Afghanistan, Pakistan, and the modern challenges to use of force law.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 1:00 p.m., Thursday, March 25, by its moderator, Mary Ellen O'Connell, of the University of Notre Dame Law School, who introduced the panelists: Paul Pillar, of the Center for Peace and Security at Georgetown University; Hina Shamsi, of New York University Law School; John Radsan, of William Mitchell College of Law; and Ganesh Sitaraman, of Harvard Law School.


Good afternoon, and welcome to our panel on Afghanistan, Pakistan, and challenges with respect to international law and the use of force. As this audience well knows, Afghanistan and Pakistan present complex situations where application of such principles as the right to kill without warning, and the right to detain without trial, require very careful analysis of both facts and law. We have an excellent group of speakers to present on this important topic, which, in my view, is as important as any topic currently on the international law agenda.

I'm going to introduce each of the speakers briefly and give a statement as to his or her general topic. I've asked each speaker to take no more than 12 minutes for his or her primary remarks. That will allow time for a brief exchange among the speakers before we turn it over to you, and we take your questions from the floor.

So our first speaker is Professor Paul Pillar. He is currently Director of Graduate Studies at the Center for Peace and Security at Georgetown University. In 2005 Professor Pillar retired from a 28-year career in the United States intelligence community. His last post was as National Intelligence Officer for Near East and South Asia. Professor Pillar is a retired United States Army Reserve Officer. He served a tour of duty in Vietnam from 1971 to 1973. He will address current U.S. policy, strategy, and challenges in Afghanistan and Pakistan.

Next, we will have Hina Shamsi. Ms. Shamsi is the Senior Advisor to the Project on Extrajudicial Execution at New York University Law School where she works with Philip Alston, the UN Special Rapporteur on extrajudicial executions. She has previously worked as a staff attorney at the ACLU's National Security Project. Ms. Shamsi will address international humanitarian law issues that have arisen in connection with military operations in the region, especially with respect to the use of combat drones.

Following Ms. Shamsi will be Professor John Radsan of William Mitchell College of Law in Minnesota. Before joining the Mitchell faculty, he was an assistant general counsel at the CIA from 2002 until 2004. He has also served as a lawyer in the federal government for over six years and was also in private practice. Professor Radsan will address CIA operations in the region, particularly with respect to U.S. law, but pointing out where there may be gaps between United States law and international law governing operations.

Finally, we will have a new voice in Ganesh Sitaraman. Professor Sitaraman is the Public Law Fellow and Lecturer in Law at Harvard Law School. He was a Research Fellow at the Counter-Insurgency Training Center in Kabul in the summer of 2009. He is currently working on a book on law and counter-insurgency. Professor Sitaraman will assess strengths and weaknesses in current international humanitarian law from the perspective of U.S. strategy. So, with that brief introduction, I'll turn over to our first speaker, Paul Pillar.

* University of Notre Dame Law School.


Before I get to my assigned topic of current U.S. policy strategy and challenges, I'd like to make one preliminary observation as someone coming out of the counterterrorist community and addressing people who have been immersed much more on issues of international humanitarian law, and that is some of the discourse that comes from people addressing issues of terrorism and counterterrorism is frankly not very helpful to those of you who try to tackle issues of international humanitarian law. Some of that discourse does a disservice, because it obfuscates, semantically and logically, what we're up to here.

I'm referring mainly to that feckless issue of crime versus war, you know, what is really terrorism. We hear a lot of that, and it's really just kind of code for expressing personal preferences about what particular policy instruments we ought to use, if it's not an outright effort to score political points. So, on behalf of the counterterrorist community, I apologize for that kind of obfuscation. I try to refrain from it myself, and with that out of the way, I'd like to discuss what the U.S. policy and strategy is.

The principal U.S. military effort in the region we're talking about is a counter-insurgency in Afghanistan that is a direct legacy of the U.S.-led intervention in late 2001 in an ongoing Afghan civil war. That war pitted an Islamist movement that we've come to know as the Taliban, which had swept to power over most of Afghanistan some seven years earlier against an opposition that was still holding out in the northern part of the country known as the Northern Alliance.

The reason for the intervention? It was a direct consequence of 9/11 and the well-known backdrop and history of Al Qaeda responsible for that terrorist horror, having had a substantial presence in Afghanistan and close alliance with the then-Afghan Taliban regime.

The U.S. intervention quickly succeeded in tipping the military balance against the Taliban and in favor of the Northern Alliance. Emanating from that was a political process, particularly a conference in Bonn that entailed drawing up a new Afghan constitution and installing as president Hamid Karzai, who is still there today.

Since then, the Karzai government and its supporters, including the United States, have faced the immense challenge of dealing economically and politically with a country that had been torn apart by basically three decades of civil war, along with foreign intervention--most notably the decade the Soviets were there--and trying to establish stability in a country in which no central government had really ever controlled the whole territory. Over these last few years, especially the last three or four years, what we have seen is a resurgence of the Taliban and a significant upsurge in violence directed against the Afghan government.

The Obama Administration's policy and strategy after a second and very lengthy review last year is as follows. The United States will pursue and is pursuing a counter-insurgency in Afghanistan using military force to try to shore up the authority of the Karzai government and stabilize most, though not all, of Afghanistan. This involves a surge of U.S. troops as part of a larger NATO command, a surge that is ongoing as we speak, coupled with a promise by the President that in the middle of next year, just about 16 months from now, we won't be ramping up anymore, we will start ramping down, and then a withdrawal will begin. Although the President and Secretary of Defense have been quite careful not to promise anything with regard to how long that withdrawal would take or how fast it would go.

The basic military strategy is classic counter-insurgency, straight out of General Petraeus's manual involving protecting the population as the primary military goal day-to-day, and the hope is that through these military operations by the NATO force, the balance on the battlefield will tip once again against the Taliban and in favor of the central government.

The other side of this, besides the counter-insurgency operations, is trying to build up an Afghan security force, including both the police and the army.

The question of negotiating with the Taliban has come up repeatedly, and here I would just summarize by saying the United States is so far not as keen on reconciliation with Taliban elements as either the Karzai government is or as some of our other allies are, like the British. The U.S. position is we need to do more fighting first to tip that military balance more in our favor and against that of the Taliban.

The declared core U.S. objective in all of this, according to the President, is to prevent Al Qaeda, the perpetrator of 9/11, from reestablishing a haven in Afghanistan, and this, of course, goes back to the origins of the whole intervention back in November of 2001. One little twist to this is that Al Qaeda isn't in Afghanistan except for a few of its operatives, according to General Jones, who has spoken of this. So NATO, led by the United States, is fighting a sort of surrogate enemy in the form of the Taliban or forces that we generally place under the Taliban label.

And the enemy, even though we use that one label, is by no means unified. First of all, you've got other elements that are part of the fight and against which our forces are fighting that don't even call themselves Taliban. This includes the group led by Gulbuddin Hekmatyar, one of the old warlords who led the fight against the Soviets and who just met the other day with Karzai to explore peace possibilities, and a network led by the Haqqani family, which has been around a long time, too, and of all these elements, probably has had the closest ties to Al Qaeda, and it operates on both sides of the Afghan-Pakistani border.

And then the Taliban itself isn't unified either. We hear most often about the so-called Quetta-Shura--Quetta meaning the city in Pakistan where some of the senior leaders, like Mullah Omar, who is the top guy in their former regime, are holed up--but the Quetta-Shura doesn't even speak for all of the Taliban proper, let alone Hekmatyar and Haqqani.

It's been a very disunited group, which contains a lot of elements that are barely distinguishable from what are better described simply as angry Afghan civilians, bearing in mind the ubiquity of firearms in Afghanistan and the ease with which Afghans pick up those firearms and act out whatever they need to act out when they're angry.

Some of those who...

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