The Nature and Scope of the War in Afghanistan

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.