mission”, and “hostilities” are co-extensive terms, so that the President’s announcement of the end of the combat mission is logically the same as announcing the end of the armed conflict in Afghanistan. Also, Al Warafi argues that the ASIL policy address by DoD is irrelevant to the analysis because it came after Al Warafi filed his petition. Indeed, the reply brief refers to the ASIL speech as “self-serving” — implying that the DoD was motivated to make those statements by a legal need to justify Al Warafi’s continued detention (and any others who are similarly situated).

Now for the second litigation. Hamidullin was a Taliban commander in Afghanistan who engaged in military action against US forces. He was captured, brought to the US, and then indicted in federal court in Virginia for providing material support to terrorism and other charges. On May 4, 2015, he filed a motion to have the indictment dismissed, arguing among other things that he was protected by combatant immunity while engaged in hostilities in Afghanistan. His motion will require the court to pass judgment on the nature of the armed conflict in Afghanistan at the time he engaged in his acts of belligerency (2009).

Clearly, the armed conflict between the US and Afghanistan began as an international armed conflict (IAC). Everyone agrees on that. However, I think the US government position is that once the Taliban were defeated and removed from power, the conflict transformed into a non-international armed conflict (NIAC) between the new government of Afghanistan and the Taliban acting as a non-state actor. The U.S. is a party to this conflict as a co-belligerent fighting alongside the “new” government of Afghanistan, helping them to fight their NIAC against the Taliban.

However, Hamidullin has an innovative argument. He contends that the Geneva Conventions extend combatant immunity to deposed government forces who were protected by the privilege before they were removed from power. Here is the bulk of the argument:

Given the ongoing protracted conflict in Afghanistan, the displacement of the Taliban government in December 2001 did not fundamentally alter the fact that the conflict began as an international armed conflict between two contracting parties to the Geneva Conventions. Indeed, article 4(A)(3) of the GPW was designed to encompass the armed forces of a government that was deposed by an invading state. Specifically, the language defines prisoners of war to include
“members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” GPW, art. 4(A)(3), 6 U.S.T. at 3320, 75 U.N.T.S. at 138. This provision was an innovation over previous international treaties, and was specifically drafted to cover “members of regular armed forces, like the Free French in the Second World War.” George Aldrich, Symposium: the Hague Peace Conferences: the Laws of War on Land, 94 Am. J. Int’l L. 42, 43 (Jan. 2000). In other words, the GPW was intentionally crafted to
include the armed forces of a deposed government as prisoners of war, even when a successor government (i.e., the Vichy regime or the government of Hamid Karzai) is recognized by the detaining power (i.e., Germany or the United States) as the legitimate government of the territory.

The Commentary to the GPW likewise explains that this provision “covers armed forces which continue to fight in a ‘national redoubt’, under the orders of an authority or Government which has its headquarters in that part of the country while the occupying authorities may have recognized a Government, which may or may not support them, in that part of the country occupied by their troops.” Commentary on III Geneva Convention at 63-64 (Jean Pictet ed. 1960). Article 4(A)(3) thus applies in the context of a “partial or total occupation of the territory of a High Contracting Party,” GPW art. 2, 6 U.S.T. at 3318, 75 U.N.T.S. at 136, a condition under which the provisions of the Third Geneva Convention “shall apply.” Id

Does this argument work? As readers now, I am very interested in arguments regarding the extension of the combatant’s privilege to non-state actors in some very limited circumstances. (In general, I believe that the current literature over-simplifies the dichotomy between IAC and NIAC and falsely assumes that the privilege is never available outside full-blown IACs). It seems intuitively correct to me that it would be absurd for IHL to withdraw the privilege of combatancy the minute the government forces are forced from power and are rebranded–by their opponents–as rebels and non-state actors. On the other hand, does this grace period last forever? Say what you will about this argument, but the Taliban were forced from power a long time ago in Afghanistan.

I would note that the Pictet Commentary also includes the following passages, not quoted in the brief above:

It is not expressly stated that this Government or authority must, as a minimum requirement, be recognized by third States, but this condition is consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle. It is also necessary that this authority, which is not recognized by the adversary, should either consider itself as representing one of the High Contracting Parties, or declare that it accepts the obligations stipulated in the Convention and wishes to apply them.

This latter paragraph raises two important questions that I direct to OJ readers. First, has the Taliban formally declared that it accepts the obligations of the Geneva Convention and wishes to apply them? Second, and more importantly, is the Taliban recognized as the legitimate authority of Afghanistan by third parties? I honestly do not know the answer to that question and would like to hear from readers on this point. I think the Pictet Commentary is suggesting here that this Geneva provision should not apply in the case of non-recognized forces whose lack of recognition flows not just from their adversary in the armed conflict but is, rather, universal non-recognition from everyone. This would seem to be an important qualification to prevent the provision from being manipulated.

http://opiniojuris.org/2015/05/28/the-nature-and-scope-of-the-war-in-afghanistan/

8 Responses

  1. My Affidavit was filed with the Defendant’s Reply

  2. Thanks for an interesting post . The post raises very complicated issues , and : ” one scroll , can’t have it all ….” But rather ,concerning the utmost issues sought by the author , it seems that the author , has ignored the ” montevideo convention on the rights and duties of states ” .That convention , provides the utmost concrete and directs definition of the state , most importantly , is the article which defines the state , as an autonomous creature , notwithstanding any recognition of it , by third parties , here I quote :


    ARTICLE 3

    The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
    The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. ”

    All that indeed , if objective factors are achieved , as dictates article 1 to the convention :


    ARTICLE 1

    The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.”

    And indeed , the international situation , is as such , that recognition of third parties , are not a factor in this regard . Iran for exe , doesn’t recognize at all the state of Israel , by no means ( beside the mere fact of it’s factual existence ) yet , It wouldn’t change of course , nothing at all , concerning the very judicial existence or legal existence of the Israeli state .

    Thanks

  3. One disadvantage of focusing on international recognition is that it divorces the characterization of the conflict from the facts on the ground. For example, after the Khmer Rouge were deposed by Vietnam, and the Hun Sen government was installed, should the nature of the conflict be dependent on whether other countries continue to recognize the democratic republic of Kampuchea, or based on the facts on the ground? In other words, whether the conflict is an IAC or an NIAC depends on whether pol pot gets a seat at the UN?
    The end of the IAC, it seems to me, should be made evident by the relatively stable and permanent end of hostilities. On the other hand, if the Khmer Rouge “continue to fight” against the invasion such that hostilities have not ended with any permanence or stability, IHL related to the IAC continues to apply. This would ensure that a uniform set of rules would apply to the conflict as a whole, until the end of hostilities. Otherwise, detainees who engaged in identical conduct in the same conflict fought at the same level of intensity face very different IHL based on when countries recognize Hun Sen.

    [full disclosure: I represent Hamidullin]

  4. Thanks for these reactions.

    I don’t think the issue here is recognition of the state. What is at issue is recognition of the government.

    Also, the PIctet view (if I read it correctly) is not that the authority must be universally or widely recognized, but simply that it must be recognized by someone other than the belligerents themselves.

  5. Jens David Ohlin ,

    Thanks for the comment. You could clearly understand from Article 1, what are the features, and definition of a state, and, among others:

    government and capacity to inter into relations. Means :

    state and government are one , come as a whole ( otherwise , how to engage in relations with other states ? ) hence :

    If existence of a state , doesn’t depend on third party recognition of it , then :

    As well recognition of the government of it , Means : the last one , has also :

    autonomous existence . Thanks

  6. Indeed, the cases you present contain some very interesting questions that are worth discussing in more depth, which I hope people will do.
    As to your two questions, Jens: The Islamic Emirate of Afghanistan (IEA), i.e. the Taliban government established in 1996, was at that time only recognised by three countries, namely Pakistan, Saudi Arabia and the United Arab Emirates. All of these have recognised the current government as legitimate even though they might still be providing tacit support to the Taleban. No State seems to consider them as a disposed or exiled government.
    As to their acceptance of the GC both their policies and actions indicate that they do not feel bound by widely accepted IHL. They have drafted their own body of rules governing their warfare – the so called Layha – which they claim to be based on Islamic law. However, Muhammad Munir in this article https://www.icrc.org/eng/assets/files/review/2011/irrc-881-munir.pdf argues that their principles not only violate international humanitarian law, but do not even confirm with Islamic law.
    Regarding the other discussions I believe we have to distinguish between two different issues: whether the conflict is international or non-international and which actors can be considered (non-) state actors. First of all, while there might be disagreement as to when the international conflict in Afghanistan ended, all serious commentators agree that it is now a NIAC in which international forces support the Afghan government in its internal conflict. The 2001 intervention was, of course, an international conflict. As a result, IHL in its entirety was applicable at least until end of Dec 2001, maximum until 2005, irrespectively of whether hostilities had ceased or still continued. To all subsequent conflict activities only those provisions governing NIACs would apply (subject to meeting the conditions for applicability of different norms like APII).
    In line with this I would also agree that members of the IEA were state actors when the international conflict began. However, they pretty quickly lost control over the state of Afghanistan. While the state continued to exist, it was not the Taleban who governed it. Subsequently, they lost both legitimacy and legality in claiming to be state actors. However, this issue is less important for the question of whether Art. 4 of the 3rd GC is applicable to Taleban fighters. What is much more important in this context is whether we are considering an IAC or a NIAC since the GC on PoW only applies to international armed conflict (Art. 2). I would be happy to argue that the conflict was of an international nature upon its commencement and that combatant immunity be granted to deposed government forces in that period. However, by 2009 – when Hamidullah was engaged in his acts of belligerency – it was clearly a NIAC. Furthemore, the case mentioned in the Pictet Commentary is also not applicable (not only because of incompatibility of the Layha with IHL) due to the non-international nature. If members of a former government are fighting members of the current government they can at most consider themselves representing the same High Contracting Party but not two different ones. Consequently, in my view, he cannot claim the applicability of GC III.
    This is an interesting article of the applicability of international law to armed non-state actors in Afghanistan (see footnote 24 for possible dates when the conflict turned non-international): https://www.icrc.org/eng/assets/files/review/2011/irrc-881-bellal-giacca-casey-maslen.pdf

  7. Patrick: you are ignoring the word “Power” in common article 2 and the customary laws of war, which are decidedly important for interpretation of a treaty, regarding a belligerency. States are not the only actors in the international legal process that have a government. The U.S. has been at war and applied the customary laws of war to Indian nations and tribes as well as to the CSA during the Civil War despite the lack of recognition of the CSA as a “state” — it was a belligerent. All of the customary laws of war were applied, including those regarding pow status and what is termed “combatant immunity” for lawful acts of war (see, e.g., 1863 Lieber Code). Today, it is well-known that the substantive provisions of the GCs reflect customary laws of war — and they are applicable as such regardless of any triggers in common art. 2 to any belligerency.
    Many recog. that members of armed forces of the Taliban should have pow status and the ICRC notified the U.S. on this point!

  8. Jens David: when you say “the Taliban were forced from power” you seem to be equating “the” government of a state with “power,” which one should avoid. Clearly the war in Afghanistan has lasted nearly 14 years — some say the longest war in U.S. history. The Taliban clearly posses “power” in Afghanistan.
    You also ask whether the Taliban are recognized as “the” legitimate authority in Afghanistan, but one should avoid the words “the” and “legitimate,” because they are not triggers or limitations with respect to application of the Geneva Conventions or customary laws of war that apply to a belligerency or other armed conflict of an international character.
    Clearly the continued war in Afghanistan is an armed conflict of an international character because of the types of outside states engaged in combat say, up to 2010 (beyond the time invovled in one of the cases) and fighting, targetings occur across the border in Pakistan. Taliban armed forces hid there, plan missions there, and travel from there to fight.

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