After an absence of a couple of weeks and a summer silence on this blog, we are back. I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.
According to FoxNews:
The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”
Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,
“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”
It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.
US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.
The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII) because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII.
Had this recent Taliban code been in effect in late 2001/early 2002 it might have made it more difficult to withhold POW status from Taliban fighters. First of all, it provides evidence, if it were needed, that the Taliban is an organised armed force with a heirarchical structure. This is the first requirement in Art. 4(A)2 (the movement must be “commanded by a person responsible for his subordinates”). Indeed, it appears that part of purpose of the code is to strengthen the control by Mullah Omar over all Taliban forces. Secondly, the code could be regarded as the basis for an internal disciplinary system by which the Taliban will attempt to enforce the laws of war. The Bush Justice department argued that the Taliban did not meet the 4th condition in Art. 4(A)2 of GC III (”that of conducting their operations in accorance with the laws and customs of war”). Art. 43 of Additional Protocol I to the Geneva Conventions (which defines the “armed forces” of belligerent parties) incorporates this condition but with a different emphasis. The second sentence of Art. 43 states that the “armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” To the extent that the Taliban actually attempts to enforce, or establishes a system for enforcing, its new code, one could argue that the condition in the second sentence of Article 43 would have been met (if the conflict were an international armed conflict). This would be the case, even if the Taliban’s operations continue to violate IHL.
The condition in the second sentence of Art. 43 of API appears to change the law regarding POW status in that it shifts the emphasis from the actual compliance with IHL in the conduct of operations to the presence of system for ensuring compliance with international humaniterian law (IHL). This leaves room for a gap between theory and practice. However, API doesn’t actually change the law in this regard when one is considering regular forces. Although some of the conditions in Art. 4(A)2 of the 3rd Geneva Convention apply to regular forces, the fourth condition for POW status – actual compliance with the laws and customs of war – did not apply to regular forces. Art. 4(A)2 suggests that members of irregular forces who commit war crimes would not be entitled to POW statuts. However, under GCIII, individual members of regular forces who had committed war crimes would still be entitled to POW status. This is the reason for Art. 85 of GCIII which states that:
Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.
Since combatants are entitled to immunity from prosecution for lawful acts of war, it is clear that Art. 85 is intended to refer primarily to prosecutions for war crimes (or crimes against humanity).
Moreover, State practice indicates that even when regular forces regularly or systematically commit violations of IHL, members of those forces should still be accorded POW status. German and Japanese forces were accorded POW status after World War II despite the fact that thousands were tried for war crimes.
Thus, despite appearances, the only change that the second sentence of Art. 43(1) makes to the conditions of lawful combatancy and POW status is with regard to irregular forces. The first sentence of Art. 43(1) equates regulars and irregulars so the effect of the second sentence is that members of irregular forces who belong to a party may now not be denied POW status simply because of actual non-compliance as long as those forces have an internal disciplinary system which enforces compliance.
To return to the Taliban, were the war in Afghanistan an international armed conflict (which it hasn’t been for may years), the issuance of the code of conduct would be significant as it would indicate an internal system for enforcing compliance with the laws of war.