An effective legal regime governing the actions of armed non-state actors in Afghanistan should encompass not only international humanitarian law but also international human rights law. While the applicability of Common Article 3 of the 1949 Geneva Conventions to the conflict is not controversial, how and to what extent Additional Protocol II applies is more difficult to assess, in particular in relation to the various armed actors operating in the country. The applicability of international human rights law to armed non-state actors – considered by the authors as important, particularly in Afghanistan – remains highly controversial. Nevertheless, its applicability to such actors exercising control over a population is slowly becoming more accepted. In addition, violations of peremptory norms of international law can also directly engage the legal responsibility of such groups.
1 For a summary of the defeat of the Taliban and their subsequent resurgence as a major fighting force, see, e.g., Ahmed Rashid, Taliban, I. B. Tauris, London/New York, 2010, especially Chapter 17, ‘The Taliban resurgent, 2000–2009’, pp. 217–246.
2 See, e.g., Jonathon Burch, ‘Foreign troop deaths in Afghanistan near 600 for 2010’, in Reuters, 24 October 2010, available at: http://www.reuters.com/article/idUSTRE69N0ZN20101024 (last visited 18 January 2011).
3 Since 2003, the ISAF has been a North Atlantic Treaty Organization (NATO) operation, whose mission today is, ‘in support of the Government of the Islamic Republic of Afghanistan, [to] conduct … operations in Afghanistan to reduce the capability and will of the insurgency’. ISAF, ‘Mission’, available at: http://www.isaf.nato.int/mission.html (last visited 18 January 2011).
4 For the purpose of this article we use the following working definition of an armed non-state actor: any armed group, distinct from and not operating under the control of, the state or states in which it carries out military operations, and which has political, religious, and/or military objectives. Thus, it does not ordinarily cover private military companies or criminal gangs, although a controversial study by the US Senate Armed Services Committee ‘uncovered evidence of private security contractors funneling U.S. taxpayers dollars to Afghan warlords and strongmen linked to murder, kidnapping, bribery as well as Taliban and other anti-Coalition activities’. See Committee on Armed Services, ‘Inquiry into the role and oversight of private security contractors in Afghanistan’, Report together with additional views, US Senate, 28 September 2010, p. i, available at: http://armed-services.senate.gov/Publications/SASC%20PSC%20Report%2010-07-10.pdf (last visited 18 January 2011).
5 According to Ahmed Rashid, a Pakistani journalist and author, ‘A talib is an Islamic student, one who seeks knowledge compared to the mullah who is one who gives knowledge. By choosing such a name the Taliban (plural of Talib) distanced themselves from the party politics of the Mujaheddin and signalled that they were a movement for cleansing society rather than a party trying to grab power’. A. Rashid, above note 1, pp. 22–23.
6 See, e.g., James Fergusson, Taliban: The True Story of the World's Most Feared Fighting Force, Bantam Press, London, 2010, p. 15.
7 See, e.g., BBC, ‘Who are the Taliban?’, 1 October 2010, available at: http://www.bbc.co.uk/news/world-south-asia-11451718 (last visited 18 January 2011).
8 International Crisis Group, ‘Taliban propaganda: winning the war of words?’, available at: http://www.crisisgroup.org/en/regions/asia/south-asia/afghanistan/158-taliban-propaganda-winning-the-war-of-words.aspx (last visited 18 January 2011).
9 This growing intensity can be seen both on a military and a civilian level. The non-governmental ‘Icasualty’ website has recorded military casualties among the international coalition rising from 12 in 2001, to 191 in 2006, to 521 in 2009, and 711 in 2010, available at: http://icasualties.org/OEF/Index.aspx (last visited 18 January 2011).
10 ‘Named after its leader Jalaluddin Haqqani, the Haqqani Network is a group within the insurgency in Afghanistan that is based out of North Waziristan in the Pakistani Federally Administered Tribal Areas (FATA). The group has been active mainly in the east of Afghanistan – in Paktia, Paktika, Khost, Ghazni Wardak and even Kabul provinces’. Institute for the Study of War, ‘Haqqani network’, available at: http://www.understandingwar.org/themenode/haqqani-network; and see also GlobalSecurity.org, ‘Haqqani Network’, available at: http://www.globalsecurity.org/military/world/para/haqqani.htm (both last visited 18 January 2011). Haqqani was the former Taliban Minister of Tribal Affairs. See A. Rashid, above note 1, p. 224. James Fergusson suggests that Haqqani was always much closer ideologically to Al Qaeda than the Taliban. He cites a report in the New York Times that suggests that the Haqqani Network forces numbered ‘perhaps 12,000 in late 2009’. J. Fergusson, above note 6, p. 130, citing Jane Perlez, ‘Rebuffing US, Pakistan balks at crackdown’, in New York Times, 14 December 2009, available at: http://www.nytimes.com/2009/12/15/world/asia/15haqqani.html (last visited 25 January 2011).
11 According to GlobalSecurity.org, ‘Hizb-I Islami Gulbuddin often operates like both a crime family and an apostle of al Qaeda … In the early 1990s, Gulbuddin Hekmatyar served as prime minister of Afghanistan. He was the man most responsible for the fighting that left Kabul in ruins. Hekmatyar's Hizb-e-Islami was a key ally and favorite of Pakistan's Inter Service Intelligence (ISI). Hekmatyar's faction was abandoned by its Pakistani backers as the Omar faction grew in power in the late 1990s. Since the events of September 11, 2001 Hekmatyar, an ethnic Pashtun, formed an anti-coalition alliance with Taliban leader Muhammad Omar and the remnants of the al Qaeda group in the country. Hekmatyar's base of support was always in the Khyber Pass Jalalabad area, east of Kabul, but he still has supporters throughout Afghanistan’. GlobalSecurity.org, ‘Hizb-I Islami’, available at: http://www.globalsecurity.org/military/world/para/hizbi-islami.htm (last visited 18 January 2011). See also J. Fergusson, above note 6, Chapter 12.
12 UNAMA, ‘Afghanistan: mid year report 2010: protection of civilians in armed conflict’, August 2010, p. 6, available at: http://unama.unmissions.org/Portals/UNAMA/Publication/August102010_MID-YEAR%20REPORT%202010_Protection%20of%20Civilians%20in%20Armed%20Conflict.pdf (last visited 18 January 2011).
13 The Taliban has re-emerged in Afghanistan as the largest ANSA in the country, also becoming stronger as a distinct but related entity in neighbouring Pakistan. The Tehrik-i-Taliban Pakistan, the umbrella movement of the Pakistani Taliban, was founded in 2002: see J. Fergusson, above note 6, p. 35. There is said to be ‘loose coordination’ between different Taliban factions and militant groups: BBC, ‘Who are the Taliban?’, above note 9. Since 1 September 2010, ‘Tehrik-e Taliban Pakistan’ has been listed by the US Department of State as a ‘foreign terrorist organization’ but the Taliban in Afghanistan is not: Office of the Coordinator for Counterterrorism, US Department of State, ‘Foreign terrorist organizations’, 15 October 2010, available at: http://www.state.gov/s/ct/rls/other/des/123085.htm (last visited 18 January 2011).
14 See, e.g., Gilles Dorronsoro, ‘Who are the Taliban?’, in The Huffington Post, 27 October 2009, available at: http://www.huffingtonpost.com/gilles-dorronsoro/who-are-the-taliban_b_335592.html (last visited 18 January 2011).
15 International Crisis Group, ‘Afghanistan conflict history’, updated January 2010, available at: http://www.crisisgroup.org/en/key-issues/research-resources/conflict-histories/afghanistan.aspx (last visited 18 January 2011).
16 Although the Taliban have not been listed as a foreign terrorist organization by the USA, Mullah Omar and other leading figures of the Taliban are part of ‘the Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them’, available at: http://www.un.org/sc/committees/1267/consolist.shtml (last visited 18 January 2011).
17 In June 2010, the head of the US Central Intelligence Agency claimed that the figure was between fifty and one hundred fighters. ‘La lutte contre al-Qaïda en Afghanistan finira par porter ses fruits selon le patron de la CIA’, in RFI, available at: http://www.rfi.fr/ameriques/20100628-lutte-contre-al-qaida-afghanistan-finira-porter-fruits-selon-le-patron-cia (last visited 18 January 2011). According to James Fergusson, ‘There has, of course, been no significant al-Qaida presence in Afghanistan since 2002’. J. Fergusson, above note 6, p. 90.
18 According to claims reported by James Fergusson, Mullah Omar has not been in contact with Osama Bin Laden since the end of 2001. An email from Omar to a journalist in January 2007 had stated that: ‘We have never felt the need for a permanent relationship in the present circumstances … They have set jihad as their goal, whereas we have set the expulsion of American troops from Afghanistan as our target’. J. Fergusson, above note 6, pp. 92–93.
19 See, e.g., Afghanistan Independent Human Rights Commission, ‘Civilian casualty figure; first seven months of 2010 (1st January–31st July)’, Kabul, 8 August 2010, available at: http://www.aihrc.org.af/2010_eng/Eng_pages/Reports/Thematic/Civilian_Casualities_Jan_Jul31_2010.pdf (last visited 18 January 2011); and UNAMA, above note 12.
20 Amnesty International, ‘Afghanistan conference raises fears of sacrificing rights for short-term peace’, 19 July 2010, available at: http://www.amnesty.org/en/news-and-updates/afghanistan-conference-raises-fears-sacrificing-rights-short-term-peace-2010-07-19 (last visited 18 January 2011).
21 This point of view is widely shared. Thus, the UK regards the ongoing hostilities as a non-international armed conflict. See, e.g., Turns, David, ‘Jus ad pacem in bello? Afghanistan, stability operations and international law relating to armed conflict’, in Israel Yearbook on Human Rights, Vol. 39, 2009, p. 236. Germany similarly qualifies the conflict as being non-international in character. See Christian Schaller, ‘Military operations in Afghanistan and international humanitarian law’, German Institute for International and Security Affairs, SWP Comments, No. 7, March 2010, p. 2. See also Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Mission to Afghanistan, A/HRC/11/2/Add.4, para. 1: ‘Afghanistan is experiencing armed conflict across a broad swath of its territory. In legal terms, this is a non-international armed conflict between the Government, supported by international military forces (IMF), and various armed groups’. This position does not, however, enjoy consensus among international lawyers. Yoram Dinstein argues that the continuing armed hostilities between international forces and the insurgency might be considered as a prolongation of the international armed conflict that started in October 2001 with the US-led military intervention against the former Taliban government. This conflict would remain international until the Taliban are defeated, alongside a separate armed conflict of a non-international character between the Taliban and the government that replaced them. See Yoram Dinstein, ‘Concluding remarks on terrorism and Afghanistan’, in Israel Yearbook on Human Rights, 2009, p. 325. For a similar position on that issue, see Eric David, Principes de droit des conflits armés, 4th edition, Bruylant, Brussels, 2008, p. 175.
22 According to Stéphane Ojeda, for example, the Taliban ‘were controlling and ruling over about 95 percent of the Afghan territory in October 2001’. Stéphane Ojeda, ‘US detention of Taliban fighters: some legal considerations’, in Michael N. Schmitt (ed.), The War in Afghanistan: A Legal Analysis, International Law Studies, Vol. 85, US Naval War College International Studies, Naval War College Press, 2009, pp. 358–359. See also Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 29, para. 72. For a contrary assessment of the status of the conflict, see W. Hays Parks, ‘Combatants’, in Schmitt, The War in Afghanistan, p. 258: ‘The facts on the ground and international law do not support a conclusion that the Taliban was the de facto, much less the de jure, government of Afghanistan …. The civil war did not end with the Taliban as a clear victor occupying, much less controlling, Afghanistan. At the time of commencement of US and coalition operations on October 20, 2001, the civil war continued, and Taliban power had eroded significantly’. As noted above, only three states had recognized the Taliban as the legitimate government of Afghanistan; however, this would not necessarily per se preclude the conflict being an international one on the basis of Additional Protocol I, Art. 43, para. 1, which states that: ‘The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’. This begs the question, of course, as to whether this provision has become a customary rule, as neither Afghanistan nor the US was a party to Additional Protocol I at that time. Also relevant to the specific issue of prisoners of war (POWs) is Geneva Convention III, Article 4(3), which lays down the obligation to recognize as POWs ‘Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power’.
23 The decision by the US Supreme Court in Hamdan v. Rumsfeld suggests that it could be the latter. US Supreme Court, Hamdan v. Rumsfeld, Secretary of Defense et al., 29 June 2006, p. 6, esp. (d) (ii), available at: http://www.supremecourt.gov/opinions/05pdf/05-184.pdf (last visited 18 January 2011). For a criticism of the decision in Hamdan, see Y. Dinstein, above note 22, pp. 56–57, paras. 129–130. For a general review of the application of international humanitarian law to Al Qaeda, see Marco Sassòli, ‘Transnational armed groups and international humanitarian law’, Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, No. 6, Winter 2006.
24 There are at least five possible dates. The first of these is the establishment of an Interim Authority in December 2001 by the Bonn Agreement (Establishment of the Afghan Interim Authority on 22 December 2001 headed by Hamid Karzai. See the Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions (the Bonn Agreement), S/2001/1154, 5 December 2001, Art. 1(2)). The second possibility is the appointment of Karzai by the Loya Jirga (grand assembly) in June 2002 as President of the Transitional Authority. The third possibility is the adoption of the new constitution in January 2004. The fourth possibility is the presidential election of Karzai in October 2004. The fifth possibility is the parliamentary election in 2005. The International Committee of the Red Cross (ICRC), for example, implies that the appointment of Karzai in June 2002 as the President of the Transitional Authority changed the legal nature of the conflict into a non-international one. See ICRC, International Humanitarian Law and Terrorism: Questions and Answers, May 2004, available at: http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism-faq-050504 (last visited 18 January 2011).
25 As discussed further below, there is a difference in the scope of application between Common Article 3, which has a relatively low threshold of application but which provides for limited protection, and Additional Protocol II, which has a more restrictive scope of application but which offers broader and more detailed protection. Both Common Article 3 and Additional Protocol II, however, only apply to an armed conflict and therefore not to situations of ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’. See Additional Protocol II, Art. 1(2). This threshold is also believed to be valid for situations covered by Common Article 3. See, e.g., Vité, Sylvain, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual situations’, in International Review of the Red Cross, Vol. 91, No. 873, March 2009, p. 76; and UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2005, paras. 15.2 and 15.3.
26 See, International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, para. 218. Similar remarks were made by the Court in the 1996 Nuclear Weapons Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 79. Statements on the customary nature of Common Article 3 have also been made by the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda. See notably, International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 98; International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 608.
27 See, e.g., Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law, Cambridge Studies in International and Comparative Law, Cambridge University Press, Cambridge, 2002, p. 83; G. I. A. D. Draper, ‘Wars of national liberation and war criminality’, in Michael Howard (ed.), Restraints on War: Studies in the Limitation of Armed Conflict, Oxford University Press, Oxford, 1979, p. 183; Abi-Saab, Georges, ‘Non-international armed conflicts’, in International Dimensions of Humanitarian Law, UNESCO and Martinus Nijhoff, Dordrecht, 1988, p. 235. The Rome Statute of the International Criminal Court also appears to distinguish between acts prohibited under Common Article 3 and other violations committed during the conduct of hostilities. See Rome Statute, Art. 8(2)(c) and Art. 8(2)(e).
28 A. P. V. Rogers, Law on the Battlefield, 2nd edition, Manchester University Press, Manchester, 2004, p. 221. See also Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, pp. 58–61.
29 ICTY, Prosecutor v. Tadic, above note 26, para. 70. By ‘protracted’ is meant particularly the intensity of the armed violence and not merely its duration, the ordinary meaning of the word notwithstanding. ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-84-T, Judgment (Trial Chamber), 3 April 2008, para. 49. See also, e.g., S. Vité, above note 25, pp. 76–77.
30 Regarding the level of organization of the ANSAs, international tribunals and legal scholars have developed a variety of indicative elements or ‘useful’ guidelines that may be taken into account to establish the necessary degree of organization of the group, none of which is, on its own, essential to establish whether the organizational requirement is fulfilled. See Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary: First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, pp. 49–50, available at: http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument (last visited 19 January 2011); ICTY, Prosecutor v. Tadic, above note 26, para. 70; ICTY, Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment, 16 November, 1998, para. 184; ICTY, Prosecutor v. Haradinaj, above note 29, para. 60; ICTY, Prosecutor v. Boskoski, Case No. IT-04-82, Judgment (Trial Chamber), 10 July 2008, paras. 199–203; and ICTR, Prosecutor v. Akayesu, above note 26, para. 619; ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment (Trial Chamber I), 6 December 1999, para 93. See also the International Commission of Inquiry on Darfur, ‘Report Pursuant to Security Council Resolution 1564 of 18 September 2004’, 25 January 2005, paras. 74–76; International Law Association, Use of Force Committee, ‘Final report on the meaning of armed conflict in international law’, 2010, pp. 28–33, available at: http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm (last visited 18 January 2011).
31 For instance, the US Department of State recognizes the existence of an ‘armed conflict with al-Qaeda, the Taliban and associated forces’. Harold Hongju Koh, The Obama Administration and International Law, paper delivered at the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010, available at: http://www.state.gov/s/l/releases/remarks/139119.htm (last visited 18 January 2011).
32 On ‘The Islamic Emirate of Afghanistan rules for mujahideen’, see: ‘Taliban issues code of conduct’, in al-Jazeera, 28 July 2009, available at: http://english.aljazeera.net/news/asia/2009/07/20097278348124813.html (last visited 18 January 2011). More generally, see Program for Cultural and Conflict Studies, ‘Understanding Afghan culture: analyzing the Taliban code of conduct: reinventing the Layeha’, Department of National Security Affairs, Naval Postgraduate School, August 2010, p. 3, available at: http://info.publicintelligence.net/Layeha.pdf (last visited 18 January 2011).
33 One of the arguments put forward has been that ‘Party’ (with a capital ‘p’) meant ‘High Contracting Party’, i.e. states, and that it was used in a contracted form merely to avoid repetition. See, e.g., Svetlana Zašova, ‘L'applicabilité du droit international humanitaire aux groupes armés organisés’, in J. M. Sorel and Corneliu-Liviu Popescu (eds), La protection des personnes vulnérables en temps de conflits armés, Bruylant, Brussels, 2010, p. 58; and L. Zegveld, above note 27, p. 61.
34 In Nicaragua v. United States of America, for example, the ICJ confirmed that Common Article 3 was applicable to the Contras, the non-state armed group fighting the government: ‘The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character'. ICJ, Nicaragua v. United States of America, above note 26, para. 219. See also Sassòli, Marco, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in Journal of International Humanitarian Legal Studies, Vol. 1, 2010, p. 12.
35 For example, in 2004, rather dodging the issue, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) simply held that ‘it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties’. SCSL, Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Decision of 31 May 2004, para. 22.
36 See, e.g., Daniel Bethlehem, ‘The methodological framework of the study’, in Elizabeth Wilmshurst and Susan Breua (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 8.
37 Thus, e.g., it has been asserted that: ‘[T]here is now no doubt that this article [Common Article 3] is binding on states and insurgents alike, and that insurgents are subject to international humanitarian law … [a] convincing theory is that [insurgents] are bound as a matter of customary international law to observe the obligations declared by Common Article 3 which is aimed at the protection of humanity’. SCSL, Prosecutor v. Morris Kallon and Brima Buzzy Kamara, SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004, paras. 45–47. See also L. Moir, above note 28, pp. 56–58.
38 Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (hereafter ICRC Commentary), ICRC, Geneva/Martinus Nijhoff Publishers, Dordrecht, 1987, p. 1345; Sivakumaran, Sandesh, ‘Binding armed opposition groups’, in International and Comparative Law Quarterly, Vol. 55, 2006, p. 381.
39 See, in this regard, Cassese, Antonio, ‘The status of rebels under the 1977 Geneva Protocol on Non-international Armed Conflicts’, in International and Comparative Law Quarterly, Vol. 30, No. 2, April 1981, p. 429.
40 1969 Vienna Convention on the Law of Treaties, Art. 35; see A. Cassese, above note 39, pp. 424–429.
41 Some argue that this theory results in an application of IHL norms on ANSAs only on a case-by-case basis, depending on each armed group's willingness to apply the law. This represents a significant drawback to such an approach. In addition, as Zegveld observes, requiring the consent of an ANSA would put the group ‘on an equal footing with the state. This consequence has clearly been unacceptable for states and international bodies’. L. Zegveld, above note 27, p. 18.
42 According to the ICRC, ‘The obligation resting on the Party to the conflict which represents established authority is not open to question. …[I]f the responsible authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the country, or part of the country’. Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, ICRC, 1958, p. 37; see also M. Sassòli, above note 34, pp. 5–51.
43 L. Moir, above note 28, pp. 55–56.
44 Andrew Clapham, The Rights and Responsibilities of Armed Non-state Actors: The Legal Landscape & Issues Surrounding Engagement, 1 February 2010, p. 6, available at: ssrn.com/abstract=1569636 (last visited 18 January 2011).
45 Thus, as Moir has noted, the conditions set by Article 1 of the Protocol imply that it governs only ‘the most intense and large scale conflicts’. L. Moir, above note 28, p. 101.
46 In contrast to Additional Protocol II, Common Article 3 also regulates armed conflict that takes place only between ANSAs, for example in a failed state.
48 Michael Bothe, Karl J. Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague, 1982, p. 626. See generally ICRC Commentary, above note 38, p. 1352. See also ICTR, Prosecutor v. Akayesu, above note 26, para. 626.
49 D. Turns, above note 21, p. 230.
50 International Council on Security and Development, Struggle For Kabul: The Taliban Advance, December 2008, available at: http://www.icosgroup.net/modules/reports/struggle_for_kabul (last visited 18 January 2011).
51 Trofimov, Yaroslav, ‘U.S. rebuilds power plant, Taliban reap a windfall’, in Wall Street Journal, 13 July 2010, available at: http://online.wsj.com/article/SB10001424052748704545004575352994242747012.html (last visited 18 January 2011).
52 See M. Bothe, K. J. Partsch, and W. A. Solf, above note 48, p. 627.
53 ICRC Commentary, above note 38, p. 1353.
55 Frits Kalshoven, Constraints on the Waging of War, ICRC, Geneva/Martinus Nijhoff, Dordrecht, 1987, p. 139.
56 See, e.g., L. Moir, above note 28, pp. 97–98. But, for less certainty as to this position, see, e.g., UK Ministry of Defence, above note 25, p. 32; Hampson, Françoise, ‘Winning by the rules: law and warfare in the 1980s’, in Third World Quarterly, 1989, p. 44; and Adam Roberts and Richard Guelff, Documents on the Laws of War, Oxford University Press, 3rd edition, 2000, p. 482. According to Cassese, determining whether a group is capable of implementing IHL rules might require a certain level of willingness. A. Cassese, above note 39, p. 428.
57 ICRC Commentary, above note 38, p. 1350.
58 Additional Protocol II, Art. 4.
59 Ibid., Arts. 5–6.
60 Ibid., Arts. 13–16.
61 Ibid., Art. 17.
62 Ibid., Arts. 9–11. Article 19 of the Protocol also requires that its provisions be disseminated ‘as widely as possible’.
63 Unlike Additional Protocol I, the following rules are not included in Additional Protocol II: definition of civilians and fighters, prohibition to attack civilian objects, definition of civilian objects and military objectives, prohibition of indiscriminate attacks, definition of indiscriminate attacks, prohibition of disproportionate attack, definition of disproportionate attacks, obligation to take precautionary measures in attack, obligation to take precautionary measures against the effects of attack. Henckaerts, Jean-Marie, ‘Binding armed opposition groups through humanitarian treaty law and customary law’, in Proceedings of the Bruges Colloquium, Relevance of International Humanitarian Law to Non-state Actors, 25–26 October 2002, Vol. 27, Collegium No. 123, Spring 2003, p. 131.
64 Note the plural of dissident armed forces or other organized armed groups, suggesting that the Protocol could potentially be not merely applicable to the Taliban but also to other ‘anti-government elements’ that meet the three criteria discussed above.
65 Additional Protocol II, Art. 1(1) (emphasis added). See also D. Turns, above note 21, p. 239; and Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, p. 257.
66 Article 6 (Conduct of organs placed at the disposal of a state by another state), International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, in Yearbook of the International Law Commission, 2001, Vol. 2, Part Two. To establish attribution, the multinational forces would have to attain the status of state agents of Afghanistan for the purpose of international humanitarian law. One would have to assert that the foreign troops in Afghan territory are not only acting with the ‘consent’, ‘under the authority of’, and ‘for the purpose of the receiving state’, but more importantly ‘under its exclusive direction and control’, for them to fall under the responsibility regime that flows from Afghanistan's adherence to the Protocol. See Commentary on Article 6, p. 44.
67 Among commentators, only Jelena Pejic appears to imply that Additional Protocol II applies to all parties to the conflict, including foreign military forces, once the criteria and threshold of application for the Protocol have been met, but it is not certain that this is what she intended (and this position is not, as she suggests, generally accepted). Jelena Pejic, ‘Status of armed conflicts’, in E. Wilmshurst and S. Breau, above note 36, p. 92.
68 See, e.g., D. Turns, above note 21, p. 239.
69 States not party to Additional Protocol II and whose military personnel were operating in Afghanistan as of the end of 2010 were the following: Azerbaijan (90 troops), Malaysia (40), Singapore (36), Turkey (1,790), and the US (est. 97,000).
70 Regrettably, and in contrast to Additional Protocol I, Additional Protocol II does not explicitly require that states parties ‘respect and ensure respect’ its provisions, as stipulated in all four Geneva Conventions.
71 If not, this could be considered an incentive for a territorial state to invite foreign forces that do not bear the same international obligations to conduct operations in its territory.
72 Military Technical Agreement, Afghanistan–ISAF, 4 January 2002, Annex 1, Point 4.
73 Bellinger, John B. III and Haynes, William J. II, ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’, in International Review of the Red Cross, Vol. 89, No. 866, p. 447.
74 See, e.g., ICTY, Prosecutor v. Haradinaj, above note 29, para. 60.
75 Article 38 of the Statute of the International Court of Justice. See also J. M. Henckaerts, above note 63; S. Sivakumaran, above note 38; M. Sassòli, above note 23, p. 40.
76 For a list of customary international law applicable in non-international armed conflicts, see the ICRC database available at: http://www.icrc.org/customary-ihl/eng/docs/home (last visited 18 January 2011). This section only addresses certain key rules. For a consolidated list of the ICRC's assessment of the rules applicable in armed conflicts of a non-international character, see, e.g., the applicable international law section of the Afghanistan profile on the Rule of Law in Armed Conflicts project database, available at: http://www.adh-geneva.ch/RULAC/applicable_international_law.php?id_state=1 (last visited 18 January 2011).
77 I.e., that it is not merely a situation ‘of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’. Jelena Pejic has stated that ‘the Study does not distinguish between the different thresholds of non-international armed conflict (under common Article 3 and Additional Protocol II), because it was found that in general States did not make this distinction in practice’. J. Pejic, above note 67, p. 88. The decision not to make any distinction between the different types of non-international armed conflict is regretted by one commentator who argues that it risks at least lessening, if not undermining, the protection afforded by human rights law. See, e.g., remarks by Françoise Hampson, in Proceedings of the Bruges Colloquium: Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary Realities, 10th Bruges Colloquium, 22–23 October 2009, No. 40, Autumn 2010, p. 117, available at: http://www.coleurop.be/file/content/publications/pdf/Collegium40.pdf (last visited 18 January 2011).
78 A. Clapham, above note 44, p. 12.
79 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law – Volume 1: Rules, Cambridge University Press, Cambridge, 2005, Rules 1, 2, and 5–24; Antonio Cassese, International Law, 2nd edition, Oxford University Press, Oxford, 2005, pp. 415–420. The International Commission of Inquiry on Darfur gave a list of norms binding on rebels such as ‘(i) the distinction between combatants and civilians; … (ii) the prohibition on deliberate attacks on civilians; … (iv) the prohibition on attacks aimed at terrorizing civilians; … (xiv) the prohibition of torture and any inhuman or cruel treatment or punishment; … (xvii) the prohibition on ill-treatment of enemy combatants hors de combat and the obligation to treat captured enemy combatants humanely’. International Commission of Inquiry on Darfur, above note 30, para. 166.
80 The scope of IHL extends throughout the territory of Afghanistan where hostilities are taking place (ratione loci) and must involve a person protected by the instruments (ratione personae). ICTY, Prosecutor v. Tadic, above note 26, paras. 69–70; ICTR, Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment and Sentence, 21 May 1999, para. 189. International tribunals have, however, developed slightly different tests to determine the requisite nexus between alleged crimes and the conflict. According to the judgment in the Tadic case: ‘It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict’. ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, 7 May 1997, para. 573. According to ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23, Appeals Chamber Judgment, 12 June 2002, para. 57: ‘As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting. It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict’. According to ICTR, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment and Sentence, 27 January 2000, para. 260: ‘[T]he alleged crimes … must be closely related to the hostilities or committed in conjunction with the armed conflict’.
81 See Human Rights Watch, The Ten-dollar Talib and Women's Rights, 13 July 2010, available at: http://www.hrw.org/node/91466 (last visited 18 January 2011). Afghanistan has adhered to, inter alia, the two 1966 International Covenants, the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of all Forms of Discrimination against Women, the Convention against Torture, and the Convention on the Rights of the Child and its two optional protocols.
82 See the ICJ 1996 Nuclear Weapons Advisory Opinion, above note 26, as well as the Advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, ICJ Reports 2004. The applicability of international human rights law in situations of armed conflict was also confirmed by the ICJ in the Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment of 9 December 2005, ICJ Reports 2005.
83 According to Stephen Pomper, attorney-adviser of the US Department of State (although writing in his private capacity), ‘despite important legal and policy changes during this period [2001–2008] … the United States maintained its legal position with respect to the non-application of its human rights obligations to extraterritorial armed conflicts’. Stephen Pomper, ‘Human rights obligations, armed conflict and Afghanistan: looking back before looking ahead’, in M. N. Schmitt, above note 22, p. 526. For another view on that issue, see Françoise Hampson, ‘Is human rights law of any relevance to military operations in Afghanistan?’, in ibid., pp. 491 et seq. See also UK House of Lords, Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant),  UKHL 26, available at: http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070613/skeini-1.htm; and UK Supreme Court, R (on the application of Smith) (FC) (Respondent) v. Secretary of State for Defence (Appellant) and another,  UKSC 29, available at: http://www.bailii.org/uk/cases/UKSC/2010/29.html (both last visited 19 January 2011).
84 See, among others, Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’, in International Review of the Red Cross, Vol. 87, No. 860, 2005, pp. 737–754; Droege, Cordula, ‘Elective affinities? Human rights and humanitarian law’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 501–548; Orakhelashvili, Alexander, ‘The interaction between human rights and humanitarian law: fragmentation, conflict, parallelism, or convergence?’, in European Journal of International Law, Vol. 19, No. 1, 2008, pp. 161–182.
85 L. Zegveld, above note 27, p. 54.
86 For some authors, though, certain provisions of human rights treaties, such as Article 5(1) and Article 20 of the International Covenant of Civil and Political Rights, must be interpreted as also being directly applicable to the behaviour of non-state actors. Article 5 (1) reads: ‘1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant’; and Article 20 stipulates that: ‘1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. See Theodor Meron, Human Rights in Internal Strife: Their International Protection, Grotius, Cambridge, 1987, p. 34; contra Nigel Rodley, ‘Can armed opposition groups violate human rights?’, in Kathleen E. Mahoney and Paul Mahoney (eds), Human Rights in the Twenty-first Century, Martinus Nijhoff, The Hague, 1993, pp. 307–308.
87 However, human rights violations committed by individuals and other non-state actors, such as companies, have been addressed in the case law of different human rights courts, as well as in domestic litigation. For example, the concept of ‘Drittwirkung’, developed by German courts, allows an individual plaintiff to sue another individual on the basis of a national bill of rights or constitutional provisions. Similarly, in the context of the European Convention of Human Rights, the court has on several occasions held the government responsible for failing to prevent, through judicial or law enforcement methods, the violation of a person's human rights by another person or a private, non-state actor (see, for example, a case relating to marital rape, SW v. United Kingdom, Judgment of 22 November 2005). Through the Alien Tort Claims Act of 1789, US national courts have established that, in some cases, private companies can be held directly accountable for human rights violations. On these issues, see generally Andrew Clapham, Human Rights Obligations of Non-state Actors, Oxford University Press, Oxford, 2006; and Andrew Clapham, ‘The “Drittwirkung” of the Convention’, in Ronald St. J. Macdonald, Franz Matscher, and Herbert Petzold (eds), The European System for the Protection of Human Rights, Martinus Nijhoff, Dordrecht, 1993, pp. 163–206.
88 Which states: ‘1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. 2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 3. The application of the present article shall not affect the legal status of any party to an armed conflict’.
89 The six violations are: ‘killing and maiming of children, recruiting and using child soldiers, attacks against schools or hospitals, rape or other grave sexual violence against children, abduction of children, and denial of humanitarian access for children’. See UN Security Council Resolution 1612 of 26 July 2005.
90 The Council has nevertheless been cautious, ‘stressing that the present resolution does not seek to make any legal determination as to whether situations which are referred to in the Secretary-General's report are or are not armed conflicts within the context of the Geneva Conventions and the Additional Protocols thereto, nor does it prejudge the legal status of the non-State parties involved in these situations’. Preamble, UN Security Council Resolution 1612 (2005).
91 Additional Protocol I, Art. 77(2); and Additional Protocol II, Art. 4(3)(c).
92 Mission Report of the Visit of the Special Representative for Children in Armed Conflict to Afghanistan, 20–26 February 2010, available at: http://www.un.org/children/conflict/_documents/countryvisits/afghanistan.pdf (last visited 29 January 2011).
93 However, as there are different standards applied to armed non-state actors and states (who can lawfully recruit under 18 years of age), it is even more difficult to justify – and convince – ANSAs that this provision directly applies to them.
94 Article 7 reads: ‘Members of armed groups shall be prohibited from: a. Carrying out arbitrary displacement; b. Hampering the provision of protection and assistance to internally displaced persons under any circumstances; c. Denying internally displaced persons the right to live in satisfactory conditions of dignity, security, sanitation, food, water, health and shelter; and separating members of the same family; d. Restricting the freedom of movement of internally displaced persons within and outside their areas of residence; e. Recruiting children or requiring or permitting them to take part in hostilities under any circumstances; f. Forcibly recruiting persons, kidnapping, abduction or hostage taking, engaging in sexual slavery and trafficking in persons especially women and children; g. Impeding humanitarian assistance and passage of all relief consignments, equipment and personnel to internally displaced persons; h. Attacking or otherwise harming humanitarian personnel and resources or other materials deployed for the assistance or benefit of internally displaced persons and shall not destroy, confiscate or divert such materials; and i. Violating the civilian and humanitarian character of the places where internally displaced persons are sheltered and shall not infiltrate such places’.
95 Article 7(2) reads: ‘Nothing in this Convention shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State’.
96 See, e.g., UN Security Resolutions S/RES/1662 (2006); S/RES/1776 (2007); and S/RES/1890 (2009).
97 UN Security Resolution S/RES/1746 (2007), para. 25.
98 Report of the Secretary-General, The Situation in Afghanistan and its Implication for International Peace and Security, 10 March 2010, UN doc. A/64/705-S/2010/127, para. 38.
99 Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Afghanistan and on the achievements of technical assistance in the field of human rights, 11 January 2010, A/HRC/13/62, para. 55.
100 UNAMA, above note 12, p. 11.
101 Human Rights Council, ‘Addressing attacks on school children in Afghanistan’, UN doc. A/HCR/14/15 (emphasis added). From another angle, it is also interesting to note that this resolution was co-sponsored by the UK and the US, two states that have been traditionally reluctant to accept the applicability of human rights in situations of armed conflict.
102 As Zegveld puts it, the ‘qualification of particular acts of armed opposition groups as human rights violations must be distinguished from the denunciation of these acts as abuses of human rights. International bodies have often condemned acts of armed opposition groups as harming human rights without considering their acts to be breaches of human rights law’. L. Zegveld, above note 27, p. 39.
103 See A. Clapham, above note 44; and, more generally, Clapham, Andrew, ‘Human rights obligations of non-state actors in conflict situations’, in International Review of the Red Cross, Vol. 88, No. 863, September 2006, pp. 491–523.
104 As Rodley emphasizes, ‘human rights are those rules that mediate the relationship between, on the one hand, governments or other entities exercising effective power analogous to that of governments and, on the other, those who are subject to that power’. N. Rodley, above note 86, p. 300; see also L. Zegveld, above note 27, p. 149.
105 Common Article 3 refers in this regard to a prohibition on ‘(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’. As noted by Marco Sassòli and Laura Olson: ‘Another factor in non-international armed conflicts which renders our discussion particularly complex (and is very neglected in scholarly writings and even in the ICRC study) is that the humanitarian law in non-international armed conflict is, as Article 3 common to the Geneva Conventions points out, equally binding for “each party to the conflict” – that is, for the non-state armed group just as much as the government side. This raises the question whether human rights are equally addressed to armed groups or whether, by virtue of the operation of the lex specialis principle, the answer to our questions is not the same for the government and for its opponent’. Marco Sassòli and Olson, Laura M., ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 602–603.
106 In the case of the Taliban, ‘courts’ seem to be instituted to examine everyday life problems and not those relating to detention of enemy combatants, which is the situation contemplated by Common Article 3. On the Taliban courts, see ‘Afghanistan: Taliban justice “fairer” than state's’, in Human Rights Tribune, 20 August 2010, available at: http://www.infosud.org/spip.php?article8710 (last visited 18 January 2011); Rod Norland, ‘In bold display, Taliban order stoning deaths’, in New York Times, 16 August 2010, available at: http://www.nytimes.com/2010/08/17/world/asia/17stoning.html (last visited 18 January 2011); Soraya Sarhaddi Nelson, ‘Taliban courts filling justice vacuum in Afghanistan’, in NPR, December 2008, available at: http://www.npr.org/templates/story/story.php?storyId=98261034 (last visited 18 January 2011).
107 See, however, Jonathan Somer for a more cautious view on the application of human rights provisions on fair trial to armed opposition courts: Somer, Jonathan, ‘Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict’, in International Review of the Red Cross, Vol. 89, No. 867, September 2007, pp. 655–690. See also Sivakumaran, Sandesh, ‘Courts of armed opposition groups: fair trials or summary justice’, in Journal of International Criminal Justice, Vol. 7, Issue 3, 2009, pp. 489–513.
108 See Michael Bhatia, ‘Armed groups in Afghanistan’, in Michael Bathia and Mark Sedra (eds), Afghanistan, Arms and Conflict: Armed Groups, Disarmament and Security in a Post-war Society, Routledge, London and New York, 2008, p. 84.
109 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, above note 66. See also Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 37.
110 How this alternative might come about is not obvious, and would depend on the role played by the insurrectional movement in the new government. In this regard, the Commentary to Article 10 underlines that: ‘The State should not be made responsible for the conduct of a violent opposition movement merely because, in the interests of an overall peace settlement, elements of the opposition are drawn into a reconstructed government. Thus, the criterion of application of paragraph 1 is that of a real and substantial continuity between the former insurrectional movement and the new Government it has succeeded in forming’. Draft Articles on Responsibility of States for Internationally Wrongful Acts, above note 66, Commentary to Article 10, para. 7. See also Gérard Cahin, ‘Attribution of conduct to the state: insurrectional movements’, in James Crawford, Alain Pellet, and Simon Olleson (eds), The Law of International Responsibility, Oxford University Press, Oxford, 2010, pp. 247–251.
111 Gérard Cahin, ‘The responsibility of other entities: armed bands and criminal groups’, in James Crawford et al., above note 110, p. 334. For an opposing view, see D'Aspremont, Jean, ‘Rebellion and state responsibility: wrongdoing by democratically elected insurgents’, in International and Comparative Law Quarterly, Vol. 58, April 2009, p. 427.
112 M. Sassòli, above note 34, p. 8.
113 See Wolfrum, Rüdiger and Philipp, Christian E., ‘The status of the Taliban: their obligations and rights under international law’, in Max Planck Yearbook of United Nations Law, Vol. 6, 2002, pp. 559–601.
114 With regard to the scope of obligations of states parties, the Committee has underlined that states parties must respect and ensure the rights protected by the Convention ‘to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’. See Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004, CCPR/C/21/Rev.1/Add. 13, para. 10.
115 This typology is widely used by treaty bodies in assessing the level of obligations imposed on states parties. Reference to this framework is made in regard to economic and social rights as well as civil and political rights. See, Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton University Press, Princeton, 1980. See also Asbjørn Eide, The Right to Adequate Food as a Human Right, UN/Commission on Human Rights, Special Rapporteur, UN doc. C/CN.4/Sub.2/1987/23, 7 July 1987. Committee on Economic, Social and Cultural Rights, General Comment No. 12 (1999): on the right to adequate food (Art. 11 of the Covenant); General Comment No. 13 (1999): on the right to education (Art. 13 of the Covenant); General Comment No. 15 (2002): on the right to water (Arts. 11 and 12 of the Covenant). Nowak interprets the words ‘to ensure’ in Article 2(1) of the ICCPR as incorporating the obligations to protect and to fulfil. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd revised edition, Engel, Kehl am Rhein, 2005, pp. 37–41. See also Human Rights Committee, above note 114.
116 A. Clapham, ‘Human rights obligations of non-state actors in conflict situations’, above note 103, p. 502.
117 See, in that sense, Article 7(1) of the Kampala Convention, which states that: ‘The provisions of this Article shall not, in any way whatsoever, be construed as affording legal status or legitimizing or recognizing armed groups and are without prejudice to the individual criminal responsibility of the members of such groups under domestic or international criminal law.’
118 Norms of jus cogens – the peremptory norms of international law – are defined by Article 53 of the 1969 Vienna Convention on the Law of Treaties as norms ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. The ILC Draft Articles foresee superior means of enforcement for jus cogens norms, by including special regulation for both the responsible state and for all other states in the case of violations. See Tams, Christian J., ‘Do serious breaches give rise to any specific obligations of the responsible state?’, in European Journal of International Law, Vol. 13, 2002, pp. 1161–1180.
119 International Law Association, The Hague Conference 2010, Non State Actors, First Report of the Committee (Non-state actors in international law: aims, approach and scope of project and legal issues), para. 3.2 (emphasis original).
120 Commentary on Article 26, in Yearbook of the International Law Commission, above note 66, p. 85.
121 A. Clapham, Human Rights Obligations of Non-state Actors, above note 87, p. 88.
122 Human Rights Committee, ‘General Comment No. 29: States of Emergency (Article 4)’, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, pp. 4–5.
123 See Rome Statute, Arts. 6 and 7; Hessbruegge, Jan Arno, ‘Human rights violations arising from conduct of non-state actors’, in Buffalo Human Rights Law Review, Vol. 21, No. 11, 2005, pp. 41–44. See also Philippe Currat, Les crimes contre l'humanité dans le statut de la Cour pénale internationale, Bruylant/L.G.D.J./Schulthess, Brussels, 2006.
124 In its mid-year report of 2010, the UNAMA noted that: ‘Anti-Government Elements operate with impunity in Afghanistan. UNAMA HR observed that while the Taliban have made public commitments to avoid civilian casualties, including those found in several provisions of the 2009 Taliban Code of Conduct, no information exists on whether and how Taliban commanders have ensured effective implementation of the provision on the ground … The Afghan Government often fails in its duty to investigate, arrest and punish perpetrators, including any member of an anti-government element, for violations under domestic criminal laws, international humanitarian law or applicable human rights law’. UNAMA, above note 12, p. 11.
125 For proposals to improve compliance by ANSAs, see the preliminary findings of the ongoing research project led by the Geneva Academy into ways to improve the protection of civilians in armed conflict, especially by ANSAs: ‘Armed non-state actors and international norms: towards a better protection of civilians in armed conflicts: summary of initial research and discussions during an expert workshop in Geneva in March 2010’, September 2010, available at: http://www.adh-geneva.ch/news/armed-non-state-actors-international-norms (last visited 18 January 2011). See also Marco Sassòli, ‘Possible legal mechanisms to improve compliance by armed groups with international humanitarian law and international human rights law’, paper delivered at the Armed Groups Conference, Vancouver, 13–15 November 2003.
126 UNAMA, above note 12, p. i (emphasis added).
127 Preferably without the crude propaganda-like language that all too often characterizes entries on ISAF's website.
128 Article 3(3) of the Geneva Conventions.
129 ‘The stated committee should [be] given a free hand to survey the affected areas as well as people in order to collect the precise information and the facts and figures and disseminate its findings worldwide’. Cited in Jon Boone, ‘Taliban call for joint inquiry into civilian Afghan deaths considered: UN and Nato cautiously consider proposal, which follows reports of high levels of civilian deaths caused by insurgents’, in The Guardian, 16 August 2010, available at: http://www.guardian.co.uk/world/2010/aug/16/taliban-afghan-civilian-deaths-nato-un (last visited 18 January 2011). This echoes the common provisions of the Geneva Conventions whereby a party to an international armed conflict is entitled to request an inquiry into any alleged violation of the Conventions (GC I, Art. 52; GC II, Art. 53; GC III, Art. 132; and GC IV, Art. 149).
130 Efforts to bring the long-standing conflict to an end through negotiation have increased in recent months. In March 2010, the Afghan President, Hamid Karzai, met, for the first time, a delegation from the country's second biggest militant group, Gulbuddin Hekmatyar's Hizb-I-Islami, to discuss the possibility of a peace agreement. BBC, ‘Afghan Hezb-e-Islami militants hold peace talks in Kabul’, 22 March 2010, available at: news.bbc.co.uk/2/hi/8579380.stm (last visited 18 January 2011). In November 2010, the group reportedly told the BBC that they would agree to a ceasefire if the US forces remained in their bases. Syed Shoaib Hasan, ‘Afghan rebel group offers truce terms’, in BBC News online, 18 November 2010, available at: http://www.bbc.co.uk/news/world-south-asia-11773520 (last visited 18 January 2011). At a peace conference in Kabul in June 2010, the President announced the creation of a High Peace Council to start a dialogue with the Taliban. BBC, ‘Afghan Peace Council begins bid for talks with Taliban’, 7 October 2010, available at: http://www.bbc.co.uk/news/world-south-asia-11494247 (last visited 18 January 2011). On 11 October 2010, the Afghan President confirmed that ‘unofficial contacts’ with the Taliban had been taking place ‘for quite some time’ to end the insurgency. See, e.g., BBC, ‘Afghan President Karzai confirms Taliban “contacts”’, 11 October 2010, available at: http://www.bbc.co.uk/news/world-south-asia-11511866 (last visited 18 January 2011); and BBC, ‘Nato's “safe passage” for Taliban’, 15 October 2010, available at: http://www.bbc.co.uk/news/world-south-asia-11553388 (last visited 18 January 2011).
131 In response, Amnesty International warned that ‘Plans for a peace deal with the Taleban in Afghanistan could seriously jeopardize the rights of the Afghan people, in particular Afghan women, unless concrete human rights benchmarks are incorporated’. Amnesty International, ‘Afghanistan conference raises fears of sacrificing rights for short-term peace’, 19 July 2010, available at: http://www.amnesty.org/en/news-and-updates/afghanistan-conference-raises-fears-sacrificing-rights-short-term-peace-2010-07-19 (last visited 18 January 2011).
132 In its August 2010 report, the UN called on the Taliban and other ‘Anti-Government Armed Groups’ to ‘withdraw all orders and statements calling for the killing of civilians, including civilian Government officials; adopt and enforce codes of conduct or other directives that prohibit any and all attacks on civilians; accept that civilians’ cooperating with the Afghan Government and International Military Forces are protected against any attack and immediately cease targeting those civilians'. UNAMA, above note 12, p. v. It appears that this call has so far been rejected, given that apparently after the report was published the Taliban issued an updated ‘Islamic Emirate of Afghanistan Rules for Mujahideen’ that included a determination that anyone working for coalition forces or the Afghan government was a legitimate target. CBC News, ‘Taliban issue new code of conduct’, 3 August 2010, available at: http://www.cbc.ca/world/story/2010/08/03/conduct-code-taliban.html (last visited 18 January 2011).
133 UNAMA, above note 12, p. 1.
134 It appears that, often (but by no means always), IEDs are command detonated and that attacks are co-ordinated against ISAF troops. See, e.g., Landmine and Cluster Munition Monitor, ‘Afghanistan country profile, mine ban policy: use’, last updated 4 October 2010, available at: http://www.the-monitor.org/index.php/cp/display/region_profiles/theme/476 (last visited 18 January 2011).
135 In October 2010, the UK Foreign Secretary, William Hague, told Sky News that IEDs posed the biggest threat to Britain's armed forces in Afghanistan: ‘These are the main threats to our forces – these are the weapons of choice of the Taliban. … So we are spending a lot on improving the protection of vehicles, on having some remote controlled vehicles and, of course, a lot of military effort goes into detecting and disrupting the networks that make and plant the IEDs’. Andy Jack, ‘IEDs are biggest threat to UK forces – Hague’, in Sky News Online, 21 October 2010, available at: http://news.sky.com/skynews/Home/World-News/Foreign-Secretary-William-Hague-Says-Taliban-IED-Roadside-Bombs-Biggest-Threat-To-UK-Forces/Article/201010315764166?f=rss (last visited 18 January 2011).
137 Ibid., p. 2.
138 With respect to perfidy, according to the ICRC customary law study: ‘Killing, injuring or capturing an adversary by resort to perfidy is prohibited’. J.-M. Henckaerts and L. Doswald-Beck, above note 79, Rule 65. Perfidy is defined in Additional Protocol I as ‘[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence’ (Art. 37). Thus, simulation of civilian status by a suicide bomber to enable him or her – according to UNAMA, above note 12, p. 4, the first ever reported suicide attack in Afghanistan that involved a female occurred in Kunar province on 21 June 2010 – to reach military personnel in safety would fall within this prohibition. This may be the case in many, probably even the overwhelming majority, of instances.
139 ‘Rule 41- Make sure you meet these four conditions in conducting the suicide attacks: A- Before he goes for the mission, he should be very education [sic] in his mission. B- Suicide attacks should be done always against high ranking people. C- Try your best to avoid killing local people. D- Unless they have special permission from higher authority, for every suicide attack must be approved by the provincial authority’. Rule 46 also includes a general order that bombers must do their best to avoid civilian casualties. See Program for Cultural and Conflict Studies, above note 32, p. 3.
140 A. Clapham, ‘Human rights obligations of non-state actors in conflict situations’, above note 103, p. 512.
141 See some of the rules of the 2006 version of the Taliban's code of conduct: ‘(24) It is forbidden to work as a teacher under the current puppet regime, because this strengthens the system of the infidels. True Muslims should apply to study with a religiously trained teacher and study in a Mosque or similar institution. Textbooks must come from the period of the Jihad or from the Taliban regime. (25) Anyone who works as a teacher for the current puppet regime must receive a warning. If he nevertheless refuses to give up his job, he must be beaten. If the teacher still continues to instruct contrary to the principles of Islam, the district commander or a group leader must kill him’. Reproduced in Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 21, p. 17.
142 UNAMA, above note 12, p. 5.
143 Thus, according to UNAMA, in 2009–2010, ‘AGEs controlled the civilian population through a range of measures often involving violence, assassinations and abductions’. UNAMA, above note 12, p. 1. Fergusson presents another side to the Taliban, claiming that the ‘official provincial government simply could not compete with the services the Taliban offered – particularly … when it came to the administration of justice. A villager involved in, say, a local land dispute, used to have to bribe every official and wait months before a resolution could ever be reached. By stark and shameful contrast, the judgments of the Taliban's Sharia councils were instant as well as free’. J. Fergusson, above note 6, p. 144.
144 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, above note 21, para. 42.
* The views expressed in this article are those of the authors and do not necessarily reflect those of the Geneva Academy. The authors wish to thank Professors Andrew Clapham and Marco Sassòli for their useful comments and insights on a draft of this article.
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