The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan?

• Author: Marco Sassóli
• Position: Professor of International Law at the University of Geneva, Switzerland, and Associate Professor at the universities of Quebec in Montreal and of Laval, Canada
• Pages: 431-463

XVII

The International Legal Framework for

Stability Operations:

When May International Forces Attack or

Detain Someone in Afghanistan?

Marco Sassdli*

I. Introduction

Whetherwe call the involvement of international forces in Afghanistan as-

sistance to the Afghan government or apeace operation, astability oper-

ation, part of the "war on terror," an armed conflict, aforeign occupation or alove

affair, and whatever the legal basis of such involvement may be, two of the most

important tactical and humanitarian issues confronting international forces are

when they may attack or detain an "enemy." Concerning detention, the key issues

are on what legal basis and according to what procedure the decision to arrest and

detain may be taken. Two branches of international law govern attack and deten-

tion: international humanitarian law (IHL) (or the law of armed conflict) and in-

ternational human rights law (IHRL). For both branches, first, aquestion of

applicability arises: IHRL applies in every circumstance and to everyone, but are

the armed forces of States bound by IHRL when acting outside their national terri-

tories? As for IHL, it certainly applies to armed forces acting extraterritorially, but

*Professor of International Law at the University of Geneva, Switzerland, and Associate

Professor at the universities of Quebec in Montreal and of Laval, Canada. This article will also be

published in volume 39 of the Israel Yearbook on Human Rights (forthcoming 2009).

When May International Forces Attack or Detain Someone in Afghanistan?

it applies only to armed conflicts and its rules on the issues of attack and detention

are probably different in international and non-international armed conflicts. Sec-

ond, when applicable, for both IHL and IHRL the question arises as to when they

allow (or rather, do not prohibit) international forces to deprive enemies of their

life or their liberty. Third, if both branches apply and lead to differing results on the

two issues, we must determine which of the two prevails.

In this article, Iwill try to discuss these three questions, putting the emphasis on

the substance of the rules, as others in this volume have extensively discussed the

classification of the conflict(s) in Afghanistan under IHL.

When Irefer to the "enemies" who may or may not be attacked or detained un-

der the rules to be discussed, Iwill call them "fighters." Who maybe attacked or de-

tained for what reasons is obviously one of the questions with which the legal

framework must deal; even if the answer to that legal question were clear, one of

the greatest practical difficulties would remain: to identify whether someone be-

longs to those categories. However, this article does not deal with thieves, with

harmless civilians who may become incidental victims of attacks or are mistakenly

targeted, or with civilians who oppose the government or the international pres-

ence without using force. These people are obviously covered by the rules to be ex-

plored, but they are not the hard cases and IHL and IHRL do not prescribe differing

rules on them. The same is true for attacks directed against people who actually at-

tack international forces while they are engaged in such attacks. The difficult cases,

with regard to the legality of attacks and the legal basis for their detention, are per-

sons whom international forces believe to be members of armed groups, such as Al

Qaeda and the Taliban. Iwill explain why Iconsider that mere membership in such

groups is not sufficient, but that the person must also have afighting function to be

alegitimate target of attack. 1

II. Applicability ofIHL to the Situation in Afghanistan

It is uncontroversial that in 2008 the level of violence and the degree of organiza-

tion of the Taliban and, at least in Afghanistan, of Al Qaeda are sufficiently high to

make IHL applicable, even if the higher requirements of intensity and organization

of the parties of IHL of non-international armed conflicts are applied. 2The United

States agrees, indeed, that the conflict between the Taliban and the Afghan govern-

ment is not of an international character and that this characterization is not al-

tered by the fact that the latter is heavily supported (if not kept alive) by

international forces. The only construction under which the entire conflict in Af-

ghanistan could still (in 2008) be claimed to be of an international character would

be to recall that the conflict was indeed international in 2001 because it was fought

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Marco Sassoli

between the United States and the Taliban (who constituted the de facto govern-

ment ofAfghanistan) and to consider that this conflict continues until the defeat of

the Taliban. Most, including the International Committee of the Red Cross

(ICRC), consider that the international conflict turned into aconflict not of an in-

ternational character in 2002 when the Karzai government was first appointed by

the Loya Jirga5and then elected (since this new government of Afghanistan re-

quested the foreign forces to support its continuing fight against the Taliban). For-

mally, however, one could consider that, until the Taliban are completely defeated,

the conflict between the United States and the Taliban maintains its international

character and the United States (or the UN Security Council) could not have al-

tered this classification by establishing, recognizing or concluding agreements with

anew local government in the territory it occupied following its invasion.4How-

ever, this is certainly not the thesis of the United States and it encounters different

legal problems, inter alia, that it is difficult to consider free elections achange intro-

duced by the occupying power, that the UN Security Council has given its blessing

to the new arrangements and that UN Security Council resolutions prevail over

any other international obligation under Article 103 of the UN Charter.

The United States argues, however, that beside the non-international armed

conflict against the Taliban, aseparate international armed conflict exists: the "war

on terror" against Al Qaeda and its associates.

As far as treaty law is concerned, international armed conflicts are mainly gov-

erned by the Geneva Conventions and Additional Protocol I. 5Neither the United

States nor Afghanistan is aparty to Protocol I, but they are bound by the many

rules of the latter that correspond to customary international law. The Geneva

Conventions apply to international armed conflicts. Common Article 2to the

Conventions states that they "shall apply to all cases of declared war or of any other

armed conflict which may arise between two or more of the High Contracting

Parties." Only States can be parties to the Conventions. Al Qaeda is not aState.

Therefore, the Conventions do not apply to aconflict between the United States

and its allies, on the one hand, and this non-State actor, on the other hand. As for

customary international law, there is no indication confirming what seems to be

the view of the US administration, i.e., that the concept of international armed

conflict under customary international law is broader.6State practice and opinio

juris do not apply the law of international armed conflict to conflicts between

States and certain non-State actors. On the contrary, and in conformity with the

tenets of the Westphalian system, States have always distinguished between con-

flicts against one another, to which the whole of IHL applied, and other armed con-

flicts, to which they were never prepared to apply those same rules, but only more

limited humanitarian rules.

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