Combatants

AuthorW. Hays Parks
PositionSenior Associate Deputy General Counsel, International Affairs Division, Office of General Counsel, US Department of Defense
Pages247-306
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Combatants
W. Hays Parks*
Lawschool professors are known for devising complex, convoluted examina-
tion questions with factual situations at best remotely associated with reality.
The following, for afictitious law ofwar course final examination, might be viewed
as representative:
State Ais asovereign State with afunctioning government enjoying diplomatic
relations with other nations. It is amember ofthe United Nations in good standing and
since 1956 aState party to the 1949 Geneva Conventions. It is not aState party to the
1977 Protocols Iand II Additional to the 1949 Geneva Conventions.
State Binvades State A, displaces its government, and installs its own government.
States C, D, Eand others covertly provide funding and other support, including
weapons, to indigenous resistance movements within State A, eventually forcing State
Bto withdraw. Subsequently, the puppet government installed by State Bduring its
occupation is overthrown by atribal faction (Faction 1)covertly funded and supported
by States Cand D. Other tribes (Faction 2), with limited support from outside sources,
oppose rule by Faction 1. Neither replaces the previous government as the factions
compete for control. The situation deteriorates into acivil war.
*Senior Associate Deputy General Counsel, International Affairs Division, Office of General
Counsel, US Department of Defense. Statements contained herein are the personal views of the
author and may not necessarily reflect official positions of the Department of Defense or any
other agency of the United States government. ©2009 by W. Hays Parks.
II
Combatants
Factions 1and 2 are loose amalgamations of occasional if disparate indigenous tribal
alliances. Following long-standing custom within State A, tribal groups change sides,
and back again, as battle momentum shifts. Faction 1replaces personnel casualties and
tribal defections primarily from apool of volunteer and dragooned men of the same
tribe in neighboring State C, divided by an official but artificial border created by an
unsuccessful colonial power acentury earlier that bisects historic, common tribal
territory.
Given their heavy financial investment in support of Faction 1and, in the case of State
C, for geopolitical reasons, States Cand Ddecide they will recognize Faction 1as the
government of State Awhen Faction 1gains control of the entire country. Each
prematurely recognizes Faction 1when it captures Faction 2's major city. Faction l's
success is short-lived. It suffers asignificant military defeat, and retreats from Faction
2's major city and the territory Faction 2controls. Resistance to Faction 1continues
with varying levels of intensity throughout State Aexcept in its territory of origin, the
southern one-third of State A.
Neither State Cnor Dwithdraws its premature recognition of Faction 1.State Fjoins
States Cand Din recognizing Faction 1in order to continue bird-hunting privileges its
wealthy leaders enjoy in State A.
Faction 1aggressively but unsuccessfully solicits recognition as the government of
State Afrom the United Nations, the European Union or any of the remaining 190
nations. It hosts atransnational terrorist group, which trains and organizes foreign
nationals within State Abefore the group attacks two embassies of State Ein other
nations, killing 224 civilians and injuring more than 4,000. State Eresponds with
limited military action against training camps of the transnational terrorist group and
requests that Faction 1deliver to it the leader of the terrorist group. Faction 1offers to
do so if State Ewill recognize it. State Ewill not, and Faction 1does not. State Dsupport
of and relations with Faction 1deteriorate because of Faction l's hosting the leader of
the transnational terrorist group, aformer citizen of State D. Faction 1rapidly becomes
an international pariah. Faction l's power within the territory it controls declines.
Subsequently the transnational terrorist group hosted by Faction 1launches amajor
attack on the territory of State E, amember of the North Atlantic Treaty Organization
(NATO). Almost three thousand people, primarily civilians, representing more than
ninety nations are killed or missing and presumed dead. The United Nations Security
Council and NATO support military action against Faction 1and the transnational
terrorist group. State Ejoins with military forces of State Gand those of other
governments to engage in military operations in State Aagainst tribal forces aligned
with Faction 1and the transnational terrorist group. States C, Dand Fwithdraw their
recognitions of Faction 1.
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W. Hays Parks
Throughout the fighting, Faction 1tribes continue to operate in indigenous attire
under tribal command and control rather than as conventional, highly structured,
uniformed military forces. Members of the transnational terrorist group dress in all
black or indigenous attire. Some special operations forces (SOF) from States E, Gand
other nations allied with them working with Faction 2forces dress in Faction 2tribal
attire to avoid being targeted as high-value targets by Faction 1and its transnational
terrorist partners.
Tribal forces aligned with Faction 1abandon their informal alliance with it to join with
Faction 2and military forces of States Eand Gto defeat Faction 1. The leaders of
Faction 1and the transnational terrorist group flee into tribal territorial areas in State C.
Anew leader is identified to head anational, democratically elected government in
State A. His government gains recognition from the United Nations and national
governments (including States B, C, D, E, Fand G) as the government of State A.
In the process ofthe military operations against Faction 1and its transnational terrorist
partner by States Eand G, members ofFaction 1and the terrorist group are captured.
What is the law of war status of the members of Faction 1and transnational terrorist
group forces captured during operations by States Eand G? Had States Eand Gspecial
operations forces wearing Faction 2attire been captured by Faction 1forces or its
transnational terrorist partners, would they have been entitled to prisoner of war
status?
Before the al-Qaeda attack on the United States on September 11, 2001, and the
military response of the United States against the Taliban and al-Qaeda, the sce-
nario would have qualified as humorously improbable enough to have been alaw
school examination question. But it was precisely the situation faced by US and co-
alition military forces as they entered Afghanistan to commence offensive military
operations against the Taliban and al-Qaeda in October 2001.
Asimpleor perhaps better said, simplisticapproach would be to review the
four 1949 Geneva Conventions to determine their applicability to Taliban and al-
Qaeda fighters or to the SOF of States Eand Gwearing indigenous attire of the fac-
tion with which they were aligned. 1However, as the fictitious professor's examina-
tion question suggests, the situation is far from simple. More information is
necessary from factual, cultural and historical standpoints prior to determining the
legal statuses of the individuals in question.
In an essay published in 2003, this author concluded that the Taliban was not the
government of Afghanistan at the time coalition operations began against it in late
200 1.2Three highly respected colleagues argued that the Taliban was the de facto
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