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09-30-2008, 03:32 PM
Defending Hamdan - Comments - part 1

The Complex Terrain Laboratory completed last week a five-part article by Brian Glyn Williams, "Defending Hamdan". Williams was an expert witness for Hamdan's defense team. The article has some controversial points (IMO).

The links to the five-part article are here:

Brian Glyn Williams' account of his experience as an expert witness in the Guantanamo Bay trial of Salim Hamdan, "bin Laden's driver", in five instalments.
Part I: Bin Laden's Driver
Part II: On Ruffling Establishment Feathers
Part III: Letter and Spirit of the Law
Part: IV: Digging Deeper for the Defense
Part V: Trial and Verdict
Full Text (Parts I-V)


I owe this one to Selil, who advised me of it last week.

As I started writing this part yesterday (12:00 29 Sep), five comments were up at terraplexic review (url above). Here are snips from their leads, which suggest some topics for discussion here:

Combatant Status of the Ansars
For my part, I want to focus on the distinction between lawful and unlawful combatancy, which was at the core of Hamdan’s defence strategy.

The Flexibility of the Military Commissions
The military commissions now operating at Guantanamo Bay are more flexible than the federal civilian courts established pursuant to Article III of the Constitution.

A Minute Focus on Uniforms
It has been fascinating reading Brian William's brief account of this trial. I am writing from Cairo where I'm in the middle of a quick stint of anthropological fieldwork, and as I hoof about this hot and smoggy but cheerful city chatting with people, I'm reminded daily of the truth of what Brian writes about when he says that one of the major issues at stake in trials that test the legality of Guantanamo is the international image of the U.S.

Lipstick on a Pig?
I also agree that it provides some indication that at least the US officer corps can maintain a level of impartiality despite the interest of the civilians in the Defense Department for manipulating the process. The verdict has caused me to wonder even more about the views of the officer corps regarding Iraq, the War on Terror, and the longer term implications these views will have for military morale.

Out Here On The Perimeter
The outgoing U.S. administration has not had a smooth ride in 2008. In June, the Boumediene v. Bush decision restored the constitutional right of habeas corpus to detainees at Guantanamo Bay . It also challenged the constitutionality of the Military Commissions Act (2006), the first example of which – the trial of Salim Ahmed Hamdan – ended with only partial victory for the administration. It also called into question both the status of the commissions and of 'unlawful combatants'.

There are many more points in the article (and the above links) that can be addressed pro & con.

Any takers ?

09-30-2008, 03:39 PM
The "Out Here On The Perimeter" comment (url in part 1) points to some more links, which are worth reading for their own opinions:

The thrust of the Corn article (below) is the need to articulate a clear standard for what is a "war" - since, without a "war", how can we speak of "war crimes" ?

The Hamdan Trial: Can Three 'Rights' Correct a 'Wrong'?
JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that Salim Hamdan's recent military commission trial - in which he was called as an expert witness for the defense - should remind us that true legitimacy for the US military commissions has never been and will never be defined by the role of the military in the commission process, but instead by the process that civilian leaders create for that role...


The thrust of Marty Lederman's comment (below) (I think I referenced it somewhere in "War Crimes") is similar to Corn's - "what is a war"; as well as whether the Ex Post Facto Law Clause applies. He raises this point, which should be of interest to all serving military officers - especially those in special ops - and to those in the CIA who are responsible for paramilitary activities:

.... But what's the theory under which it [delivery of weapons in a war zone] is a war crime? The government's argument is that any attempt, like this one, to aid in the killing of U.S. forces on a battlefield is a violation of the laws of armed conflict if it is committed by an unprivileged combatant, i.e., a nonuniformed person.

This is a fairly radical theory -- that any belligerency by nonprivileged persons is itself a war crime. If I'm not mistaken, it would mean that CIA officials and many U.S. Special Forces are not only regularly violating the domestic laws of the nations where they operate, but are committing war crimes. Can that be right? .....


Marty Lederman's post (like "Out There") also refers to this post by Heller, which is a good example of "special pleading" (IMO). It generated 27 comments - some worth reading.

Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause
by Kevin Jon Heller
As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal. Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not. ....


This is a very short (non-legal comment) by Patrick Lang, with this little message to all you colonels and prospective colonels out there:

Hamdan will be released before the end of the year [JMM: we shall see]. The six officers have all had soldier or sailor drivers. They decided that they knew what the role of a driver is, and that this role did not justify further confinement for Hamdan. ...
The prosecution sought to use this military commission to communicate a message to the world. This message was to be that any association with any group the United States chooses to call "terrorist" will lead, at the least, to a long, long prison sentence.

The prosecution's, and presumably the Bush Administration's, desire to send that message was thwarted by six officers who preferred justice. Colonels can be unpredictable people.


Andy Worthington has written many, many articles on GWOT, OEF and OIF - all of a very critical bias - so, there were no surprises here - it does provide a decent picture of what happened at the trial (AW's opinions aside, IMO):

A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict ....


Also in the critical catagory is this from Dave Glazier at National Security Advisors ("A national security law blog"), which sets out the issues and does not "brief" them:

The Hamdan Verdict - A Government Stroke of Fortune?

The verdict returned by the trial panel (no one should ever mistake a group hand selected by the authority responsible for the decision to prosecute as a "jury') in Guantanamo today reflects extremely well on the six officers given the unenviable task of participating in a badly flawed system. The government is already proclaiming the outcome as vindication of the commission process. The ironic reality is that the partial verdict - conviction on five specifications of providing material support to terrorism but acquittal on the charge of conspiracy and three other specifications of providing material support - is actually a much better outcome for the prosecution than a more complete conviction would have been. By limiting the grounds on which the defense can appeal, the verdict as returned largely saves the government from its own egregious overreaching.


Glazer also (as does Marty Lederman above) comments on this:

The judge's instructions to the trial panel, which failed to state that delivering missiles to be used against military forces constitutes a war crime also ultimately works to government advantage in my view. If the government had prevailed on this point, it means that everyone from Ronald Reagan to Charlie Wilson, to my colleagues at the Pentagon during my service in the South East Asia branch of the Joint Chiefs of Staff in 1984-85, to the CIA folks involved in supporting the Mujahidin in Afghanistan during the Soviet Afghan war are war criminals. While U.S. prosecutions for such conduct are obviously unlikely, such an outcome could have consequences from emboldening nations like Russia to press charges to the more mundane but perhaps real possibility that they might persuade some U.S. judges to overturn the conviction to avoid attaching this stigma to fellow Americans.

Of course, saying that something is so doesn't make it so, since one can find exceptions to every rule.

The question is what are the rules ? We all can probably agree that modern warfare - especially in its paramilitary aspects - has raced far ahead of the neat, little boxes contemplated by the GC, etc. They have about as much direct relevance today to unconventional warfare, as the neat, little boxes at Waterloo have today to conventional warfare.

09-30-2008, 03:39 PM
I think the perspective Williams brings is very interesting. Less vitriol and more analysis than the press has provided. Of course, he was there and was a witness. I think the near lack of prosecutorial vigor in the case towards Williams is interesting. With cases like Frye, Daubert, Kumho hanging out there simplistic challenges to his assertions as an expert could have been made but weren't. I'm no attorney or an expert in military affairs but I have sat through hundreds of court cases and I did not even perceive some of the normal courtroom wrangling yet the prosecution puts up a host of counters. I guess that puts me in the position of being much of what I sound like. Confused. That is not a good situation when looking at any court proceeding.

09-30-2008, 04:03 PM
Two more comments have been posted at terraplexic. One is very succinct, by Tony Waters,

Trials as Ritual Mechanisms
Tony Waters
Trials themselves are ritual mechanisms through which governments demonstrate the legitimacy of their power (what Max Weber called the “monopoly of the legitimate use of physical force in a given territory”). The advantage of jury trials, including that of Hamdan, is - as de Tocqueville wrote - that they tell everyone who's in charge, since "He who punishes the criminal is therefore the real master of society." In a slow but imperfect fashion, the Hamdan trial may be signaling that the executive branch of government is no longer the unquestionable master of society, at least when it comes to the War on Terror. Independent judicial review may be returning.

I don't think it (independent judicial review) ever really disappeared, but it certainly is now rearing its head (which, IMO, seems a good thing). Of the three branches, the Federal judiciary is the weakest branch. It is dependent on Congress for financing and organization of its courts. It is dependent on the Executive for enforcement of its decisions ("John Marshall has made his decision. Now, let him enforce it."). Its primary power is the credibility of its decisions.

The second comment is by one Marc Tyrell (Le Canada ...),

....As I read it, I found myself having several reactions which made me want to examine some of the presuppositions behind the entire military tribunal system and, especially, as it applies to those being held in Guantanamo Bay. ...
My first question, then, would be “when does a non-state actor become a state”? Or, to phrase it subtly differently, when does world opinion hold that the use of violence by a specific, identifiable group, shift to the point that the rules applied to its use of violence are those of “international relations” (e.g. “lawful combatants”) rather than those of a single, sovereign, legal system (e.g. “unlawful combatants”)? ...
.... my second question: why should any group accept the state-based conceptualization of international relations?

This question is especially important when one considers that the post-Westphalian concept of a “society of states” is based on a radically different religious, historical and cultural view of “reality” from that of much of the world today. And, possibly more importantly, when the force a transnational non-state actor can now apply is much greater than at any other time in our species history thanks to the growth of global integration in economics and communications and the increased development of diaspora communities? ...
My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?

Both posted at


09-30-2008, 07:16 PM
from Marc Tyrell in his comment at terraplexic

My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?

First of all, this is two questions in one, which can be separated as follows:

1. What possible interpretation of international law allows one sovereign nation to charge the citizens of another sovereign nation under a national, as opposed to an international, legal system?

2. What possible interpretation of international law allows one sovereign nation to detain the citizens of another sovereign nation under a national, as opposed to an international, legal system?

Many "interpretations" allow the results. Here is a brief explanation.

The first question hunges on jurisdiction to prescribe (legislate). The simplest case is territorial jurisdiction. I go to Canada and murder someone. Canada can legislate that anyone who murders someone while both parties are within its territory can be charged and tried in a Canadian court. Assuming I haven't fled Canada, Canada can also detain me under its territorial jurisdiction.

Marc's question goes beyond this simple case to the more complex issue of extraterritorial jurisdiction; that is where the crime involves acts or omissions outside of the nation's territory, and the criminal is located outside the nation's territory. BTW: a nation's territory is geographic; but may extend outside of its geographic territory to such things as ships, planes, space craft, diplomatic enclaves ("constructive territorial jurisdiction", "extended territorial jurisdiction", "quasi territorial jurisdiction", etc.). Assume that is not involved (let us not get into Gitmo and US foreign bases, right now).

Four bases in international law exist as justifications for exercise of extraterritorial jurisdiction to prescribe (legislate).

1. Effects-based jurisdiction. I stand in Michigan and shoot someone in Canada. Canada can legislate that as a Canadian domestic crime.

2. Protective jurisdiction. Similar to effects-based jurisdiction, this basis allows a state to criminalize conduct directed at the state from outside of the state. I sit in Michigan at my computer and direct a conspiracy to overthrow Canada's government. Canada can legislate that as a Canadian domestic crime.

3. Passive-personality jurisdiction. "Passive personality is also known as passive nationality because it refers to the nationality of the victim, while active nationality refers to the nationality of the perpetrator." I murder a Canadian national anywhere in the world because I don't like Canadians. Canada can legislate that as a Canadian domestic crime - Mexico, in fact, has done just that.

4. Universal jurisdiction. I commit a crime regarded as heinous by Canada anywhere in the world - e.g., piracy on the high seas. Canada can legislate that as a Canadian domestic crime. The German Code and others have expanded that concept into war crimes, etc.

The second question hinges on jurisdiction to detain. That is obvious where the criminal is within the territorial jurisdiction of the detaining nation. If not, then the practical problem is how to get the criminal before the domestic court - physical control over that person.

So, we have extradition (formal), rendition (informal) and extraordinary rendition (kidnapping, in effect). The situation where a nation's military invades another nation, or occupies it (different legally from a simple invasion), provides a fourth means of obtaining custody of the criminal - if he falls into the hands of the invading army.

Now, the two questions and their answers lead to quite different results when the criminal appears before the domestic court, since question 1 goes to the subject matter jurisdiction of the court, while question 2 goes to the court's personal jurisdiction over the person charged.

If there is no subject matter jurisdiction, the case must be dismissed. So, the issues are

(1) Can Canada legislate the charge as a Canadian domestic crime (most likely, especially if under jurisdictions 1 & 2); and

(2) Has Canada legislated the charge as a Canadian domestic crime (depends on interpretation of the statute, or common law).

As to personal jurisdiction, a court may or may not dismiss even if the means of obtaining custody of the person were "extreme". Yes, persons kidnapped from foreign countries have been successfully tried. That is a messier area of the law.

The international law of jurisdiction to prescribe (legislate) is nicely summarized in this survey article:

FindArticles > Washington and Lee Law Review > Fall 2002 > Article > Print friendly
Script kiddies beware: The long arm of U.S. jurisdiction to prescribe
Eisinger, John
This Note concludes that the effects principle allows the United States to prescribe laws against releasing viruses that substantially affect U.S. computers. [42] Furthermore, the protective principle is applicable in cases in which a computer virus specifically targets the U.S. government. [43] However, because passive personality is not as well recognized, it may provide additional justification for jurisdiction, but rarely would justify jurisdiction by itself. [44] Although universal jurisdiction enjoys wide acceptance, it does not cover computer viruses and therefore is not applicable. [45] In addition to having jurisdiction, it is reasonable for the United States to exert its jurisdiction in cases in which a virus substantially affects the United States or targets the United States government, and in which the country of the virus's origin is unable to prosecute. [46] Finally, this Note concludes that Congress intended the 1994 Act to apply extraterritorially. [47]

42. See infra notes 141-49 and accompanying text (explaining how effects principle applies to computer viruses).
43. See infra text accompanying notes 184-94 (noting how computer viruses can invoke protective principle).
44. See infra notes 220-34 and accompanying text (maintaining that passive personality is not well suited for computer viruses).
45. See infra notes 257-60 and accompanying text (concluding that computer viruses do not implicate peremptory norms and thus do not justify universal jurisdiction).
46. See infra notes 307-09 and accompanying text (determining that extraterritorial jurisdiction does not offend international comity in computer virus cases).
47. See infra notes 330-31 and accompanying text (arguing that Congress intended 18 U.S.C. [sec] 1030 (1994) to apply extraterritorially).


What is nice about this article is that it is without the excess baggage and political spin that tend to obscure articles specifically written about detention and trial in GWOT matters.

10-01-2008, 04:23 PM
Thanks for the answer, JMM - I appreciate it :D.

Let me toss out an hypothetical situation. Let us suppose that we have a crime judged as heinous by one nation (your point 4 Universal Jurisdiction"- say "blasphemy" - that is either not regarded as "heinous" (or is defined radically differently) by either your country of citizenship or by your country of current residence. In our opinion, could a valid argument be made to support the extraordinary rendition of the person so named? In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?

10-01-2008, 08:18 PM
Your question combines a multiplicity of questions. Lawyers like neat, little boxes to start with (no matter how much we bitch about them), since we can then test for possible solutions - and exceptions. Anyway, here is a hypothetical, which covers your facts and a bit more.

Flatland - legislature enacts - blasphemy (defined as X, but NOT Y, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Flatland's courts.

Curvedland - legislature enacts - blasphemy (defined as Y, but NOT X, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Curvedland's courts.

Topsyland - constitution (which supercedes all other laws, national and international) provides - blasphemy (whether defined as X or Y) is NOT a crime; no Topsyland national shall be detained, charged, tried or convicted for blasphemy anywhere in the world; and any such action by any other nation shall be considered an act of war against Topsyland.

Now, recalling that jurisdiction to prescribe (legislate) is separate from jurisdiction to detain, we have to start with jurisdiction to prescribe (legislate). From a domestic law standpoint, each nation will consider its law to be correct. Thus, a stalemate between Flatland and Curvedland; and Topsyland's ICBMs will be aimed at both of the other nations. Can I Law provide an answer ? Maybe.

First we look to substance and then to procedure. As to substance, the basic rule is that Universal Jurisdiction applies to crimes made "heinous" by a vast majority of nations (no set number or percentage, since there is no International Constitution). Assuming the three nations are representative of the world, blasphemy cannot be a crime of universal jurisdiction because there is nothing approaching a common rule. Hence, only Topsyland has it right on that point.

Note that this scenaero could turn on its head if, in fact, most nations regarded X as blasphemy, Y as NOT, and that Topsyland should be regarded as an atheistic pariah nation.

The procedural devil is in the details - and the detail here is how does one enforce our hypothetical I Law principle (blasphemy is not a crime of universal jurisdiction). Unless the nations have in one way or another agreed to submit the issue to an international body with enforcement powers, that principle will not be enforced except by nations, individually or collectively.

Extraterritorial enforcement by nations, individually or collectively, of what it or they believe to be the correct I Law principle is problematic because it clashes with the general I Law principle that "Thou shall not infringe on the domestic sovereignty of any nation" - and there are also a zillion limitations on the use of armed force, etc. So, in a world where there are shifting alliances, etc., I Law is an ideal and not a reality.

Now, let us take Flatland which wants to enforce its law extraterritorially against a national of Plateauland, who has blasphemed by saying X. Now, there are few imaginary situations we can posit for Plateauland:

1. Plateauland has the same law as Flattland. In that case, Plateauland probably will prosecute anyway; and everyone in Flatland and Plateauland will be happy - except the blasphemers.

2. Plateauland has no law on blasphemy, but believes X is blasphemy because of its religious beliefs. Now, we have a split again depending on the facts. If the blasphemer is a Plateauland national, Plateauland would probably not be willing to hand him over to Flatland by extradition (formal). It is possible that a segment in Plateauland (say, its security police) would be willing to do that - so, we might have rendition (informal). If the blasphemer were a national of Curvedland or Topsyland, extradition might well occur.

3. Plateauland has no law or religious position on blasphemy (assume it is multi-cultural), but has not gone as far as Topsyland. Plateauland is not likely to either extradite or render what it considers an alleged blasphemer to Flatland. Which brings us to your question about extraordinary rendition.

Extraordinary rendition, since it does not have the formal (extradition) or informal (rendition) consent of the nation in which it occurs, is an intrusion into the territorial sovereignty of that nation. Whether it is an act of war or not depends on the extent of the intrusion. For example, the British detention of seaman on US registered ships was regarded as an act of war in 1812 - whether the detentions or the declaration of war would be valid under present I Law is another question.

Note that traditionally the remedy for the intrusion is left to the nation whose territory has been violated - it may not care. Also, extraordinary rendition may or may not be a defense for the person rendered, since a domestic court may not care about the means used to bring the criminal before it.

Finally, we might have some nation decide that extraordinary rendition is a "heinous" crime subject to universal jurisdiction - in which case, around and around we go again.


In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?

Yes, depending on the facts, of course. BTW: throw out the term "undeclared war" - it is not material to I Law which deals with "armed conflict". It may or may not have relevance in domestic law.

PS: General hypothetical questions are not particularly useful here. It would be better to set out the facts of an actual case and deal with them.

10-01-2008, 10:03 PM
Thanks again JMM.

BTW, I'm explaining why I phrased the questions the way I did in my next post at the symposium.

10-02-2008, 03:27 AM
Legitimacy as a Battlespace
As a note, I should point towards an absolutely excellent answer to my final question was recently posted at the Small Wars Council (thread; post) by JMM99, who is following the CT Lab symposium (and enjoying "educating" me).


and now, I'm going to have to live with being judged by a standard of "absolute excellence" - a standard that will not be met. In any event, thank you for the kind words - I think.

Your factual point in your post above, which is ..

For most people, I suspect that the idea that a person can be taken from their home in one country and charged by another nation under its domestic laws (and without their same protection) is terrifying. Not only is it terrifying, it will, inevitably, undermine the perception of a rule of law, especially if the "law" can be changed and those changes applied retroactively. This strikes at the heart of the perception of a legal system as "legitimate", by attacking people's perceptions regardless of the actual legality of the action.

certainly has perceptive reality - especially with the caveats you list:

1. "without their same protection" - not necessarily fatal in legal logic: that is, to say, US citizens will receive greater rights when prosecuted for the same crime than aliens (JW Lindh vs. Hamdan) - after all, JWL received a longer sentence (and that, after a plea bargain !). Where it becomes more than a capillary cut is where the perception previously created is just the opposite. For years, the US admins (joined often times by the courts) have pushed the concept that we treat everybody in the world the same - you're all just as good as US citizens - one fuzzy, cuddily little world. We are all citizens of the world ! When reality crashes against that perception, we are getting into arterial cuts - from an agitprop, not legal, standpoint.

2. "especially if the "law" can be changed" - again not necessarily fatal from either a legal or agitprop standpoint. In fact, it could be a plus - admission of a screw-up should be regarded as a strength, not a weakness. In our current culture, admission of error seems not the norm - unless an abject apology keeps you out of the Big House, or mitigates the punishment. Admittedly, the sad legislative and administrative history of DTA and MCA is not a good example of how to admit error and to correct them. In fact, the changes seem to have created an even bigger sinkhole, which ended up being tossed in the laps of the DC District and Circuit judges.

3. "and those changes applied retroactively": - I haven't talked about that much in "War Crimes". No definitive decision has held the Ex Post Facto Law Clause applicable. SCOTUS may have to decide that issue. I have a bias there, to the extent that I (like Robert Taft, Sr) questioned the validity of Nuremberg and Tokyo - because of the ex post facto doctrine, despite the very real crimes charged. Having said that, I also have to recognize the WWII War Crimes Trials as precedents, which seem controlling here - since their judgments gave fair warning to future man-eaters.

My bottom line feeling (just that) is that the DTA-MCA system can be salvaged - but it will take people like M.J. Keith Aldred and the working DC judges to do it. While some at terraplexic look at what happened after 9-11 as "seige mentality", I look at the legal aspects largely as a matter of incompetence; and a refusal to admit reality when that reality did not fit the perception that was desired.

10-02-2008, 03:40 AM
Can you be partly pregnant ?

Absurdities, Ironies, and Other Observations
Brian Glyn Williams
Oct 1, 2008 at 4:50

As to Marc Tyrell's question of "when does a non-state actor become a state," in the case of Al Qaeda in Afghanistan, it had become a state-within-a-state by about 1998. Bin Laden and his commanders sat in on Taliban shuras (councils), helped formulate foreign and domestic policies, and may have made up as much as 20% of the Taliban fighting force in many campaigns. The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense (although I would argue that the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11).


He makes the same points in his main article.

Some legal comments (fairly brief) here.

1. The Taliban was not a state; AQ was not a state, within or without Taliban. Afghanistan was and is the state (nation). Williams (who should know better) is confusing a government (recognized or not) with a state (nation). Once a nation is recognized by the international community, that nation continues until it is absorbed in another nation (and becomes part of that state), or partitions itself into two or more nations (e.g., Russias's claim as to S. Ossetia and Abkhazia). That basic I Law 101 rule applies even if the nation has no government - a case which Afghanistan approached on 9-10-2001.

2. The Taliban was not generally recognized as the government of Afghanistan. True, it controlled a large amount of its territory (85% ?), but hostilities were still in process. Lest we get into the different concepts that supposedly control recognition (it is ultimately a political question) - de jure vs. de facto; legitimate existence vs. effective existence, etc., I have a few factual questions about the Taliban (and AQ's Ansar "brigade"), which avoid the recognition issue:

Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance,
US and allied forces ? If so, make your case - prove it

If you wonder why I am asking these questions, consult the Reporter's Notes to common Article III and preceding Articles I & II of the 1948 GCs.

3. Agree factually on the AQ influence within Taliban. Happened to be re-reading vol 1 of the Pentagon Papers the other night - a cure for insomnia - about the VM and VC organizational structure and control of their Popular Fronts. Now, if AQ happened to be an international war criminal organization, would not that make Taliban part of that conspiracy - because, as Williams says: "The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense [of AQ participation in Taliban]. Cite: Numerberg judgments on international criminal organizations.

4. Agree factually that "... the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11." Yes, they all were run through basic training and the foot-soldiers were separated from those who were suited to special operations. The same argument was made at Nuremberg - that the Waffen SS should be distinguished from the Gestapo and the executioners. That argument didn't work then - why now ?

Comment (very much IMO)

The first principle of trial work is primacy - the attack is aimed at the arteries (head and heart shots are rare) as soon as you find a seam (open door), taking your best shot (or shots, if you can MIRV your attack). Never go after the capillaries, except to probe for a seam.

Applying that principle, the prosecution in the "War Crimes" cases should have been directed to go after the senior man-eaters (KSM, etc.), with everything that the Nuremberg and Tokyo precedents would allow - AQ as an international criminal organization, aggressive war, crimes against humanity and run of the mill war crimes where applicable. You either win that or you don't - nothing ventured, nothing gained.

Instead, the initial attack was aimed at such as Hamdan (partly cleared) and Parhat (wholly cleared) - the most sympathetic cases (for the defense) that could have been selected.

Consider that for a moment.

10-02-2008, 03:46 AM
What about the Indian Tribes of the United States? They are an association of nations within the United States and have limited sovereign powers. I don't believe they've ever been recognized by anybody yet they are given that status.

10-02-2008, 01:15 PM
Hey Selil,

Actually know a bit about that topic, but it will move us off-topic here. They do have a special status - similar to that of ASSRs in the old Soviet Union.

I'll send you a PM on that.

10-02-2008, 01:24 PM
Since this Article will enter into the discussion, everybody might as well have access to it without having to search the Red Cross website.

The text of Article 2 is short, but has a much longer legislative history which is reflected in the Commentary.

1949 GC III - Treatment of Prisoners of War - Article 2

Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention 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, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The Commentary is generally held to be pursuasive, but not binding on a court, when considering the text of the Convention

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Part I : General provisions

[all snips in this and following parts are from pp.19-27 of the Commentary]


.... Since 1907 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being preceded by any of the formalities laid down in the Hague Convention.

Furthermore, there have been many cases where Parties to a conflict have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as a result of annexation or capitulation has been put forward as a pretext for not observing one or other of the [p.20] humanitarian Conventions. It was necessary to find a remedy to this state of affairs and the change which had taken place in the whole conception of such Conventions pointed the same way. The Geneva Conventions are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties, and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. ...
But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand, and a belligerent, or belligerents, not bound by it on the other hand. The ' clausula si omnes ' (4) which was included in the 1906 Geneva Convention -- but which was never invoked during the First World War, although it might appropriately have been in the case of Montenegro -- was omitted in 1929. But although the Convention was binding upon the Contracting States in their relations as between each other, they were still under no obligation in regard to States which were not parties to that instrument. The ideal solution would obviously have been that all the Parties to a conflict should be obliged to apply the Convention in all circumstances, i.e. even if the adversary was not a party to it, and despite the fact that the Convention would be a ' res inter alios acta ' for the latter.

There could be no question of reverting to the ' clausula si omnes ', which had fortunately been abandoned in recent times, since it no longer corresponded to humanitarian needs. The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that "in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto". Thus the provisions concerning prisoners of war were given the binding force of which they had been deprived by the solutions adopted at the Peace Conferences. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.
Although from the legal point of view there was no way to extend the scope of the Convention, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2 :

"In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (5)

[p.22] The Diplomatic Conference also considered two other proposals (6) -- one, from the Canadian Delegation, suggesting that the Convention should also be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."

The fact that there was no objection to this principle was a sure sign that the time was ripe for this step forward in international law. The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.

The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (7).

(4) [(1) p.21] Clause providing that obligations are binding on a belligerent only of ' all ' the belligerents on the opposing side (principal adversary and allies of that adversary) are also bound by the same obligations;

(5) [(2) p.21] See ' Remarks and Proposals submitted by the International Committee of the Red Cross, ' p. 9;

(6) [(1) p.22] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 53-54 and 107-108;

(7) [(2) p.22] Ibid., Vol. II-B, p. 108 (First Report drawn up by the Special Committee of the Joint Committee);

Rather long, but the history of the "accept" and "apply" clause has special relevance here.

10-02-2008, 01:28 PM

Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention 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, even if the state of war is not recognized by one of them.



By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] to the application of the Convention. The occurrence of de facto hostilities is sufficient.

It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence.

The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces (8) is an armed conflict within the meaning of Article 2 , even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 . Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

(8) [(1) p.33] This was the Special Committee of the Joint Committee. The provision in question was discussed, first as Article 2, paragraph 4 (i.e. with the numbering it had in the Stockholm draft), and later as Article 2A. See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 40-48, 75-79, 82-84, 90, 93-95, 97-102;

This is self-explanatory - the key is that a "declared war" is not a material factor.

10-02-2008, 01:32 PM

Art 2. ...
.... The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.



This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

While not expressly mentioned in the Commentary, Art. 2, para 2 has obvious application to a situation where two factions (each claiming to be the legitimate government of a "High Contracting Party", assuming the nation in question previously adopted the Convention) are fighting over that nation's territory. In that case, only one of them can be the legitimate government (and representative of the "High Contracting Party") of the nation. The other faction would be covered as a "Power" to the conflict by Art. 2, para 3.

The situation would be altered factually (and somewhat legally) if one of the factions claimed that it was forming a new nation (state). In that case, the other faction would continue as representative of the "High Contracting Party", and the "new nation" faction would still be covered as a "Power" to the conflict by Art. 2, para 3.

Afghanistan 9-10-2001 involved either situation 1 or 2. Post 9-11-2001, a number of "High Contracting Parties" entered the picture. Which of them, and for what time frame, was an "Occupying Power" is a mixed question of law and fact.

10-02-2008, 01:38 PM

Art 2. ...
.... Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.



1. ' Relations between belligerents party to the Convention '

This provision appears to state an elementary truth; but that was not always the case. The Hague Conventions of 1907 and the Geneva Convention of 1906 all contained a ' clausula si omnes ' (9), and that provision was in force when the First World War broke out in 1914. But despite the fact that the application of the Convention might have been suspended on the ground that one of the belligerents -- Montenegro -- was not a party to it, all the Contracting States in general honoured their signature (10).

It was essential, however, to clarify the position and to prevent any future recurrence of a situation similar to that of 1914. It should be noted that this problem of relations between opposing Powers is quite distinct from that of the relations between allied Powers fighting under a unified command. The latter case, which is also very important, is considered later in this volume, in connection with Article 12 .

2. ' Relations between Contracting and non-Contracting Parties '

The second sentence, added by the Diplomatic Conference of 1949, has certainly the characteristics of a compromise, for it does not come to a decision between the suspensive and resolutive conditions. At first sight it appears to incline towards the Belgian amendment. But whereas the latter only made the Convention applicable as from the time of its formal acceptance by the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops all reference to an invitation to be made to the non-Contracting Power, and substitutes for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".

What, then, is the position in the interval between the launching of hostilities and the non-contracting belligerent's acceptance?

[p.25] The First Report by the Special Committee of the joint Committee, to which reference has already been made, states: "according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized" (11). This passage shows how this not very clear provision should be interpreted.

The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity to state his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion the only reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character. It is also in accordance with the moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world. It is finally to its advantage from a more practical point of view, because the fact of its beginning itself to apply the Convention will encourage the non-Contracting Party to declare its acceptance, whereas any postponement of the application of the Convention by the Contracting Party would give the non-Contracting Party a pretext for nonacceptance.

There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, it must be seen what is meant by "accepting" the provisions of the Convention (11).

Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration" he wrote "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-contracting belligerent" (12).

[p.26] Does it follow from this that, if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?

Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a monstrous -- situation. It would entitle a Power to disregard rules solemnly proclaimed by itself, while its adversary, though not legally bound to those rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.

' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The Third Convention, like its three sister Conventions, rightly condemns reprisals against persons in the most categorical terms. But would it not be worse than any reprisals to ill-treat prisoners even before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?

The two conditions laid down for the non-Contracting Power are that it should ' accept ' and ' apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may be implicit in de facto application. These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. It is, on the contrary, most desirable that the latter should make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when offering its services at the beginning of a conflict, never fails to ask Parties to the conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its principles, as the case may be.

In practice, any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.

Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, its spirit encourages the Power [p.27] in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be. (13)

(9) [(1) p.24] See above, p. 21;

(10) [(2) p.24] As stated in the Commentary on the 1929 Geneva Convention, "the facts backed by the signatures of the signatories and by the humanitarian interests of all, outweighed the law." Paul DES GOUTTES, ' Commentaire de la Convention de Genève du 17 juillet 1929, ' Geneva, 1930, ad Article 25, p. 188;

(11) [(1) p.25] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, p. 108;

(12) [(2) p.25] Ibid., p. 109;

(13) [(1) p.27] This paragraph of Article 2 was applied during the Suez conflict in the autumn of 1956, when the opposing Parties were Egypt, on the one hand, and France, Israel and the United Kingdom, on the other. Of these, only the United Kingdom was not bound by the Conventions, which it had not yet ratified. Nevertheless, in reply to a telegram from the International Committee of the Red Cross the
British Prime Minister stated that, pending their formal ratification, the United Kingdom Government accepted the Conventions and fully intended to apply their provisions, should the occasion arise. The ICRC informed the other States Party to the conflict of this statement, and none of the belligerents contested the applicability of the Conventions.

The provisions of GC III, Art. 3 are roughly twice as long as the above parts. Those of GC III, Art. 4 are roughly twice as long as those of GC III, Art. 3. I suggest resolving issues under GC III, Art. 2 before attacking the other parts.

10-02-2008, 07:35 PM
This is a boring slog, since all of these documents are much the same. However, they prove how Afghanistan looked at itself as a nation (state).

They also prove that Afghanistan was a state from 1923 to the present - the relevant period in Afghan constitutional history which encompasses the 1949 GCs, to which Afghanistan was and is a "High Contracting Party".

Geneva Conventions of 12 August 1949.
State Parties Afghanistan
Signature 08.12.1949
Ratification / Accession 26.09.1956
Reservation / Declaration - None

Constitution of Afghanistan (1923)

The Constitution of Afghanistan April 9, 1923
Article 1
Afghanistan Is Completely Free and Independent in the Administration of its Domestic and Foreign Affairs. All Parts and Areas of the Country Are under the Authority of His Majesty the King and Are to Be Treated as a Single Unit Without Discrimination Between Different Parts of the Country.


Constitution of Afghanistan (1964)

The Constitution of Afghanistan 1964
Title One
The State
Article 1
Afghanistan Is a Constitutional Monarchy; an Independent, Unitary and Indivisible State. Sovereignty in Afghanistan Belongs to the Nation. The Afghan Nation Is Composed of All Those Individuals Who Possess the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each Such Individual.


Constitution of Afghanistan (1976)

The Constitution of Afghanistan 1976
Chapter Three
The State
Article Twenty: Afghanistan Is a Republican, Democratic, Independent, Unitary and Indivisible State.
Article Twenty One: National Sovereignty in Afghanistan Belongs to the People. The Nation of Afghanistan Consists of All Those Individuals Who Hold the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each and Every Individual of the Nation of Afghanistan.


Constitution of Afghanistan (1987)

The Constitution of Afghanistan 1987
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent Unitary and Indivisible State Having Sovereignty over the Whole of its Territory. The National Sovereignty in the Republic of Afghanistan Rests with the People. The People Exercise National Sovereignty Through Loya Jirga, National Assembly and Local Councils.


Constitution of Afghanistan (1990)

The Constitution of Afghanistan 1990
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent, Unitary and Indivisible and Islamic State, Having Sovereignty over the Whole of its Territory. National Sovereignty in the Republic of Afghanistan Belongs to the People. The People Exercise National Sovereignty Through Loya Jirga and National Assembly.


Constitution of Afghanistan (2004)

The Constitution of the Islamic Republic of Afghanistan
(Ratified) January 26, 2004
Chapter One: State
Article One
Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.
Article Two
The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.
Article Three
No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.
Article Four
National sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives. The nation of Afghanistan is composed of all individuals who possess the citizenship of Afghanistan. The nation of Afghanistan shall be comprised of Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and other tribes. The word Afghan shall apply to every citizen of Afghanistan. No individual of the nation of Afghanistan shall be deprived of citizenship. The citizenship and asylum related matters shall be regulated by law.

OK, all of that proves that Afghanistan has been a nation (state) at all times relevant to this discussion. The next issue is the successive governments of Afghanistan - in short, who had authority to speak for the "High Contracting Party" under the 1949 GCs.

10-02-2008, 07:44 PM

Nur Muhammad Taraki - 30 April 1978 – 16 September 1979
Hafizullah Amin - 16 September 1979 – 27 December 1979
Babrak Karmal - 27 December 1979 – 24 November 1986
Haji Mohammad Chamkani - 24 November 1986 – 30 September 1987
Mohammad Najibullah - 30 September 1987 – 16 April 1992
Abdul Rahim Hatef - 16 April 1992 – 28 April 1992
Sibghatullah Mojaddedi - 27 April 1992 – 28 June 1992
Burhanuddin Rabbani - 28 June 1992 – 27 September 1996, 27 September 1996 – 13 November 2001 (President of the Northern Alliance), 13 November 2001 – 22 December 2001
Hamid Karzai - 22 December 2001 (acting until 7 December 2004 - under 2004 Constitution)

wiki bios start at:


You can just follow along via the links at the bottom of the page.

Chronological History of Afghanistan


United Islamic Front for the Salvation of Afghanistan (Northern Alliance)

http://en.wikipedia.org/wiki/United_Islamic_Front_for_the_Salvation_of_Afghanis tan

Note: these Wiki articles are not cited as evidence - but merely as a quick entry into the timeline and characters.


Head of the Supreme Council of Afghanistan
Islamic Emirate of Afghanistan
Mohammed Omar - 27 September 1996 – 13 November 2001


Islamic Emirate of Afghanistan [1] was the name given to the nation of Afghanistan by the Taliban during their rule, from 1996 to 2001. At the peak of their influence the Taliban never controlled the entire area of Afghanistan, as about 10% of the country in the northeast was held by the United Islamic Front for the Salvation of Afghanistan. [simple map shows area of Taliban control].
Only Pakistan, Saudi Arabia, and the United Arab Emirates ever recognized the Taliban government. Turkmenistan also de facto recognized the Taliban government, as it had official meetings and agreements with Taliban government ministers.

One reason for this lack of international recognition was the Taliban's disregard for international law. One of the first acts of the Islamic Emirate was the killing of the former President of Afghanistan, Mohammad Najibullah. Before the Taliban had even taken control of Afghanistan's capital they sent out a squad to arrest, torture, mutilate and kill Najibullah, leaving his body hanging from a street lamp outside the presidential palace for two days. As Najibullah was staying in the United Nations compound in Kabul, this was a violation of international law.[4] The Taliban regime was also heavily criticised for the murder of Iranian diplomats in Afghanistan[4] [5] in 1998.
[1] Directorate of Intelligence (2001). "CIA -- The World Factbook -- Afghanistan
[4] Mullah Omar : WarlordsofAfghanistan.com [This link adds absolutely nothing of present value]


15 September 1998
Press Release


These facts cut against the Taliban's having authority to speak for the nation of Afghanistan, as a "High Contracting Party" under the 1949 GCs.

The below facts, if true, could lead to another legal theory concerning the Taliban:


The Taliban did not hold elections, as their spokesman explained:

"The Sharia does not allow politics or political parties. That is why we give no salaries to officials or soldiers, just food, clothes, shoes and weapons. We want to live a life like the Prophet lived 1400 years ago and jihad is our right. We want to recreate the time of the Prophet and we are only carrying out what the Afghan people have wanted for the past 14 years. " [32]

Instead of an election, their leader's legitimacy came from "Bay'ah" or oath of allegiance in imitation of the Prophet and early Muslims. On 4 April 1996, Mullah Omar had the "the Cloak of the Prophet Mohammed," taken from its shrine "for the first time in 60 years." Wrapping himself in the relic, he appeared on the roof of a building in the center of Kandahar while hundreds of Pashtun mullahs below shouted "Amir al-Mu'minin!" (Commander of the Faithful), in a de facto pledge of support.

Also in keeping with the governance of early Muslims was a lack of state institutions or "a methodology for command and control" standard today internationally even among non-Westernized states. The Taliban didn't issue "press releases, policy statements or hold regular press conferences," and of course the outside world and most Afghans didn't even know what they looked like, since photography was banned.[33] Their regular army resembled "a lashkar or traditional tribal militia force" with only 25,000 to 30,000 men, these being added to as the need arose. Cabinet ministers and deputies were mullahs with a "madrassa education." Several of them, such as the Minister of Health and Governor of the State bank, were primarily military commanders who left their administrative posts to fight when needed. If and when military reverses trapped them behind lines or led to their deaths, this created "even greater chaos" in the national administration.[34] In the Ministry of Finance there was no budget or "qualified economist or banker." Cash to finance Taliban war effort was collected and dispersed by Mullah Omar without book-keeping.

[32] March 1996 interview in Kandahar with Mullah Wakil, an aide to Omar by Ahmed Rashid, from Rashid's book Taliban (2000), p.43
[33] Rashid, Taliban (2000), p.5
[34] Rashid, Taliban (2000), p.100


Note: I am not citing Wiki as an "expert witness" - the links are simply a quick way for someone to get the general drift of the situation (s) over the years.

Here are the two legal theories which might fit the Taliban 1996-2001:

1. The Taliban was a "Power" in the Afghan conflict - not the recognized government of Afghanistan. Hence, it would have had to accept the GCs and apply them in order to enjoy their benefits under Art. 2.

2. The Taliban, in fact, created a new nation in that large portion of Afghanistan which they controlled. Given the vast divergence of what seems to have been their "organic law" from the norms of the written Afghan constitutons, that is a plausible argument. It does not help them under the GCs since they would then be a non-contracting party. So, we would be back to the requirements of Art. 2 - a "Power" in the armed conflict, who would have had to accept the GCs and apply them in order to enjoy their benefits.

We are back to my four questions, concerning acceptance and application of the GCs by the Taliban and AQ-Ansar.

I am no factual expert on Afghanistan. There should be a zillion people here with factual expertise on the key factual issues. Like to hear from you.

10-12-2008, 01:58 AM
Before going on with what could become a very long-winded series, we might re-capitulate - where have we been and where we are going. In short, what is the end goal here ?

The purpose is to refute (my present view), or to confirm (less likely IMO), the heart of Bryan William's basic argument (post #1 refs): (1) that the Taliban was a nation (state), or alternatively the government of a recognized nation (state; i.e., Afghanistan); (2) that, as a nation or government, the Taliban had armed forces which included AQ's Ansar "brigade" as a constituent part; and (3) that, as such, the "troops" of the Taliban and AQ's Ansar "brigade" were protected persons via GC III, Arts. 2 and 4. The key to the discussion is the correct interpretation of those articles.

GC III, Art. 2 (posts ## 14-16) is primarily based on the concept of a High Contracting Party (a nation which has formally accepted the GCs), introduced in Art. 1, which is bound to abide by the GCs (whether it does so or not is a separate issue). Thus, the terms "party" or "parties" in Art. 2 initially refer to a High Contracting Party (more on Art. 2, para 3, below). Post #17 establishes that Afghanistan, as a recognized nation, was and is a "High Contracting Party" to the GCs.

Art. 2 also recognizes that other groups (not High Contracting Parties) may be involved in an "armed conflict". Thus, all organized groups involved in an armed conflict may fall within the definition of Powers involved in that conflict. For example, the Taliban was clearly a Power in the Afghan conflict (1994-2001), under Art. 2, para 3, (post # 16); and an Occupying Power (once it occupied much of Afghanistan, a High Contracting Party), under Art. 2, para 2 (post # 15).

GC III, Art. 2, para 3 (post # 16), establishes a procedure whereby a Power (not a High Contracting Party) can become a Party (for purposes of Art. 4 and the rest of the POW articles) by accepting and applying the GCs (thus my four questions, post # 10).

Of course, if a Power is or becomes the recognized government of the High Contracting Party (here, Afghanistan), that Power is the representative of a High Contracting Party; it is bound by and entitled to the protections of the GCs; and we proceed directly to GC III, Art. 4.

If a Power does not meet the requirements of Art. 2, para 3, we then have to consider application of common Art. 3 (included in all four GCs).

The recognized governments of Afghanistan have been cut and dried (from the standpoint of US diplomatic recognition) over much of its history. However, the situation during the period 1996-2001 was not so cut and dried (see, post # 18, for the conflicting "governments" in 1996-2001). We will address that period - and those before and after it - in subsequent posts.

As to the Taliban (and AQ's Ansar "brigade", assuming it was part of the Taliban's armed forces), we have the following flowchart:

1. Taliban was the recognized government of Afghanistan - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4); or

2. Taliban was not the recognized government of Afghanistan, but accepted and applied the GCs (as defined in GC III, Art. 2, para 3, post # 16) - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4) ; or

3. Taliban was not the recognized government of Afghanistan, and did not accept or apply the GCs - do not go to GC III, Art. 4 (which cannot then apply), but consider the application of GC III, Art. 3. That has been the stance of the US government; albeit not always well-expressed.

The first step is determination of what group (if any) was the recognized government of Afghanistan during the relevant period (1996-2001). We are dealing with that issue in the context of the US judicial system (Article III Federal courts and US Military Commissions). Thus, we have to abide by the US judicial standard for diplomatic recognition of a government.

Anyone may argue (here or elsewhere) that this or that government was (is) or should have been (should be) the "recognized government" of Afghanistan - whether de facto or de jure, efficient or legitimate, and so on - and even put together a "mock trial" to "adjudicate" the question. However, that argument will fail in a Federal court (see next post).

It is entirely conceivable that a court in another nation could reach a different determination. For example, a Pakistani court (if it followed the same basic rule) would be compelled to hold that the Taliban was the recognized government of Afghanistan during the period 1997-2001 - since that was the position of the Pakistani government.

fn - "new nation". The same requirements and result would apply if it is argued that the Taliban's "state" was a new nation (since, as that nation, it would not be a High Contracting Party to the GCs). Since the US government (Executive branch) never recognized the Taliban "state" as a new nation, that argument would be rejected out of hand by any Federal court following established precedents.

The HAMDAN SYMPOSIUM (Terraplexic) has now closed, without substantial discussion of GC III, Arts. 2, 3 & 4. The Hamdan case is also pretty much history. However, the issues discussed in this long series of posts will return in the forthcoming MCA trials. So, I am proceeding with this as a reference for others and for me as those cases develop.

10-12-2008, 02:02 AM
As you will find from this Wiki article on diplomatic recognition, standards differ among nations once you get beyond the basic definition.

Diplomatic recognition in international law is a unilateral political act, with domestic and international legal consequences, whereby a state acknowledges an act or status of another state or government. Recognition can be accorded either de facto or de jure, usually by a statement of the recognizing government. .....


In US courts, the vagaries of I Law do not come into play in determining whether a government is recognized or not. The courts are required to take judicial notice of the Executive's position on diplomatic recognition of a particular government. That rule is established by many cases - here are two:

United States v. Belmont, 301 U.S. 324 (1937)

Page 301 U. S. 330
We take judicial notice of the fact that, coincident with the assignment set forth in the complaint, the President recognized the Soviet Government, and normal diplomatic relations were established between that government and the Government of the United States, followed by an exchange of ambassadors. The effect of this was to validate, so far as this country is concerned, all acts of the Soviet Government here involved from the commencement of its existence. The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over internal affairs is distributed between the national government and the several states. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty-making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.


United States v. Pink, 315 U.S. 203 (1942)

Page 315 U. S. 229

.... The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States ....

"What government is to be regarded here as representative of a foreign sovereign state is a political, rather than a judicial, question, and is to be determined by the political department of the government."

Guaranty Trust Co. v. United States, supra, 304 U.S. at p. 304 U. S. 137. That authority is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy, as well as objections to recognition, are to be addressed to the political department, and not to the courts. See Guaranty Trust Co. v. United States, supra, p. 304 U. S. 138; 55 U. S. 50-51. ...
Recognition is not always absolute; it is sometimes conditional. 1 Moore, International Law Digest (1906), pp. 73-74; 1 Hackworth, Digest of International Law (1940), pp. 192-195. Power to remove such obstacles to full recognition as settlement of claims of our nationals (Levitan, Executive Agreements, 35 Ill.L.Rev. 365, 382-385) certainly is a modest implied power of the President, who is the "sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Corp., supra, p. 299 U. S. 320. Effectiveness in handling the delicate problems of foreign relations requires no less. Unless

Page 315 U. S. 230

such a power exists, the power of recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs (see Moore, Treaties and Executive Agreements, 20 Pol.Sci.Q. 385, 403-417) is to be drastically revised....


A Federal court will want evidence of which (if any) government is or was recognized by the Executive branch - any other proof or argument is irrelevant.

10-12-2008, 02:07 AM
In following posts, I will quote extensively from various websites (mostly government sites, where copyrights are not an issue) to present a statement of facts outlining the diplomatic history of the US and Afghanistan. Of course, in a judicial proceeding, those same facts would have to be established by expert testimony and certified documents.

Here is a simple example of some evidence which would be presented.

US Embassy - Kabul
About the embassy
History of the Embassy

1) First U.S. Minister to Afghanistan
Name: William H. Hornibrook
Title: Envoy Extraordinary and Minister Plenipotentiary
Presentation of Credentials: May 4, 1935
Note: Accredited also to Persia; resident at Tehran.

2) Opening of Legation Kabul
Legation Kabul was opened Jun 6, 1942 with Charles W. Thayer as Chargé d'Affaires ad interim.

3) Elevation of Legation to Embassy Kabul
Name: Ely E. Palmer
Title: Envoy Extraordinary and Minister Plenipotentiary
Termination of Mission: Promoted to Ambassador Extraordinary and Plenipotentiary Appointment: May 6, 1948 (Elevation from Legation to Embassy)

4) Closing of Embassy Kabul
Embassy Kabul was closed Jan 30, 1989.

Note: The U.S. Liaison Office in Kabul reopened Dec 17, 2001. The United States recognized the Interim Authority in Afghanistan on Dec 22, 2001. Ryan Crocker was appointed Charge d'Affaires ad interim Jan 2, 2002.

5) Robert Patrick John Finn
Presentation of Credentials: April 3, 2002
Termination of Mission: August 1, 2003

6) Dr. Zalmay Khalilzad
Presentation of Credential: November 24, 2003
Termination of Mission: June 20, 2005


This little excerpt is, of course, incomplete for our purposes. We need to know much more about the period 1989-2001.

These following two sources will be quoted extensively in future posts. The urls are cited here, but will not be cited in future posts.

CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy
Updated September 2, 2008
Kenneth Katzman
Specialist in Middle Eastern Affairs
Foreign Affairs, Defense, and Trade Division


Embassy of Afghanistan (Washington D.C.)
About the Embassy


10-12-2008, 02:12 AM
CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy

(pp. 5-7)

Background to Recent Developments

Prior to the founding of a monarchy in 1747 by Ahmad Shah Durrani, Afghanistan was territory inhabited by tribes and tribal confederations linked to neighboring nations, not a distinct entity. King Amanullah Khan (1919-1929) launched attacks on British forces in Afghanistan shortly after taking power and won complete independence from Britain as recognized in the Treaty of Rawalpindi (August 8, 1919). He was considered a secular modernizer presiding over a government in which all ethnic minorities participated. He was succeeded by King Mohammad Nadir Shah (1929-1933), and then by King Mohammad Zahir Shah.

Zahir Shah’s reign (1933-1973) is remembered fondly by many older Afghans for promulgating a constitution in 1964 that established a national legislature and promoting freedoms for women, including freeing them from covering their face and hair. However, possibly believing that he could limit Soviet support for communist factions in Afghanistan, Zahir Shah also entered into a significant political and arms purchase relationship with the Soviet Union.

Afghanistan’s slide into instability began in the 1970s when the diametrically opposed Communist Party and Islamic movements grew in strength. While receiving medical treatment in Italy, Zahir Shah was overthrown by his cousin, Mohammad Daoud, a military leader. Daoud established a dictatorship with strong state control over the economy. Communists overthrew Daoud in 1978, led by Nur Mohammad Taraki, who was displaced a year later by Hafizullah Amin, leader of a rival faction. They tried to impose radical socialist change on a traditional society, in part by redistributing land and bringing more women into government, sparking rebellion by Islamic parties opposed to such moves. The Soviet Union sent troops into Afghanistan on December 27, 1979, to prevent a seizure of power by the Islamic militias, known as the mujahedin (Islamic fighters). Upon their invasion, the Soviets replaced Hafizullah Amin with an ally, Babrak Karmal.

Soviet occupation forces were never able to pacify the outlying areas of the country. The mujahedin benefited from U.S. weapons and assistance, provided through the Central Intelligence Agency (CIA) in cooperation with Pakistan’s Inter-Service Intelligence directorate (ISI). That weaponry included portable shoulder-fired anti-aircraft systems called “Stingers,” which proved highly effective against Soviet aircraft. The mujahedin also hid and stored weaponry in a large network of natural and manmade tunnels and caves throughout Afghanistan. The Soviet Union’s losses mounted, and Soviet domestic opinion turned anti-war.

In 1986, after the reformist Mikhail Gorbachev became leader, the Soviets replaced Karmal with the director of Afghan intelligence, “Najibullah” Ahmedzai. On April 14, 1988, Gorbachev agreed to a U.N.-brokered accord (the Geneva Accords) requiring it to withdraw. The withdrawal was completed by February 15, 1989, leaving in place the weak Najibullah government.

The United States closed its embassy in Kabul in January 1989, as the Soviet Union was completing its pullout. A warming of relations moved the United States and Soviet Union to try for a political settlement to the Afghan conflict, a trend accelerated by the 1991 collapse of the Soviet Union, which reduced Moscow’s capacity for supporting communist regimes in the Third World. On September 13, 1991, Moscow and Washington agreed to a joint cutoff of military aid to the Afghan combatants.

The State Department has said that a total of about $3 billion in economic and covert military assistance was provided by the U.S. to the Afghan mujahedin from 1980 until the end of the Soviet occupation in 1989. Press reports say the covert aid program grew from about $20 million per year in FY1980 to about $300 million per year during FY1986-FY1990. The Soviet pullout decreased the strategic value of Afghanistan, causing the Administration and Congress to reduce covert funding. [1] [1] For FY1991, Congress reportedly cut covert aid appropriations to the mujahedin from $300 million the previous year to $250 million, with half the aid withheld until the second half of the fiscal year. See “Country Fact Sheet: Afghanistan,” in U.S. Department of State Dispatch, vol. 5, no. 23 (June 6, 1994), p. 377.

With Soviet backing withdrawn, on March 18, 1992, Najibullah publicly agreed to step down once an interim government was formed. That announcement set off a wave of rebellions primarily by Uzbek and Tajik militia commanders in northern Afghanistan, who joined prominent mujahedin commander Ahmad Shah Masud of the Islamic Society, a largely Tajik party headed by Burhannudin Rabbani. Masud had earned a reputation as a brilliant strategist by preventing the Soviets from occupying his power base in the Panjshir Valley of northeastern Afghanistan. Najibullah fell, and the mujahedin regime began April 18, 1992. [2] [2] After failing to flee, Najibullah, his brother, and aides remained at a U.N. facility in Kabul until the Taliban movement seized control in 1996 and hanged them.

Despite the many changes in Afghan governments, US-Afghan diplomatic relations continued throughout the period, with direct Afghan representation at its Washington D.C. embassy from 1943 (next post).

10-12-2008, 02:20 AM
Embassy of Afghanistan
About the Embassy

.... Shortly after Afghanistan regained her independence from Britain in 1919, King Amanullah, the reformist monarch of Afghanistan, dispatched General Wali Khan as the first Afghan envoy to Washington.

Full diplomatic relations between the Afghanistan and the United States began in 1934. Shortly after the end of World War II, His Majesty King Zahir Shah dispatched Abdul Hussein Aziz as the first Afghan Ambassador to the United States. Ambassador Aziz leased a historic building from an outgoing Supreme Court Chief Justice (The building was later purchased by Ambassador Abdullah Malikyar). That building continues to house the Embassy more than half a century later. President Roosevelt appointed William Hornibrook as the first U.S. Ambassador to Afghanistan, on November 14, 1935. ....

Afghan Representatives in Washington, D.C. (1943-1992)

Abdul Hussain Aziz, Afghan Minister (1943-1948)
Mohammed Naim Khan, Charge d'Affaires (1948-1950)
Abdul Hamid Aziz, Charge d'Affaires (1950-1951)
Mohammed Kabir Ludin, Ambassador (1953-1956)
Dr. Najibullah Torwayana, Ambassador (1956-1958)
Mohammed Hashim Maiwandwal, Ambassador (1958-1963)
Dr. Abdul Majid, Ambassador (1963-1967)
Abdullah Malikyar, Ambassador (1967-1978)
Dr. Abdul Waheed Karim, Ambassador (1978-80)
Noor Ahmad Noor, Ambassador (1980-1981)
Dr. Mohed Salem Spartak, charge d'affaires (1982-1984)
Mohammad Haidar Rafiq, charge d'affaires (1984-1987)
Mia Gul, charge d'affaires (1988-1990)
Abdul Ghafoor Jawshan, charge d'affaires (1990-1992)

American Ambassadors to Afghanistan (1935-1992)

William H. Hornibrook (1935 - 1936) - Minister Plenipotentiary
Louis G. Dreyfus, Jr. (1940 - 1942) - Minister Plenipotentiary
Cornelius Van Hemert Engert (1942 - 1945) - Minister Plenipotentiary
Ely E. Palmer (1945 - 1948) - Minister Plenipotentiary
Louis G. Dreyfus, Jr. (1949 - 1951) - First formal ambassador
George Robert Merrell (1951 - 1952)
Angus I. Ward (1952 - 1956)
Sheldon T. Mills (1956 - 1959)
Henry A. Byroade (1959 - 1962)
John M. Steeves (1962 - 1966)
Robert G. Neumann (1966 - 1973)
Theodore L. Eliot, Jr. (1973 - 1978)
Adolph Dubs (1978 - 1979)

From 1979 - 2001, the United States did not have an Ambassador posted in Afghanistan, although U.S. interests in Afghanistan were represented by a number of charge d'affaires. From 1981 [sic ?] to 2002, there was no official U.S. embassy in Kabul.

Adolph Dubs was murdered in Kabul in 1979. Since the US embassy was not finally closed until 1989, there may be a typo ("1981") in the Afghan Embassy webpage.

The continuation of US diplomatic relations with the various Afghan governments is established by the list of Afghan ambassadors and charges d'affaires during the period 1943-1992.

10-12-2008, 02:25 AM
CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy

(pp. 7-8)

The Mujahedin Government and Rise of the Taliban

The fall of Najibullah exposed the differences among the mujahedin parties. The leader of one of the smaller parties (Afghan National Liberation Front), Islamic scholar Sibghatullah Mojadeddi, became president during April - May 1992. Under an agreement among the major parties, Rabbani became President in June 1992 with the understanding that he would serve until December 1994. He refused to step down at that time, saying that political authority would disintegrate without a clear successor. Kabul was subsequently shelled by other mujahedin factions, particularly that of nominal “prime minister” Gulbuddin Hikmatyar, who accused Rabbani of monopolizing power. Hikmatyar’s radical Islamist Hizb-e-Islami (Islamic Party) had received a large proportion of the U.S. aid during the anti-Soviet war. Four years of civil war (1992-1996) created popular support for the Taliban as a movement that could deliver Afghanistan from the factional infighting.

The Taliban was formed in 1993-1994 by Afghan Islamic clerics and students, many of them former mujahedin who had become disillusioned with continued conflict among mujahedin parties and had moved into Pakistan to study in Islamic seminaries (“madrassas”). They were practitioners of an orthodox Sunni Islam called “Wahhabism,” which is similar to that practiced in Saudi Arabia. The Taliban was composed of ethnic Pashtuns (Pathans) from rural areas of Afghanistan who viewed the Rabbani government as corrupt, anti-Pashtun, and responsible for civil war. With the help of defections, the Taliban seized control of the southeastern city of Qandahar in November 1994; by February 1995, it had reached the gates of Kabul, after which an 18-month stalemate around the capital ensued. In September 1995, the Taliban captured Herat province, bordering Iran, and imprisoned its governor, Ismail Khan, a Tajik ally of Rabbani and Masud, who later escaped and took refuge in Iran. In September 1996, Taliban victories near Kabul led to the withdrawal of Rabbani and Masud to their Panjshir Valley redoubt north of Kabul with most of their heavy weapons; the Taliban took control of Kabul on September 27, 1996.

Immediately thereafter, Taliban gunmen entered a U.N. facility in Kabul to seize Najibullah, his brother, and aides sheltered there, and subsequently hanged them.

So much for Taliban respect for I Law and the GCs in September 1996 - Najibullah (who was a "bad guy") et al. had no trial - it was a good old fashioned lynching (mutilation and hanging - covered BTW by Soldier of Fortune back in that day - photos, etc.).

Embassy of Afghanistan
About the Embassy

Afghan Representatives in Washington, D.C. (1992-1996)
Abdul Rahim, charge d'affaires (1992-1994)
Yar Mohammad Mohabat, charge d'affaires (1994-1995)

[JMM Note: Mohabat continued as charge d'affaires in Washington through 1996 and into 1997. See next part 1996-2001.]

American Ambassadors to Afghanistan (1992-1996)
From 1979 - 2001, the United States did not have an Ambassador posted in Afghanistan, although U.S. interests in Afghanistan were represented by a number of charge d'affaires. From 1981 [sic ?] to 2002, there was no official U.S. embassy in Kabul.

Despite the turmoil in Afghanistan, diplomatic relations continued with the Rabbani government from June 1992 until well into 1997.

10-12-2008, 02:33 AM
CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy

All quotes below are from pp. 8-10.

Taliban Rule

The Taliban regime was led by Mullah Muhammad Umar, who lost an eye in the anti-Soviet war while fighting under the banner of the Hizb-e-Islam (Islamic Party of Yunis Khalis. Umar held the title of Head of State and “Commander of the Faithful,” but he mostly remained in the Taliban power base in Qandahar, rarely appearing in public. Umar forged a close bond with bin Laden and refused U.S. demands to extradite him. Born in Uruzgan province, Umar is about 60 years old.

The Taliban progressively lost international and domestic support as it imposed strict adherence to Islamic customs in areas it controlled and employed harsh punishments, including executions. The Taliban authorized its “Ministry for the Promotion of Virtue and the Suppression of Vice” to use physical punishments to enforce strict Islamic practices, including bans on television, Western music, and dancing. It prohibited women from attending school or working outside the home, except in health care, and it publicly executed some women for adultery. In what many consider its most extreme action, in March 2001 the Taliban blew up two large Buddha statues carved into hills above Bamiyan city, on the grounds that they represented un-Islamic idolatry.

The Clinton Administration held talks with the Taliban before and after it took power, but relations quickly deteriorated. The United States withheld recognition of Taliban as the legitimate government of Afghanistan, formally recognizing no faction as the government. Because of the lack of broad international recognition, the United Nations seated representatives of the ousted Rabbani government, not the Taliban. The State Department ordered the Afghan embassy in Washington, D.C., closed in August 1997. U.N. Security Council Resolution 1193 (August 28, 1998) and 1214 (December 8, 1998) urged the Taliban to end discrimination against women. Several U.S.-based women’s rights groups urged the Clinton Administration not to recognize the Taliban government, and in May 1999, the Senate passed a resolution (S.Res. 68) calling on the President not to recognize any Afghan government that discriminates against women.

The Taliban’s hosting of Al Qaeda’s leadership had become the Clinton Administration’s overriding agenda item with Afghanistan by 1998. [3] [3] For more information on Al Qaeda, see CRS Report RL33038, Al Qaeda: Profile and Threat Assessment, by Kenneth Katzman.

In April 1998, then U.S. Ambassador to the United Nations Bill Richardson visited Afghanistan and asked the Taliban to hand over bin Laden, but was rebuffed. After the August 7, 1998, Al Qaeda bombings of U.S. embassies in Kenya and Tanzania, the Clinton Administration progressively pressured the Taliban on bin Laden, imposing U.S. sanctions and achieving adoption of some U.N. sanctions against the Taliban.

On August 20, 1998, the United States fired cruise missiles at alleged Al Qaeda training camps in eastern Afghanistan, but bin Laden was not at any of the camps at the time. Some observers assert that the Administration, for varying reasons, missed other purported opportunities to strike bin Laden. Clinton Administration officials say that they did not try to oust the Taliban from power with U.S. military force because domestic U.S. support for those steps was then lacking and the Taliban’s opponents were too weak and did not necessarily hold U.S. values.

The 1998 missile strike raises interesting I Law issues (not resolved today) about use of armed force within a nation that has no recognized government, or at least no governance in the affected territory. Let us not digress there.

The “Northern Alliance” Coalition Against the Taliban

The Taliban’s policies caused many different Afghan factions to ally with the ousted President Rabbani and Masud, the Tajik core of the anti-Taliban opposition, into a broader “Northern Alliance.” Among them were the Uzbek, Hazara Shiite, and Pashtun Islamist factions below (see also Table 10 on “Major Factions/Leaders in Afghanistan”).

Uzbeks/General Dostam. One major Alliance faction was the Uzbek militia (the Junbush-Melli, or National Islamic Movement of Afghanistan) of General Abdul Rashid Dostam, although Dostam had earlier contributed to efforts to force Rabbani from power. During the U.S.-led war against the Taliban, Dostam reportedly impressed U.S. military commanders by leading horse-mounted forces against fixed Taliban positions at Shulgara Dam, south of Mazar-e-Sharif, leading to the fall of that city and the Taliban’s subsequent collapse.

Hazara Shiites. Members of Hazara tribes, mostly Shiite Muslims, are prominent in Bamiyan Province (central Afghanistan) and are always wary of repression by Pashtuns and other large ethnic factions. During the various Afghan wars, the main Hazara Shiite grouping was Hizb-e-Wahdat (Unity Party, an alliance of eight smaller groups).

Pashtun Islamists/Sayyaf. Abd-I-Rab Rasul Sayyaf, who is now a parliament committee chairman, headed a Pashtun-dominated mujahedin faction called the Islamic Union for the Liberation of Afghanistan. Even though his ideology is similar to that of the Taliban, Sayyaf joined the Northern Alliance.

Since under US law, neither the Taliban nor the Northern Alliance was the recognized Afghan government, neither of them represented a High Contacting Party under GC III, Art. 2., under US law. But, both of them were Powers under that article. The evidence (yet to be examined) seems to prove that, leaving aside formal acceptances of the GCs, neither of those Powers applied them to prisoners.

Bush Administration Policy Pre-September 11, 2001

Prior to the September 11 attacks, Bush Administration policy toward the Taliban differed only slightly from Clinton Administration policy: applying pressure short of military while retaining dialogue with the Taliban. The Bush Administration did not provide the Northern Alliance with U.S. military assistance, although the 9/11 Commission report said that, in the months prior to the September 11 attacks, the Administration was leaning toward such a step. That report added that some Administration officials wanted to also assist anti-Taliban Pashtun forces and not just the Northern Alliance; other covert options might have been under consideration as well. [4] [4] Drogin, Bob. “U.S. Had Plan for Covert Afghan Options Before 9/11.” Los Angeles Times, May 18, 2002.

In a departure from Clinton Administration policy, the Bush Administration stepped up engagement with Pakistan, in part to persuade it to end support for the Taliban.

In accordance with U.N. Security Council Resolution 1333, in February 2001 the State Department ordered the closing of a Taliban representative office in New York, although the Taliban representative continued to operate informally. In March 2001, Bush Administration officials received Taliban foreign ministry aide Rahmatullah Hashemi to discuss bilateral issues.

Fighting with some Iranian, Russian, and Indian support, the Northern Alliance continued to lose ground to the Taliban after it lost Kabul in 1996. By the time of the September 11 attacks, the Taliban controlled at least 75% of the country, including almost all major provincial capitals. The Northern Alliance suffered a major setback on September 9, 2001, two days before the September 11 attacks, when Ahmad Shah Masud was assassinated by alleged Al Qaeda suicide bombers posing as journalists. He was succeeded by his intelligence chief, Muhammad Fahim, a veteran figure but who lacked Masud’s charisma or undisputed authority.

There is some controversy as to exactly what the Clinton administration was trying to accomplish in US-Afghan relations during the period 1996-2000. The Clinton policies carried over into Bush pre-9/11.

10-12-2008, 02:41 AM
Embassy of Afghanistan
About the Embassy

Sadly, the Embassy was not immune from the conflict that raged over the ocean within Afghanistan. After the Taliban seized control of Kabul, representatives from competing factions feuded over control of the Embassy building. Although the Taliban was not recognized by the United States, their representative in Washington occupied the Embassy building until the summer of 1997, whereupon the State Department officially closed the Embassy.

The bottom line, recognized by both nations, was that stated in the CRS Report (above post):

The Clinton Administration held talks with the Taliban before and after it took power, but relations quickly deteriorated. The United States withheld recognition of Taliban as the legitimate government of Afghanistan, formally recognizing no faction as the government. Because of the lack of broad international recognition, the United Nations seated representatives of the ousted Rabbani government, not the Taliban. The State Department ordered the Afghan embassy in Washington, D.C., closed in August 1997.

The Clinton policy of non-recognition of any government in Afghanistan is affirmed in the 1997 CIA World Factbook's entry for Afghanistan.

Constitution: none

Legal system: a new legal system has not been adopted but all factions tacitly agree they will follow Islamic law (Shari'a)

Suffrage: undetermined; previously males 15-50 years of age

Executive branch: on 27 September 1996, the ruling members of the Afghan Government were displaced by members of the Islamic Taliban movement; the Islamic State of Afghanistan has no functioning government at this time, and the country remains divided among fighting factions

note: the Taliban have declared themselves the legitimate government of Afghanistan; the UN has deferred a decision on credentials and the Organization of the Islamic Conference has left the Afghan seat vacant until the question of legitimacy can be resolved through negotiations among the warring factions; the country is essentially divided along ethnic lines; the Taliban controls the capital of Kabul and approximately two-thirds of the country including the predominately ethnic Pashtun areas in southern Afghanistan; opposing factions have their stonghold in the ethnically diverse north - General DOSTAM's National Islamic Movement controls several northcentral provinces and Commander MASOOD controls the ethnic Tajik majority areas of the northeast

Legislative branch: non-functioning as of June 1993

Judicial branch: non-functioning as of March 1995, although there are local Shari'a (Islamic law) courts throughout the country
Diplomatic representation in the US:
chief of mission : Ambassador (vacant); Charge d'Affaires Yar Mohammed MOHABBAT
chancery: 2341 Wyoming Avenue NW, Washington, DC 20008
telephone: [1] (202) 234-3770, 3771
FAX: [1] (202) 328-3516
consulate(s) general : New York
consulate(s): Washington, DC

Diplomatic representation from the US: the US embassy in Kabul has been closed since January 1989 due to security concerns
Disputes - international: some support from RABBANI and MASOOD to anti-government Islamic fighters in Tajikistan's civil war; support to Islamic militants worldwide by some factions; question over which group should hold Afghanistan's seat at the UN

A vignette in the story involved the Washington D.C. Afghan embassy.

10-12-2008, 02:49 AM
The Clinton administration's non-recognition policy was not caused by the non-bloody battle over the Washington D.C. Afghan embassy in 1997; but that event made non-recognition an easier statement to make. So, here is a brief account of the initial day.

NY Times
Afghan Force Ousts Taliban From City in North
Published: May 29, 1997
Foes Struggle for Embassy

WASHINGTON, May 28 (AP) -- As Islamic warriors battle to gain full control of Afghanistan, diplomats struggled for power at the Afghanistan Embassy here today.

The dispute pitted the Second Secretary, Seraj Jamal, who defected to the Taliban, against the charge d'affaires, Yar Mohammed Mohabbat, who represents the Government driven out by the Taliban.

About midnight today, Mr. Mohabbat said he received an anonymous death threat. He called the State Department, and the police were summoned.

In the meantime, the green-white-and-black Afghan flag flying over the embassy was secretly replaced by the white Taliban banner. The flag was replaced by the Afghan flag at about noon. ....

Steve Coll in Ghost Wars (pp.348-352) has quite a bit more about Mr. Mohabbat's problems. The NY Times account is accurate in what is said.

Eventually (three months later), the US pulled the plug on the Afghan embassy - and emphasized that the Clinton administration was "neutral" concerning the government of Afghanistan.

NY Times
As Civil War Rages, U.S. Tells Afghans To Close Embassy
Published: August 15, 1997

United States officials today gave the Afghan Embassy in Washington one week to close down, saying they did not want to seem partial toward the militant Islamic forces known as the Taliban, which is waging a civil war with other Afghan factions and control Kabul, the country's capital.

''The Department of State has decided to suspend temporarily operations at the Afghanistan Embassy in Washington, effective August 21st,'' State Department spokesman James Rubin said at his daily press briefing. ''We concluded that the result of not taking this action would be that one representative of the Taliban would end up being in charge -- that would send a signal that we were not neutral,'' he said.

''The department has been forced to take this action because of continuing contention among Afghan factions within the embassy,'' he said, adding that the United States also believed that ''there is no effective Government in the country.'' ....
The Afghan Embassy has had two senior diplomats in dispute over who represents the country. They are Seraj Jamal, nominated to be charge d'affaires by the Taliban, and the former charge d'affaires, Yar Mohammed Mohabbat, an appointee of the old Government.

In May, the Taliban asked Mr. Mohabbat to give up his post in favor of Mr. Jamal, but the State Department has not accredited Mr. Jamal as his successor, said an official at the embassy who spoke on condition of anonymity. ....

The position of the US Executive branch - "neutral", "no effective Government in the country", "civil war", etc., as recounted by the Times, establishes a cut-off date for withdrawal of diplomatic recognition from the Rabbani government (August 15, 1997). But, non-recognition of the Taliban was also the clear parallel policy of the Executive branch.

On the other hand, a large number of countries continued to recognize the Rabbani government - a situation which continued up to 9/11. E.g.,

Commentary: U.S. policy and the "other" Afghanistan
WASHINGTON, April 13 2001 (UPI) -- It may be shrinking, but there's life in it yet.

The Islamic State of Afghanistan, recognized by the United Nations, is still a thorn in the side of the Taliban, the group that is widely regarded as controlling 90 percent of the country. It is the Islamic State of Afghanistan that occupies the Afghan seat in the United Nations, is recognized by a large number of states, and has embassies in many of the European capitals. (The Taliban, in contrast, is recognized by three states: Pakistan, the United Arab Emirates and Saudi Arabia.)
Regardless of the acreage controlled by each side, what is rarely mentioned is that the population in each of the opposing camps is almost evenly split. Some, as the Indian officials I met with recently, speak about this, but it is rarely mentioned in the United States. The Indians assert that Massoud's forces have somewhere around 40 percent of the population at present. ....

Under the Belmont and Pink cases, a US court (after August 15, 1997) could only hold that no recognized government existed in Afghanistan - and, hence, no Power represented Afghanistan in its status as a "High Contracting Party" to the GCs. Did the situation change ? Indeed, it did.

10-12-2008, 02:57 AM
CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy

All quotes in this and the following post are from pp.10-13

September 11 Attacks and Operation Enduring Freedom.

After the September 11 attacks, the Bush Administration decided to militarily overthrow the Taliban when it refused to extradite bin Laden. The Administration decided that a friendly regime in Kabul was needed to create the conditions under which U.S. forces could capture Al Qaeda activists there. In Congress, S.J.Res. 23 (passed 98-0 in the Senate and with no objections in the House, P.L. 107-40) authorized:

"... all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons."

[5] [5] Another law (P.L. 107-148) established a “Radio Free Afghanistan” under RFE/RL, providing $17 million in funding for it for FY2002.

Major combat in Afghanistan (Operation Enduring Freedom, OEF) began on October 7, 2001. It consisted primarily of U.S. air-strikes on Taliban and Al Qaeda forces, coupled with targeting by relatively small numbers (about 1,000) of U.S. special operations forces, to facilitate military offensives by the Northern Alliance and Pashtun anti-Taliban forces. Some U.S. ground units (about 1,300 Marines) moved into Afghanistan to pressure the Taliban around Qandahar at the height of the fighting (October-December 2001), but there were few pitched battles between U.S. and Taliban soldiers; most of the ground combat was between Taliban and its Afghan opponents. Some critics believe that U.S. dependence on local Afghan militia forces in the war strengthened the militias in the post-war period.

The Taliban regime unraveled rapidly after it lost Mazar-e-Sharif on November 9, 2001. Northern Alliance forces - the commanders of which had initially promised U.S. officials they would not enter Kabul - entered the capital on November 12 to popular celebrations. The Taliban subsequently lost the south and east to pro-U.S. Pashtun leaders, such as Hamid Karzai. The end of the Taliban regime is generally dated as December 9, 2001, when the Taliban surrendered Qandahar and Mullah Omar fled the city, leaving it under tribal law administered by Pashtun leaders such as the Bashir Noorzai brothers. Subsequently, U.S. and Afghan forces conducted “Operation Anaconda” in the Shah-i-Kot Valley south of Gardez (Paktia Province) during March 2-19, 2002, against as many as 800 Al Qaeda and Taliban fighters. In March 2003, about 1,000 U.S. troops raided suspected Taliban or Al Qaeda fighters in villages around Qandahar. On May 1, 2003, Secretary of Defense Rumsfeld said “major combat operations” had ended.

There are many additional facts, documents, etc,. relevant to the legal status of the US and its allies in OEF. Those facts, and any legal issues generated, are not relevant to the simple issues here - what Powers were involved in the armed conflict; which of those Powers were explicit Parties to the GCs; and which (if any) of the non-contacting Powers could avail themselves of GC III protections by compliance with the "accept" and "apply" requirements of Art. 2, para 3.

Post-War Stabilization and Reconstruction

[6] [6] More information on some of the issues in this section can be found in CRS Report RS21922, Afghanistan: Elections, Constitution, and Government, by Kenneth Katzman.

The war paved the way for the success of a decade-long U.N. effort to form a broad-based Afghan government. The United Nations was viewed as a credible mediator by all sides largely because of its role in ending the Soviet occupation. During the 1990s, proposals from a succession of U.N. mediators incorporated many of former King Zahir Shah’s proposals for a government to be selected by a traditional assembly, the loya jirga. However, any U.N.-mediated ceasefires between warring factions always broke down. Non-U.N. initiatives fared no better, particularly the “Six Plus Two” multilateral contact group, which began meeting in 1997 (the United States, Russia, and the six states bordering Afghanistan: Iran, China, Pakistan, Turkmenistan, Uzbekistan, and Tajikistan). Other efforts included a “Geneva group” (Italy, Germany, Iran, and the United States) formed in 2000; an Organization of Islamic Conference (OIC) contact group; and Afghan exile efforts, including one from the Karzai clan and one centered on former King Zahir Shah.

Note: at this stage, the position of the US government was still non-recognition of any Afghan government. That void was soon cured by the Bonn Agreement (next post).

10-12-2008, 03:07 AM
CRS Report for Congress
Order Code RL30588
Afghanistan: Post-War Governance, Security, and U.S. Policy

The Bonn Agreement.

Immediately after the September 11 attacks, former U.N. mediator Lakhdar Brahimi was brought back (he had ended his efforts in frustration in October 1999). U.N. Security Council Resolution 1378 was adopted on November 14, 2001, calling for a “central” role for the United Nations in establishing a transitional administration and inviting member states to send peacekeeping forces to promote stability and aid delivery. After the fall of Kabul in November 2001, the United Nations invited the major Afghan factions, most prominently the Northern Alliance and that of the former King - but not the Taliban - to a conference in Bonn, Germany. On December 5, 2001, the factions signed the “Bonn Agreement.”....

The text of the Bonn agreement is at either of two sites.



The Bonn Agreement (cont.)

It was endorsed by U.N. Security Council Resolution 1385 (December 6, 2001). The agreement included the following provisions:

Formed a 30-member interim administration to govern until the holding in June 2002 of an emergency loya jirga, which would choose a government to run Afghanistan until a new constitution is approved and national elections held (planned for June 2004).

Hamid Karzai was selected to chair the interim administration, weighted toward the Northern Alliance with 17 out of 30 of the positions, including Defense (Fahim), Foreign Affairs (Dr. Abdullah Abdullah), and Interior (Yunus Qanooni). The three ethnic Tajiks, in their 40s, had been close aides to Ahmad Shah Masud. In the interim, the constitution of 1964 would apply. [8] [8] The last loya jirga that was widely recognized as legitimate was held in 1964 to ratify a constitution. Najibullah convened a loya jirga in 1987 to approve pro-Moscow policies; that gathering was widely viewed by Afghans as illegitimate.

Authorized an international peace keeping force to maintain security, at least in Kabul. Northern Alliance forces were directed to withdraw from Kabul. The agreement also referenced the need to cooperate with the international community to counter narcotics trafficking, crime, and terrorism. The international peacekeeping force was authorized by Security Council Resolution 1386 (December 20, 2001).
Permanent Constitution.

An “emergency” loya jirga (June 2002) put a popular imprimatur on the transition government. Former King Zahir Shah returned to Afghanistan in April 2002 for the meeting, for which 381 districts of Afghanistan chose 1,550 delegates, of which about 200 were women. At the assembly, the former King and Rabbani withdrew their candidacies and Karzai was selected to remain leader until presidential elections. On its last day (June 19, 2002), the assembly approved a new cabinet, with a few changes. Subsequently, a 35-member constitutional commission, appointed in October 2002, drafted the permanent constitution and unveiled in November 2003. It was debated by 502 delegates, selected in U.N.-run caucuses, at a “constitutional loya jirga (CLJ)” during December 13, 2003-January 4, 2004. The CLJ, chaired by Mojadeddi (mentioned above), ended with approval of the constitution with only minor changes from the draft. Most significantly, members of the Northern Alliance factions and their allies did not succeed in measurably limiting the power of the presidency by setting up a prime minister-ship. However, major powers were given to an elected parliament, such as the power to veto senior official nominees and to impeach a president.

The foregoing references are obviously relevant to OEF, etc.

The date of US recognition for the Interim Authority in Afghanistan is here (see post # 21 for url).

US Embassy - Kabul
About the embassy
History of the Embassy
The United States recognized the Interim Authority in Afghanistan on Dec 22, 2001.

The resumption of diplomatic relations is summarized more fully in the next post.

10-12-2008, 03:14 AM
Here, we have a brief summary from the Afghans, which agrees with the US DoS.

Embassy of Afghanistan
About the Embassy

In January 2002, after the establishment of the Interim Afghan Administration, bilateral relations were restored between Afghanistan and the United States. In an emotional ceremony, the Afghan flag was once again raised outside the Embassy in the presence of then Chairman Hamid Karzai and U.S. officials. The Embassy building, which had been neglected and lay in disrepair, was renovated and reopened in June of 2002. .....
Afghan Representatives in Washington, D.C. from 2002 to the Present
Haroun Amin, charge d'affaires (2002)
Isaq Sharhyar, Ambassador (2002-2003)
Said T. Jawad, Ambassador (2003-present)
American Ambassadors to Afghanistan from 2002 to the Present
James F. Dobbins (2001) - Special US Ambassador to oversee reopening of embassy, not official ambassador
Ryan C. Crocker (2001-2002) - charge d'affaires before official ambassador could be chosen
Robert Finn (2002-2003)
Zalmay Khalilzad (2003-2005)
Ronald E. Neumann (2005-2007)
William B. Wood (2007-present)

US Embassy - Kabul
About the embassy
History of the Embassy

Note: The U.S. Liaison Office in Kabul reopened Dec 17, 2001. The United States recognized the Interim Authority in Afghanistan on Dec 22, 2001. Ryan Crocker was appointed Charge d'Affaires ad interim Jan 2, 2002.

5) Robert Patrick John Finn
Presentation of Credentials: April 3, 2002
Termination of Mission: August 1, 2003

6) Dr. Zalmay Khalilzad
Presentation of Credential: November 24, 2003
Termination of Mission: June 20, 2005 ....

In one reporter's opinion, we were seeing in 2002 "A House, a Nation Rebuilt" - the jury is still out on the "nation" part.

LA Times
A House, a Nation Rebuilt
By Faye Fiore
May 20, 2002 in print edition A-1

A top embassy posting here is a job of privilege that typically comes with a chauffeured limousine, a generous salary, a staff of servants and guaranteed entree to the grand soirees of Embassy Row. So it was all the more discouraging when Yar M. Mohabbat found himself crouched in the bathroom of the Afghan Embassy one night, trying to fix a broken toilet.

It was 1997 and he was the acting ambassador assigned to a four-story mansion in a Washington neighborhood where gardeners preen and maids polish. But to him, it felt more like a 4,000-square-foot shack. ... And when the Afghan government finally did battle with the Taliban, the wealthy neighbors on Wyoming Avenue could look out their windows and see the conflict writ small, as Mohabbat and a diplomat-turned-Talib fought over which flag would fly above the decrepit house.

The U.S. government settled the dispute promptly, virtually turning its back on the country and shutting the embassy down.

Now, five years later, Afghanistan has a new government and its official American headquarters a second chance. ....

This brings us to the end of our factual evidence dealing with the US and Afghan positions on diplomatic recognition over the key period from 1996 through 2002.

The next two posts will look at how other nations viewed the same facts.

10-12-2008, 03:22 AM
The following is a good summary of the Taliban's efforts (largely unsuccessful) to gain governmental recognition by the international community.

Version 4
September 1999
Country Information and Policy Unit

1.1 This assessment has been produced by the Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office, from information obtained from a variety of sources.


This Assessment provides the British view of the facts (with sources) and the different reactions by various governments to those facts. One can fairly state that the facts were the same whether from British or US authorship.

For our purposes, the most relevant fact is international acceptance of the fact that the US government did not recognize the Taliban as the government of Afdghanistan.

International Recognition

5.4.30 The Taliban was recognized by Pakistan, Saudi Arabia and the United Arab Emirates as the government of Afghanistan in May 1997. [7d] However, it has won no other international, or UN, recognition and former President Rabbani continues to be acknowledged by many, [1] including Iran and Russia, [11a] as the rightful leader of Afghanistan. [1] In recent years, the Taliban has found itself isolated internationally because of its discriminatory policies on grounds of gender, the perception that it allows Afghanistan territory to be used as a base for so-called international terrorism, and the concern over the reported production and export of illegal drugs from Afghanistan. [7i]

[7] Amnesty International [d] Annual Report, 1998
[1] Europa World Year Book 1998, Volume I, March 1998
[11] United Nations High Commissioner for Refugees [a] Background Paper on Refugees and Asylum Seekers from Afghanistan, June 1997
[7] Amnesty International [i] Afghanistan: Detention and Killing of Political Personalities, March 1999

5.4.31 By August 1998, having seized Mazar-i-Sharif, the last city remaining outside its control, the Taliban prepared to turn its efforts towards a campaign for international recognition. The only countries [currently] recognising the Islamist movement's legitimacy as a government were Pakistan, Saudi Arabia and the United Arab Emirates. In 1998, the Pakistan Prime Minister, Nawaz Sharif, and [then] Army Chief of Staff, General Jehangir Karamat, supported a more neutral policy and a negotiated settlement in Afghanistan, while the [then] Foreign Minister (a Pashtun) and the intelligence services (Pashtun dominated) wished to adopt a clear-pro Taliban line. With the official commencement of nuclear rivalries between Pakistan and India in the summer of 1998, support for the Taliban by Pakistan was no longer questioned. [11b]

[11] United Nations High Commissioner for Refugees [b] Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan, January 1999

5.4.32 Hopes of recognition were short-lived when on 20 August 1998 a US missile attack targeted camps in Afghanistan, allegedly containing terrorist infrastructure of a movement led by Saudi Arabian dissident, Osama bin Laden. The US government alleged that there was evidence implicating bin Laden in the bombing of US embassies in Kenya and Tanzania on 7 August 1998. The Taliban's continued defence of bin Laden and their denunciation of the US raid ruled out any dialogue with the US which might have led to diplomatic recognition. [11b]

[11] United Nations High Commissioner for Refugees [b] Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan, January 1999

5.4.33 While Afghanistan's status in relation to the US has long since changed after the Cold War, it continues to engage US interest in areas such as containing terrorism, curbing illegal drug trafficking, and checking human rights violations. Unsubstantiated rumours that the US had supported the Taliban in order to build pipelines and isolate Iran were put to rest when the US attack on Taliban-controlled Afghanistan took place. [11b]

[11] United Nations High Commissioner for Refugees [b] Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan, January 1999

5.4.34 In early October 1998 Saudi Arabia decided to downgrade diplomatic relations with Afghanistan and recalled its charge d'affairs from Kabul. The decision to downgrade relations was prompted by Saudi Arabia's request to extradite bin Laden. Analysts believed that the policy shift had been prompted by pressure from US officials on the Saudi government to secure the capture of bin Laden. [5j] Amnesty International also reported in March 1999 that relations between Saudi Arabia and the Taliban appear to be strained. [7i]

[5] Keesing's Record of World Events [j] October 1998
[7] Amnesty International [i] Afghanistan: Detention and Killing of Political Personalities, March 1999

5.4.35 Former President B. Rabbani, who had relocated to Takhar in the north, claims that he has remained the head of the legitimate Government of Afghanistan. His delegation retained Afghanistan's seat at the United Nations after the General Assembly deferred a decision on Afghanistan's credentials. [11b]

[11] United Nations High Commissioner for Refugees [b] Update to the Background Paper on Refugees and Asylum Seekers from Afghanistan, January 1999

5.4.36 In October 1998 the leader of the Taliban, Mullah Mohammad Omar, made a public offer to halt the production of opium poppies in exchange for international recognition of the Taliban regime. In remarks made to the Taliban's Bakhtar news agency, Omar said that unless the regime gained recognition the country faced serious economic hardship. [5j]

[5] Keesing's Record of World Events [j] October 1998

The events after 1999 did not change this picture. In fact, the Taliban's diplomatic efforts suffered some setbacks, even before 9/11.

10-12-2008, 03:31 AM
The Home Office Assessment was periodically updated. Here is the version just before 9/11, which shortened the longer discussion in the 1999 Assessment.

April 2001
Country Information and Policy Unit
Scope of Document
1.1 This assessment has been produced by the Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office, from information obtained from a variety of sources.
International Recognition

5.4.28 Pakistan, Saudi Arabia and the United Arab Emirates recognized the Taliban as the government of Afghanistan in May 1997. [7d] The movement has however won no other international or UN recognition, and former President Rabbani continues to be acknowledged by many, [1] including Iran and Russia, [11a] as the rightful leader of Afghanistan. [1] The Taliban has found itself internationally isolated because of its discriminatory policies on grounds of gender, the perception that it allows Afghanistan's territory to be used as a base for international terrorism and the concern over the reported production and export of illegal drugs from Afghanistan. [7i]


Thus, the Home Office's bottom line assessment remained unchanged.

The views held by other nations can be found in a number of articles. Here are few.

Testimony on the Situation in Afghanistan Before the United States Senate Committee on Foreign Relations
Author: Dr. Barnett R. Rubin, New York University
October 8, 1998

http://www.cfr.org/publication/3088/testimony_on_the_situation_in_afghanistan_before_t he_united_states_senate_committee_on_foreign_relat ions.html?breadcrumb=%2Fbios%2F115%2Fdr_barnett_r_ rubin

The Tribune
September 27, 2001
Global fight against terrorism
G. Parthasarathy
How India should play its card
President Burhanuddin Rabbani leads the anti-Taliban Northern Alliance in Afghanistan. With Saudi Arabia and the United Arab Emirates deciding to withdraw their diplomatic recognition, Pakistan alone recognises the Taliban government today. President Rabbani’s government, however, enjoys overwhelming international recognition and is strongly backed by Iran, Russia, Afghanistan’s Central Asian neighbours and India.


Islamabad Backs Away from Ties with Taliban (sort of)
[Nov 2001]


Day by day news reports about Afghanistan from 1998 to date can be found here; e.g.:


Again, we have to realize that the views held by other nations, or by scores of I Law scholars, are not relevant to the criterion which is required in US courts - what position was held by the US Executive branch.

10-12-2008, 03:41 AM
To summarize, under the Belmont-Pink rule, the governments of Afghanistan after 1995, so far as the US judicial system is concerned, were:

1. Rabbani government - recognition ended 15 Aug 1997.

2. No government - 15 Aug 1997 up through 21 Dec 2001.

3. Interim Authority (and successors) - from 22 Dec 2001.

At no point was the Taliban recognized by the US Executive branch as either the government of Afghanistan or as a "new nation".

Thus, at all times relevant to the Gitmo "War Crimes" cases, the status of the Taliban's armed forces was not that of a explicit Party to GC III. It was not the governmental representive of the High Contracting Party, Afghanistan, so far as the US Executive branch was concerned - the only criterion in US courts.

Hence, for its armed forces to come within GC III, Art. 4 (et seq.), the Taliban must have accepted and applied the GCs as a Power involved in the armed conflict under Art. 2, para 3.

This brings us back to the four questions, whose affirmative answers must be proved by the person who is asserting that affiormative:

Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

I expect that the evidence will show, to the contrary, that the Taliban did not apply the GCs; and that instances of non-compliance can be easily found during the period 1996-2001.

The Northern Alliance was not a paragon of virtue during the same period, either. But, no matter what the crimes of others may have been, proof of them does not prove that the Taliban complied with the GCs (or that it was thereby excused from such compliance).

That evidence is not merely a matter of uniforms; but goes far more to the treatment rendered by the Taliban and AQ Ansar to combatants and non-combatants who came under their control.

Comments ?

Ken White
10-12-2008, 04:38 AM
Your capacity for gathering and informing is super. Thanks

10-12-2008, 04:55 AM
most of all from Pink Bun paras, because my paralegal says they are just sooo... cute.

Thank you for the kind words - and also to this discussion board for giving me the incentive - and a place - to do it. Hope it will be helpful as background to the upcoming Gitmo trials.

My bill for the brief will be in the mail. :D

05-22-2011, 06:36 AM
This is just to bump this thread because it is relevant to this thread, The Indian role in Afghanistan (new title) (http://council.smallwarsjournal.com/showthread.php?p=121476#post121476).