Law of War Issues in Ground Hostilities in Afghanistan

• Author: Gary D. Solis
• Position: Adjunct Professor of Law, Georgetown University Law Center
• Pages: 219-245

IX

Law of War Issues in Ground Hostilities

in Afghanistan

Gary D. Solis*

Introduction

British soldiers first came to Afghanistan in 1839, hoping to extend the Em-

pire and counter growing Russian influence there. That four-year conflict

ended in the massacre ofmost ofthe retreating British force of 16,500, demonstrat-

ing that, while Afghanistan could be conquered, holding it was another thing. In

1878, again fearing Russian influence in the region, England once more invaded

Afghanistan from its base in India. Britain's early victory and regime change nearly

proved Pyrrhic. With their occupation unexpectedly costly in men and treasure, the

English gained control of Afghan foreign policy, then withdrew most of their forces

to India. In 1919, when remaining British units were attacked by Afghan forces, the

British initiated athird foray into Afghanistan, this one more successful than the

prior two adventures. Afghanistan nevertheless gained its independence in 1921.

Reminiscent of the British incursions into Afghanistan, from 1978 to 1992 the

Soviet Union sponsored an armed conflict between the communist Afghan gov-

ernment and anti-communist Muslim guerrillas. For their trouble, the Russians

learned the grim lesson of the Kipling poem, "Young British Soldier": "When

you're wounded and left on Afghanistan's plains, And the women come out to cut

up what remains, Jest roll to your rifle and blow out your brains, An' go to your

Gawd like asoldier. ..."

Adjunct Professor of Law, Georgetown University Law Center.

Law of War Issues in Ground Hostilities in Afghanistan

Now, prepared to overcome history with modern weapons and new tactics, the

United States is in the seventh year of its war in Afghanistan. Challenges abound. It

is anation of massive mountain ranges and remote valleys in the north and east,

with desert-like conditions on the plains to the south and west. Road and rail sys-

tems remain minimal and many of those that do exist are in disrepair. About the

size of Texas, Afghanistan has apopulation of around twenty-four million. Now it

has avisiting military population embedded in the International Security Assis-

tance Force (ISAF) numbering about 45,000 ground personnel, including 15,000

US troops, with another 19,000 US troops assigned to Joint Task Force 101, a part

of Operation Enduring Freedom forces assigned to Afghanistan. 1

This article offers asummary examination of some of the law of armed conflict

(LOAC) issues encountered in US ground combat in Afghanistan. These issues

were discussed during the June 2008 Naval War College workshop, "The War in

Afghanistan," which was the genesis of this volume of the "Blue Book." Although

it is aconflict whose ending remains to be written, much of its LOAC outlines are

already discernable. Difficult issues involving conflict and individual status, ques-

tions about prisoner of war (POW) status, arguments regarding targeted killing

and "direct participation," the questionable deportation of individuals from Af-

ghanistan to Guantanamo Bay, and adisturbing number of war crime allegations

all arose in workshop discussions of ground combat in Afghanistan. This summary

account reflects afew of those issues as seen through the lens of one participant.

Not all attendees will agree with all of these assessments, but they provide depar-

ture points for discussion at future workshops.

Armed Conflict Commences

The genesis ofAmerica's war in Afghanistan is well known. Long before the attacks

of September 11, 2001, the United States was concerned with the direction taken by

Afghanistan, as the Department of State's Coordinator for Counterterrorism said

in a1999 Senate hearing:

Afghanistan has become anew safehaven for terrorist groups. In addition to bin Ladin

and al-Qa'ida, the Taliban play host to members of the Egyptian Islamic Jihad, the

Algerian Armed Islamic [G]roup, Kashmiri separatists, and anumber of militant

organizations from Central Asia, including terrorists from Uzbekistan and Tajikistan.2

After the 9-11 attacks, President George W. Bush demanded that Afghanistan

close its terrorist camps and hand over al Qaeda leaders in hiding there. 3As Profes-

sor Dinstein points out, an ultimatum from one government to another, setting a

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