Afghanistan and the Nature of Conflict

• Author: Charles Garraway
• Position: Visiting Professor, King's College London; Associate Fellow, Chatham House; and Visiting Fellow, Human Rights Centre, University of Essex
• Pages: 157-180

VII

Afghanistan and the Nature of Conflict

Charles Garraway*

Introduction

The story is told of atraveler in the west of Ireland. Thoroughly lost, he

stopped beside afield and asked the farmhand working there how to get to

Limerick. The answer was somewhat disconcerting: "Well, if Iwas you, sir, I

wouldn't start from here!" There have been times over the last seven years when

that phrase has come to mind. Decisions have been made and consequences have

followed—none more so perhaps than in the relationship between the "war on

terror" and the law of armed conflict/laws of war. Much of this uncertainty arose

out of the initial conflict in Afghanistan in 2001. While it may not be possible to

change the start point, it may help to look back and try to ascertain why we are

where we are. Perhaps then, we will be in abetter position to plan that route to

Limerick.

The End of the Beginning

Our story has to start somewhere and where better than in the White House and

with apresidential decision. On February 7, 2002, President Bush issued his mem-

orandum on the subject of humane treatment of al Qaeda and Taliban detainees. 1

In paragraph 1, he stated:

*Visiting Professor, King's College London; Associate Fellow, Chatham House; and Visiting

Fellow, Human Rights Centre, University of Essex.

Afghanistan and the Nature ofConflict

Our recent extensive discussions regarding the status ofal Qaeda and Taliban detainees

confirm that the application of Geneva Convention Relative to the Treatment of

Prisoners of War of August 12, 1949, (Geneva) to the conflict with al Qaeda and the

Taliban involves complex legal questions. By its terms, Geneva applies to conflicts

involving "High Contracting Parties," which can only be states. Moreover, it assumes

the existence of "regular" armed forces fighting on behalf of states. However, the war

against terrorism ushers in anew paradigm, one in which groups with broad,

international reach commit horrific acts against innocent civilians, sometimes with the

direct support of states. Our nation recognizes that this new paradigm -ushered in not

by us, but by terrorists -requires new thinking in the law of war, but thinking that

should nevertheless be consistent with the principles of Geneva.

Although this memorandum was not released to the public until some time

later, its effect upon the debates on both the classification of conflicts and the appli-

cation of the laws of war has been immense. No study of Afghanistan, or of any

other conflict since 2002 in which the United States has been involved, can take

place without considering the effect of this memorandum. Indeed so pivotal has it

become to many ofthe arguments that now rage over the US position on law ofwar

issues that it should be read in full:

SUBJECT: Humane Treatment of Taliban and al Qaeda Detainees

1. Our recent extensive discussions regarding the status of al Qaeda and Taliban

detainees confirm that the application of Geneva Convention Relative to the

Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al

Qaeda and the Taliban involves complex legal questions. By its terms, Geneva applies

to conflicts involving "High Contracting Parties," which can only be states. Moreover,

it assumes the existence of "regular" armed forces fighting on behalf of states.

However, the war against terrorism ushers in anew paradigm, one in which groups

with broad, international reach commit horrific acts against innocent civilians,

sometimes with the direct support of states. Our nation recognizes that this new

paradigm -ushered in not by us, but by terrorists -requires new thinking in the law

of war, but thinking that should nevertheless be consistent with the principles of

Geneva.

2. Pursuant to my authority as commander in chief and chief executive of the

United States, and relying on the opinion of the Department of Justice dated January

22, 2002, and on the legal opinion rendered by the attorney general in his letter of

February 1, 2002, 1hereby determine as follows:

a. Iaccept the legal conclusion of the Department of Justice and determine that

none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan

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