Mac Nonsense, the Afghan War, and Combatant Immunity

• Jurisdiction: United States,Federal
• Citation: Vol. 44 No. 3
• Publication year: 2016

MAC Nonsense, the Afghan War, and Combatant Immunity

Jordan J. Paust^*

Table of Contents

I. Introduction...............................................................................556

II. Classification as an International Armed Conflict.........557

III. The Status of Fighters During an International Armed Conflict..........................................................................566

A. POW and Combatant Status....................................................566
B. Combatant Immunity................................................................572

IV. Conclusion..................................................................................575

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I. Introduction

An important issue has been raised concerning the proper classification of the war between the United States (and others) and the Taliban that has been ongoing for more than fourteen years—namely, whether an armed conflict that takes place in two or more countries can rightly be classified as an "armed conflict not of an international character," within the meaning of Common Article 3 of the 1949 Geneva Conventions.¹ In United States v. Hamidullin, the issue was prominent before the U.S. District Court for the Eastern District of Virginia during a hearing to dismiss charges against the leader of a military unit attached to regular armed forces of the Taliban.² The defendant's two main claims were: (1) that the armed conflict occurring in Afghanistan in 2009 when the defendant was captured was an armed conflict of an international character, and (2) that, as a member of armed forces of the Taliban or a military unit attached thereto, the defendant was entitled to combatant status and combatant immunity for lawful acts of war.³ The court noted that the two law of war experts who testified⁴ disagreed on the nature of the armed conflict that was occurring in 2009.⁵ However, the court decided that it "need not determine whether the conflict in Afghanistan is international in nature," opining that the issue was one "which may elude a

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definitive answer."⁶ Instead, the court decided that the defendant did not have prisoner of war (POW) status under a provision of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GPW)⁷ that applies during an armed conflict of an international character.⁸ As noted in below, the court should not have applied that particular provision of the GPW. Rather, it should have recognized the existence of POW status that pertains under two other provisions of the treaty and under the customary laws of war.

II. Classification as an International Armed Conflict

With respect to the issue of whether the ongoing war with the Taliban can rightly be classified as an armed conflict not of an international character (NIAC), some writers have claimed that the cross-border war with the Taliban is a NIAC within the meaning of Common Article 3.⁹ Other writers have sought the creation of a new category of armed conflict, a "transnational" non-international armed conflict.¹⁰ Presently, however, a

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cross-border or transnational non-international armed conflict is not legally possible. Indeed, cross-border or transnational fighting will internationalize an armed conflict both in reality and under the laws of war.

The text of Common Article 3 contains two significant phrases that stand in sharp opposition to a postulated space for an alleged cross-border or transnational NIAC. First, the phrase "not of an international character" clearly directs attention to the character of the armed conflict and to an awareness of real world context. Cross-border and transnational features of an armed conflict are internationalizing features that necessarily make the armed conflict one that is international in character. Second, Common Article 3 declares that an armed conflict not of an international character is an armed conflict that is "occurring in the territory of one of the" State parties.¹¹ Necessarily, a cross-border or transnational armed conflict will not occur within one country. As the authoritative commentary of the International Committee of the Red Cross (ICRC) clearly reminds, "the conflicts referred to in Article 3 are armed conflicts . . . [that] take place within the confines of a single country."¹² In a related manner, the 1977 Protocol to the 1949 Geneva Conventions (Geneva Protocol I) that is applicable during an Article 3 conflict declares that it applies to "armed conflicts . . . which take place in the territory of a" State party "between its

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armed forces and dissident armed forces or other organized armed groups."¹³ Besides the territorial limitation evident in this language, there is an evident limitation based on the status of the participants in an internal insurgency. As the ICRC Commentary on the Geneva Protocols declares: "a non-international armed conflict is distinct from an international armed conflict because . . . the parties to the conflict are not sovereign states, but the government of a single State in conflict with one or more armed factions within its territory. . . . [H]ostilities break out . . . within a single territory."¹⁴ For these and other reasons, a paradigmatic example of an armed conflict of an international character (IAC) is the ongoing war between the United States and the Taliban within Afghanistan and parts of Pakistan.¹⁵ Several writers have addressed the two-state nature of the geographical theater of the Afghan war as well as the propriety of United States' targetings of Taliban leaders and other fighters within parts of Pakistan.¹⁶ As noted in another writing:

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There is a porous border between Afghanistan and Pakistan that neither country effectively controls and for several years quite deadly, injurious, and continuous "al Qaeda and Taliban armed attacks [have been] planned, initiated, coordinated, or directed from inside Afghanistan and Pakistan on U.S. military personnel in Afghanistan who are engaged in an international armed conflict." The theatre of war has expanded to locations where persons directly participate in hostilities.¹⁷

Clearly the armed conflict with the Taliban has not taken place within the confines of a single country, and the two-state nature of the theatre of the war precludes its classification as an armed conflict not of an international character.

There are other remarkable internationalizing features of the armed conflict that compel recognition that the conflict has been one of an international character within the meaning of Common Article 2 of the Geneva Convention as well as the customary international law reflected therein.¹⁸ Prominent among these has been the direct and continued participation in the war by U.S. armed forces operating within Afghanistan and parts of Pakistan, and by drone operation from within parts of the United States. Prominent also has been the internationalizing participation by troops

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from forty-two other states after NATO became the head of an International Security Assistance Force (ISAF)¹⁹ in August 2003 until the end of NATO combat operations in December 2014.²⁰ It has been reported that during the fourteen year war, over 4,000 soldiers and civilian contractors participating with ISAF were killed along with more than 15,000 Afghan national security forces and nearly 20,000 civilians in Afghanistan.²¹ Clearly the gravity of the armed conflict and its international character, involving direct participation by the armed forces from forty-three countries in addition to those of the de jure government of Afghanistan, have been markedly evident.

These internationalizing features with respect to the Afghan war have been recognized as being among the most important elements to be taken into account when making a realistic and policy-serving decision regarding whether an armed conflict is merely a NIAC within the meaning of Common Article 3, or is an IAC within the meaning of Common Article 2 and the customary laws of war.²²

Regarding the reach of Common Article 2, it is of additional significance that customary international law is a necessary background for interpretation of any treaty.²³ As relevant background for interpretation of Common

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Article 2, it is significant that all of the customary laws of war apply during an armed conflict between a state and a "belligerent," as famously recognized during the U.S. Civil War.²⁴ Since all of the substantive provisions of the Geneva Conventions reflect customary laws of war,²⁵ and all of the customary laws of war apply during a belligerency, it would be appropriate to interpret the word "Power" that is contained in Common

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Article 2²⁶ to include a "belligerent" so that the treaty provisions applicable during an armed conflict of an international character also apply.²⁷ In any event, it is well recognized that a "belligerency" is an armed conflict of an international character during which all of the customary laws of war apply and, as noted below, the Taliban has been and is a belligerent.²⁸

With respect to the history of the international armed conflict in Afghanistan, the Taliban was the de facto government of Afghanistan on October 7, 2001 when U.S. armed forces entered the war that had previously been a belligerency between the Taliban and the Northern Alliance.²⁹ The United States' entry into the war further internationalized the armed conflict in several respects.³⁰ Moreover, during the belligerency with the Northern

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Alliance thousands of members of the regular armed forces of Pakistan had been involved in the armed conflict in support of the Taliban, a circumstance that further internationalized the armed conflict prior to the United States' intervention.³¹ The Taliban had also been recognized by a few states as the de jure government of Afghanistan.³² Although another government was created later and was recognized by most outside states as the new de jure government of...