Mullah Omar: Taliban Rules and Regulations

[tequila]

Not sure if this has been posted before, but FRONTLINE has a translated copy of Taliban rules and regulations as promulgated by Mullah Omar here (http://www.pbs.org/wgbh/pages/frontline/obamaswar/etc/mullahomar.pdf).

[OfTheTroops]

Wow. What can I say? This really demonstrates the nature of conflict Message V. Message as well as Soldier V. insurgent. The message rules the battlefield of the "hearts and minds."

[M-A Lagrange]

What is interesting in that message, out of the dimension of heart and mind battle, is that it is a rejection of the Geneva Conventions just as the laws passed by USA and the denial of war prisoner status.
I have not finish yet to go through it completely but it refers to Sharia as the unique law applicable in peace and war. One of the things in the Geneva Convention, part from the fact that it is a western rule born and breed regulation, is that it already recognises the Sharia as a concrete and important contribution to regulating war.

This does not cover just propaganda VS propaganda but shows the capacity of the enemy to take a decisive strategic move on the legitimacy battle field through challenging West morality in its conduct of war.
It also shows, somehow that the enemy is trying to close the second phase of Mao in revolutionary war. Promulgating laws and regulation to unify insurgents is coming just at the moment the coalition is breaking apart. We may have here also the proof of two possible evidences:
- Either the Taleb are on the verge to fall and are completely disorganised with a lost of legitimacy inside the population they are trying to “protect”. Which could be the case.
- Or the Taleb are strong enough to pass from disorganised groups conducting non coordinated guerrilla wars, each of them separately, to a united group under one command that is feeling capable to conduct a “conventional war phase”.
In both cases, the challenge is not only on the ground, it is also on the conduct of war. Taleb have been capable to shift the counter insurgency legitimacy battle field from governance to the symbols of legitimacy. In front of the positive approach of rights rule of law, they are capable to come with a tool with the apparence of rule of law based on a different referent with a negative understanding of it. But Sharia is one of the most important referent in the history of law.
THAT IS SCARY.

[jmm99]

We have some interesting detainee provisions, do we not:


Section 2

Regarding Prisoners

7 - If a local or foreign enemy is captured, they should be taken to the provincial authority immediately. The provincial authority will make a decision what to do with the captured enemy.

8 - When you capture drivers, contractors or soldiers, releasing them for money is prohibited. The provincial authority has the right to use him for a prisoner exchange. If someone wants to guarantee him, he needs to talk to the provincial authority. If the prisoner is a higher anking p erson then the IMAM assistant has the right to make a decision regarding his future.

9 - If an Afghan National Army member (ANA) is captured by the Mujahidin, the IMAM or IMAM assistant will make the decision whether to kill him, to use him for a prisoner exchange or to exchange him for money. If the captured person is converted to Islam, then the IMAM will exchange him if the captured person gives permission but there should be a pledge that he will not convert back to the infidels.

10- If the Mujahidin take people hostage and they cannot take them to their place for any reason and the hostage are infidel fighters or they are govemment workers, then the Mujahidin have the right to kill them. If the Mujahidin are not sure that the hostages are infidel fighters or government workers, then they have no right to kill them, even if this means the hostages must be freed.

11- lf an ANA or Afghan National Police member (ANP) surrender to the Mujahidin, they should not be killed. The Mujahidin should take care of them very well, no matter if they come with or without a weapon.

12- If the Mujahidin judge or the provincial authorities sentence a captured enemy to death they cannot kill him until the IMAM or IMAM assistant gives permission.

Apparently, there are three modes leading to detention, etc. - captures, hostages and surrenders. I wonder if hostage (part 10) is an exact translation.

-------------------------
M-A Lagrange:

Please provide your legal argument for your assertion that "the laws passed by USA and the denial of war prisoner status" constitute "a rejection of the Geneva Conventions".

Bonne chance

Mike

[M-A Lagrange]

I went through the document I tried to look at which articles are actually respecting the Geneva Convention and which are not.

Be careful, some articles are mix: as S2 Art9

In accordance with Geneva Convention
S1 art 2, 4,.
S2, art 8, 9, 11
S3 art 14, 15, 17, 18, 19, 20*
S7 art 36, 41
S11 art 50, 51,
S13 art 64

Not in accordance with Geneva Convention
S2, art 9,10,
S3 art 13, 19, 20*
S 7 art 36, 41

*I suspect traduction error or imprecision.

What I think is interesting is the negative approach of Law and Right in that document. Where a western document will say that authority has competencies to judge such issues, they go by that issue cannot be judge by any other authority. (see S9 art 43 as example).

Mike, we can argue long time and you know that. There is whole bunch of layers working on that at ICRC. ;)
Unfortunately, I am not in position (I do not have access to all my material) to come with illustrated argument. But the detention of terrorist without status, either or comon right or prisoner of war is a denial of the Geneva Convention.
Also, the absence of compensation for the individuals that were not recognised guilty of any crimes. This is in opposition with Geneva Convention. I would say Geneva Convention it self (1949) and the 4th protocol on civilian populations.

My point is that if you want to take for strategic base of you legitimacy the rule of law then you have to apply rule of law. If you declare that Rule of Law is what you promote, then you have to apply it also.
If you start, even one time to argue that you will not apply the Geneva Convention to one category of population and purposely do it without legal frame work then you create a precedent. In Anglo Saxon law, if I do not mistake, the custom prime on the law. So if you introduce a new custom then you create a new legacy. That you may or may not formalise by a normative act as a law. But still you do introduce a legal practice and then endorse it.

[jmm99]

Well, we could argue or we could discourse - my preference is for the latter.

We are probably coming at this from two different viewpoints: you from an Euro-centric viewpoint; I from a US-centric viewpoint. We should discuss those viewpoints.

The name Lagrange is "French", so may I posit that your legal foundation is in French Code Law or something similar ? It helps to know a little background as to legal knowledge.

In certain areas, Euro-centric law and US-centric law provide different answers to the same question. That they are "different" does not mean that either answer is wrong. Both answers may be right because of different constitutional structures - and the position of international law in those structures. Since I am sworn to uphold the US Constitution, that is the major constraint on my legal analysis. I happen to accept that constraint.

I'll think about how to present this in a brief, cohesive manner. A lot of the issues you seem to be interested in have been covered (at least to some extent) in War Crimes (http://council.smallwarsjournal.com/showthread.php?t=4921) and its links - now approaching 400 posts in 20 pages.

Regards

Mike

[jmm99]

We'll start with the Supremacy Clause (http://en.wikipedia.org/wiki/Supremacy_Clause) of the US Constitution:


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

The Constitution stands at the top of the pecking order. What are the "Laws of the United States" ? First off, except in very limited civil areas (admiralty is the major area), there is no Federal Common Law - and definitely no Federal Criminal Common Law.

So, although the US is considered a Common Law Country, its Federal Law is primarily code. Of it, we have statutes enacted by Congress (usually with Presidential approval), as well as a host of regulations and rules issued by administrative agencies - and executive orders issued by the President.

The common law does exist in the states, whose common laws and statutory laws must be applied by the Federal courts in cases where state law applies - under the Rules of Decision Act (http://en.wikipedia.org/wiki/Rules_of_Decision_Act) (which has near constitutional status).

Just as "Laws" have a "gloss" (going beyond statutes), so also "Treaties" have a "gloss" to include international executive agreements, which are of two kinds: presidential executive agreements (made by the president alone based on his constitutional powers); and presidential-congressional executive agreements (made by both branches and therefore based on the combined powers of both branches).

Now, a "Law" cannot be made "in pursuance of" the Constitution if it violates the Constitution; and a "Treaty" cannot be made under the "authority of the United States" if it violates the Constitution since the United States has no authority to violate the Constitution. Interestingly enough, each of the three branches of government (legislative, executive and judicial) has the power to determine constitutionality; although traditionally the other two branches have usually accepted the constitutional decisions of the Supreme Court.

Thus, the Constitution is definitely the highest US legal authority. What of the priority between statutes and treaties ? Again, this is a "gloss" from the Supremacy Clause (its order of Constitution, Laws and Treaties) and from other provisions as well. The bottom line is that a subsequent statute may implement a treaty (under US law, some treaties are not self-executing), interpret and clarify a treaty (which may amount to substantial amendment), and even abrogate (nullify) a treaty. US law recognizes that abrogation can have international consequences, but if a statute abrogates a treaty that treaty is nullified. Abrogation of treaties by executive order or administrative regulations or rules is another story - as the Bush Department of Justice (DoJ) found out in the Gitmo cases.

The conventions we are concerned with (Hague and Geneva) are true treaties, presented by the President to the Senate for ratification (with or without reservations). I've attached a flow chart for international laws applicable to armed conflicts. The black and white portion was swiped from either a Geoff Corn or Charlie Dunlap article; the colorful portion is by JMM.

Besides the conventional treaty framework discussed above, the issue of US adoption of "customary" international law can present itself. As to that, I would apply a strict standard. It could be adopted by a presidential executive order for matters within his powers (as traditionally defined; not as John Yoo et al defined them). It could also be adopted by statute (where the combined executive and legislative powers provide great support for validity). The Supreme Court (SCOTUS) has little power in this area (unless it runs wild). It could, for example, adopt customary international law in the admiralty area (and has done so); but, even there, it could not adopt a "customary" international criminal law against piracy (because of the prohibition against Federal Criminal Common Law).

[M-A Lagrange]

Well, I tried to come with something as good as yours.

The Block of Legacy in French Law


Block of constitution

Block of convention

Block of legacy

General principal of right

Decree + arretes (presidential and minisries)

administrative acts


The block of constitution or bloque de constitualite includes 1958 constitution, 1946 preambule and 1789 declaration of Human Rights the environment chart 2005 and the fundamental principles of the republic laws.
It represents the fact that all the norms included in it have the same hierarchical level in French Law. Also the constitution can be modified.

The block of conventions includes the international law: treaties and international conventions at the exclusion of the coutume. It also includes the European Community Laws.

The supremacy of treaties and international agreements on law, even at posteriori, has been stated by arrèt Nicolo (CE, Ass., 20 oct 1989). It has been extended to the European Commission Laws and regulations. But constitution keeps its primacy regarding domestic laws (CE, Ass., 30 octobre 1988, Sarran et Levacher. ).

The primacy of constitutional norms is limited as there are several systems of constitutionality control. Such control can be applied before promulgation of a law by the conseil constitutionel. But it is impossible for an individual (a physical person or a moral person) to take the constitution as a base to oppose to a law once it is in application. A new law that abrogates the previous one has to be promulgated.

Also, the jurice prudence does not have the same value in French Law. Robespierre and Saint-Just thought that it was not acceptable in a democracy to use jurice prudence. They believed it was an abnormal interference from judiciary power on legislative power and against the separation of powers.

As a direct consequence, judges are nominated as an administrative corps and not elected. The judge say the law but cannot interprets it.

I hope this short description of the difference will help. As you see, there is huge difference as the constitution can be modified, especially concerning European Union Laws and regulations. Also as International treaties have a higher normative status than domestic laws.
In France, I believe that the president would have never been in position to pass any kind of decree, administrative order or regulation that would go against a Convention or a treaty that has been signed and ratified.

Concerning the problem of detention and more generally the judiciary law in application in war, in France we do not have death penalty, it is unconstitutional and has been abrogated. The only laws that still have death penalty is the military law of exception that is in application only for the soldiers when in operation or if France declares the state of war and promulgate a decree or law stating that military law will apply. President can declare a state of exception but it must be revised regularly (every 6 month at least if I well remember) by the parliament and has to be limited in time with a clear dead line.

So, for civilians or opponents prisoners during military operations, the Geneva Convention always applies without any exception. In Ivory Coast, a case occurred that a prisoner died during his transfer. Then the soldiers and the chain of command have been under investigation. The same case happened in 2003 in DRC. There also, soldiers and officers responsibilities have been under investigation.
My point is not to compare or to show that those or those are better. I just believe that a strict respect of Geneva Convention is a tool to protect all parts. As stated by a college from ICRC, during war military use force and no one challenges that. The objective is to regulate it to preserve all parties.

Concerning our case, what is interesting is that Shariat is placed above all. Even above the laws and constitution of the Islamic State of Afghanistan.
The introduction is a quote of the Quran which needs to be exanimate, even in Arabic. (Unfortunately I do not read Arabic). Quoting is a common practice in Islam but the thing is the choice of the quote: you can quote all of a verse, a part of a verse, the interpretation of a verse, a version of a verse…
But still it refers at the Law of God as the referential law which is Shariat. This is in contradiction with the art4 S1, where Shariat is considered as a secondary law. Also the art 67 S13 gives the primacy to Afghanistan Islamic Emirates Laws.
The question would be what are the Afghanistan Islamic Emirates Laws?

[Igel]

Interestingly there appear to be variations between french and german constitutional law.

In Germany international treaties themselves have no immediate domestic effect.

Treaties that regulate the political relations of the Federation or relate
to subjects of federal legislation shall require the consent or participation,
in the form of a federal law, of the bodies responsible in such a
case for the enactment of federal law.
They bind the german State, but not a german individual, not even a german goverment agency. Only when the international treaty has been transfered through a bill into german law it binds individuals or goverment agencys. International treaties have the same status as all other bills.
As the constituional court has the authority to review german bills in regard to their constitutionality, it can rule the transfer bill to be in violation to the basic law and dismiss the bill. Then the german state commits a violation of internation law, which binds Germany to this treaty, however the treaty has no domestic effect.

The only expection is Art. 25 of the basic law.

The general rules of international law shall be an integral part of federal
law. They shall take precedence over the laws and directly create rights and
duties for the inhabitants of the federal territory.
It is unclear if the general ruls are on the same level as the constitution, a level below the consitituon but above laws, or even above the constituion. However treaties arn't considered "general rules".

The need of a transformation bill even applies to european legal acts. However since the creation of european civil rights the german constitutional court has (in their view) voluntarily relinquished to review german bills who only transfer european law. Instead it will respect the rulings of the european court in regard to the compliance of the european act with european civil rights. The most important part of the recent Lissabon ruling was, that the consitutional court has hinted that it is willing to change course here.

In that respect I don't see the Taliban Rules as anything special. They simple do what every state (or group who think of themselves as a state) does. They act according to their domestic supreme norm (the scharia). As the Taliban havn't ratified the geneva treaty they don't even violate it.


M-A Lagrange point was:


My point is that if you want to take for strategic base of you legitimacy the rule of law then you have to apply rule of law. If you declare that Rule of Law is what you promote, then you have to apply it also.
If you start, even one time to argue that you will not apply the Geneva Convention to one category of population and purposely do it without legal frame work then you create a precedent.

To which jmm99 answered with a description of US constitutional law.

I realize that the US constitution is superior to international law. And that the US goverment is forbidden by the constitution to enact international treaties which violate the US constitution. But I don't understand how the US consitution prohibits the USA to follow specific articles of the existing geneva treaty. In my limited view of the US consitution and the geneva treaty there arn't any conflicts between those two. In that respect a violation of the geneva treaty by the USA (not saying that it has occured) is not obligatory because of the US constitution but a voluntary decision of the US goverment.
So isn't the real question: Has the USA violated the Geneva Treaty?

[jmm99]

what could be an interesting thread. M-A and Igel have added French and German law to the mix. Anyone else is certainly welcome.

I have to read both posts (M-A and Igel) more carefully and compare them and US law. Some homework to do.

The points by Igel (numbered by me), I'll address now:


[1] To which jmm99 answered with a description of US constitutional law.

I realize that the US constitution is superior to international law. And that the US goverment is forbidden by the constitution to enact international treaties which violate the US constitution. [2] But I don't understand how the US consitution prohibits the USA to follow specific articles of the existing geneva treaty. [3] In my limited view of the US consitution and the geneva treaty there arn't any conflicts between those two. [4] In that respect a violation of the geneva treaty by the USA (not saying that it has occured) is not obligatory because of the US constitution but a voluntary decision of the US goverment.

[5] So isn't the real question: Has the USA violated the Geneva Treaty?

Answers:

1. I started off with US Con Law because that is the basic framework on which US incorporation of international law rests. Igel's understanding of the supremacy of the US Constitution is correct. The approach is perhaps somewhat closer to German than French law (as posted by M-A and Igel); but it is different from both. To practice Comparative Law, which is exactly what we are doing here, we have to understand the simularities and differences between our respective basic constitutional systems and their relationship to international law. To put it simply, we have to shoot the 25m, 50m and 100m targets before taking on the 200m and 500m targets.

2. To my knowledge (off the tip of my skull), the Supreme Court has never found a US Treaty (presented by the President and ratified by the Senate) to be unconstitutional. It has found executive agreements (of both types, IIRC) to be unconstitutional. Someone (JTF or Ken, my guardian angels ?) please correct me, if I am wrong. As to the 1949 Geneva Conventions, their constitutionality is not questioned (although they were ratified with some minor limiting reservations; and since SCOTUS does interpret the law, the US interpretations may be different from the views in other countries). Be very much aware, that the US has not ratified Additional Protocals I and II to the 1949 GCs (mainly because of AP I). Since I made no claim that "US consitution prohibits the USA to follow specific articles of the existing geneva treaty", I don't know where that comes from.

3. I see no constitutional conflict either as to Hague or to the 1949 GCs (subject to all ratifying reservations and also subsequent interpretations, which may differ from those in other countries). I don't have a specific example in mind (we may get there); but let us say the German or French interpretaton of a specific GC article is "A" and the US interpretation is "not-A". The interpretation "A" could offend the US Constitution, whereas "not-A" would not offend. Both interpretations may in fact be reasonable. Law is not an exact science and reasonable people may differ in both inferences and interpretations.

4. Agreed that, if the US government (as an official national policy, as opposed to an abrogating statute duly enacted by Congress) adopted a policy (presumably through some executive order or administrative regulation and rule), which policy was contrary to a provision of the 1949 GCs as ratified and as subsequently interpreted and applied, that rogue policy, if not found to be unconstitutional or in violation of statute or of the treaty itself, would constitute a breach by the US (as a nation) of that 1949 GC provision. Please read my first sentence very carefully - it has some caveats. We then would have to consider whether it was a "grave breach" and what remedies are available. We are into the 200m and 500m range targets. Be patient.

5. In due course, we should look at how everyone in the World has accepted and applied the GCs (or not accepted or not applied them), and how everyone in the World has in some way breached them. That discussion would probably extend beyond my lifetime; but, in any event, discussion of GC breaches requires an exact fact situation and is not so simply answered as the question is put: "has such or such nation or non-nation violated the GCs ?"

[Igel]

I'm happy that you replied. I also think this could be a very interesting topic.



Since I made no claim that "US Constitution prohibits the USA to follow specific articles of the existing Geneva treaty", I don't know where that comes from.

That came from my understanding of your post. I assumed it was a refutation of M-A Lagrange critic on US policy regarding the genevea treaties. I further assumed that you were presenting US Constitutional Law to show that it somehow prohibits the US to follow specific articles of the geneva treaty. I readily concede that these were just assumptions on my part and nothing you wrote.


4. Agreed that, if the US government (as an official national policy, as opposed to an abrogating statute duly enacted by Congress) adopted a policy (presumably through some executive order or administrative regulation and rule), which policy was contrary to a provision of the 1949 GCs as ratified and as subsequently interpreted and applied, that rogue policy, if not found to be unconstitutional or in violation of statute or of the treaty itself, would constitute a breach by the US (as a nation) of that 1949 GC provision. Please read my first sentence very carefully - it has some caveats. We then would have to consider whether it was a "grave breach" and what remedies are available. We are into the 200m and 500m range targets. Be patient.

I thought a bit on how to reply to your last post. I have the strong feeling that you want to discuss something specific. But to be honest I don't really know where you want to go.
I can imagine several 200m marks lying in very different directions. Right now I have nothing specific in sight, so I think its best if you lead the way.

[M-A Lagrange]

I did some home work and still have more to carry. Especially on the French Law. The difference would come from 1789 Universal Declaration of Human Rights that has the same position than the constitution and therefore in France, no treaty or law can go against.

Concerning the combatants, well…
The 3rd GC of 1949 defines the status of combatant in Art4. The treatment reserved to combatants is also valid for the persons that do not enter in the status of combatant by derogating to Art4 until a tribunal did status on their quality of combatant or on their quality of civilian (Art5). Even the civilian population taking arms without having all the qualitative distinctions of Art4 line 1 and 2. (Art4, line6)
I do not see where someone is not falling under GC.
The main issue with Taleb for example would be the uniform. This has been long ago accepted that uniform is not necessary. The main points of Art4 line 2 are: having a chain of command and carrying openly weapons. In war context, it is recognized as sufficient. Knowing that GC do not apply during riots. For the practice of terror, then the operations of British Air Forces during WWII on German cities would be used as a precedent justifying the use of terror in military operations. (not my cup of tea but it happened). Then the use of terror is part of the coutume of West. Does not say it makes it legal, just pointing the fact that the Art4 line2 d) can be challenged. And concerning terrorism should not.

The difference between banditry or riots and war will come from the intensity and the duration of the combats that will qualify the situation as war Cf :TPIY, Le procureur c/Dusco Tadic, Arrêt relatif à l'appel de la défense concernant l'exception préjudicielle d'incompétence, IT-94-1-A, 2 Octobre 1995, par.70.
On this, the US DoJ already lost a case to qualify a terrorist action as war action. (I do not have the reference right now but I believe it was about an attack on an Embassy in Peru). They tried to argue that a 4 hours combat (I am not so sure of the total duration but was less that a day) was a situation of war based on the element that the assailants used war weapons. The quality of the means, the weapons, was not sufficient to qualify the action as war action due to the duration of only 4 hours.
I believe that 2001 action in Afghanistan would be qualified as war. Especially if based on intensity and duration.
So once the quality of war is establish all combatants fall under the Geneva Convention. The main issue here would be does the USA recognize the TPIY as a legitimate legal structure.
USA did not ratify the Rome Status and are not recognizing the International Penal Court to not face such problem. But still the statement of TPIY is preceding 2001 and the Patriot Act and any administrative act from the Bush administration. Logically, it should apply or taken as argument to search for application.

Otherwise, prisoners fall under banditry and it falls under civilian law. And there you will fall under the Human Rights Convention and the Convention on Torture. Did the USA ratify the Universal Declaration of Human Rights? I believe yes. The one on torture, I am not so sure.

In both cases, this does not stop USA to arrest and jail dangerous terrorist. What it obliges USA to, is to give them trial and therefore an open scene to express their views. Then DoJ would have had to make the proof of their guiltiness. That may have been an issue but I doubt of it.

Also, taking the ICRC line, in March 2008, they made a statement that can be resumed to: as the ratification of GC is universal, all parties are entitled to respect GC. Basically all countries did ratify GC therefore all countries are bound to respect it and there is no room to declare that you will not respect it. (It took them some time to realize that every body did sign the paper… By the way)
ICRC legal line is much in accordance with French Law than USA law as they place the Universal Declaration of Human Rights from UN above all.
But there we will go to discuss Rawls theory of distribution of justice.

And finally, if a president of USA can by administrative act turn a treaty bounding USA, then can't he turn the constitution?
Then the constitution is no more protecting the people of America from dictatorship. As wrote Sinclair Lewis: it can't happen her. But did it not just happen here? Then the precedent created to protect civilian and soldiers from inhuman treatment is a problem.

Concerning the Mullah Omar rules. the question that comes to me is what version of Sharia they use and where does it fall in the hierarchy of law. Is the Sharia the supreme Law, even above the constitution? Is Sharia the reference of the constitution, as for Human Rights in French Law? Or is Sharia the referal for domestic laws? Concerning the GC, as ICRC does recognise Sharia as a coutume in war conduct, does Sharia have a higher rank in hierarchy for the Taleb or as for ICRC, is Sharia a contribution to GC?
Also, GC are not bound to a government but to a country. So as Afghanistan did sign and ratify GC in the past, then Taleb have to apply it. But do they recognise treaty and conventions that were ratify before they came in power?

[jmm99]

I love this:


from Igel
I readily concede that these were just assumptions on my part and nothing you wrote.

You have already learned how to gracefully concede a point - an art which stands one in good stead. I'll have to try to remember that. ;)

As to this:


from Igel
I have the strong feeling that you want to discuss something specific. But to be honest I don't really know where you want to go.

The thread will take itself wherever it goes; but I do have a suggestion. Since the general forum is "small wars" (petites guerres) and this thread is titled "Mullah Omar", the geographic locale should be Astan. There we have a true plethora of legal systems to compare. Simply looking at the nations involved, we have the Coalition (all having slightly different approaches to the laws of war - and the laws of peace) and Afghanistan represented by the Karzai government. I leave aside the neighbors and the warlords.

Then, there are the non-state actors: International organizations (UN and NATO); NGOs and the belligerents Taliban (multiple groups) and AQ. They too have their legal regimes for comparison.

I expect the focus would be on the protections afforded combatants (whether they fall under GC III, Art. 4, et sec; or under Common Article 3) and those afforded civilians under GC IV.

There are also some grey areas. One is whether the laws of war should apply at all to certain groups (e.g., AQ), or should they be handled solely as a law enforcement matter (as the Eminent Jurists Report holds). Another is the applicability of Additional Protocals I and II.

Please be aware and understand that I am not a proponent of the John Yoo et al legal memoranda - these links from the War Crimes thread: here (http://council.smallwarsjournal.com/showpost.php?p=50350&postcount=38), here (http://council.smallwarsjournal.com/showpost.php?p=50369&postcount=40), here (http://council.smallwarsjournal.com/showpost.php?p=68147&postcount=225), here (http://council.smallwarsjournal.com/showpost.php?p=68148&postcount=226), here (http://council.smallwarsjournal.com/showpost.php?p=72467&postcount=292), here (http://council.smallwarsjournal.com/showpost.php?p=72469&postcount=293), here (http://council.smallwarsjournal.com/showpost.php?p=72522&postcount=295), here (http://council.smallwarsjournal.com/showpost.php?p=72558&postcount=296) here (http://council.smallwarsjournal.com/showpost.php?p=72584&postcount=300), and here (http://council.smallwarsjournal.com/showpost.php?p=82521&postcount=376). And elsewhere in the forum via a general search for "Yoo": here (http://council.smallwarsjournal.com/showpost.php?p=77134&postcount=56), here (http://council.smallwarsjournal.com/showpost.php?p=77040&postcount=46), here (http://council.smallwarsjournal.com/showpost.php?p=68950&postcount=11), here (http://council.smallwarsjournal.com/showpost.php?p=69007&postcount=19), and here (http://council.smallwarsjournal.com/showpost.php?p=69023&postcount=23).

I suggest everyone read these links, which are less a negative attack on Yoo; but rather a positive expression of my approach to Common Articles 2 and 3 of the 1949 Geneva Conventions. Those in my opinion are the keys to legal definition of the combatants and distinction between combatants and non-combatant civilians.

The Hamdan thread (http://council.smallwarsjournal.com/showthread.php?t=6118) also has a great deal of information on Astan's constitutional history, its governments and recognition of them (primarily from the US and UK viewpoints). The Lawfare thread (http://council.smallwarsjournal.com/showthread.php?t=7665) also has some excellent links to articles which address the issues I suggest.

However, also understand that I am a traditionalist as to the laws of war, starting with the Lieber Code 1863, General Order 100; and that the US military generally over the years has got it right. E.g, I can't see where too much exception can be made to Joint Publication 3-63 (http://fas.org/irp/doddir/dod/jp3_63.pdf), 30 May 2008, Detainee Operations.

So, that's the homework assignment - links that took me many, many hours to research and source (apologies for any broken links in the postings, but that's the internet and there's always Google Advanced Search).

Cheers

Mike

[jmm99]

Much of what I've said to Igel applies to you. I've been pounding at this for about 3 hours and very soon have to do something else.

The links in the post above should keep you busy for a while; and they will answer most, if not all, of the issues re: GC Common Articles 2 and 3, and where to go in GC III and IV once past the CAs.

As to this:


from M-A
I do not see where someone is not falling under GC.

I also do not see a hole in the GCs, through which a person can fall and not be covered by at least one GC article. That was one disagreement I had with John Yoo et al. I had violent disagreement with his concept of unlimited presidential powers, especially as applied domestically in the US (never implemented and in effect shelved by President Bush II).

As to your jump for the Taliban to Article 4 of CG III, you first have to get them past Common Article 2. I attach a pdf file which has the text and the commentary to Common Article 2, together with my brief comments. The flow chart, as I see it, puts the Taliban (and AQ) under Common Article 3, or in some cases under law enforcement rules (not under the laws of war). Civilians (not involved in either group) are unquestionably under GC IV, which has its own detention provisions if they are security risks.

As to this:


from M-A
Concerning the Mullah Omar rules. the question that comes to me is what version of Sharia they use and where does it fall in the hierarchy of law. Is the Sharia the supreme Law, even above the constitution? Is Sharia the reference of the constitution, as for Human Rights in French Law? Or is Sharia the referal for domestic laws? Concerning the GC, as ICRC does recognise Sharia as a coutume in war conduct, does Sharia have a higher rank in hierarchy for the Taleb or as for ICRC, is Sharia a contribution to GC?
Also, GC are not bound to a government but to a country. So as Afghanistan did sign and ratify GC in the past, then Taleb have to apply it. But do they recognise treaty and conventions that were ratify before they came in power?

Yes, these are the questions I want to eventually discuss.

But, I've put up 15 links, two threads and one JCS publication that pretty much lay out my position on the legal framework that needs to be understood before tackling Sharia law. We may all have somewhat different legal positions and I'm not trying to force a consensus. I think you will appreciate the difficulties faced by three Coalition military lawyers, from different coiuntries, trying to come up with a consensus answer.

Don't get rained on too much. :D

Mike

[Igel]

Jmm99,

Thanks for compliment! But I only use this art if I myself am convinced that I was wrong. In my personal view that happens, of course, very seldom; so don't expect to much conceding... :D
Also thanks that you promoted me to the rank of a military lawyer, but I'm still only in education, just having completed my 1st Staatsexamen (http://en.wikipedia.org/wiki/Staatsexamen).
I'll read your links, but it may take a bit. Then I will also try to reply to your last post, M-A Lagrange.
To be honest, I'm very happy that you gave me this "homework". It feels good to engage with an area of law that interests me. For the time, no more learning for boring warranty claims etc.


---

Till I read the links, maybe a related question. Please note, that the following is up to now only an academic discussion. As far as I know there haven't been any court cases.
The basic law guarantees several basic rights (civil rights). These are binding.

The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.

Now some (in science and far-left politicians) have concluded that the Bundeswehr as part of the "executive" is fully bound by these basic rights. So for example if the Bundeswehr would a arrest a suspected terrorists, it would be bound by Art. 104.

(1) Liberty of the person may be restricted only pursuant to a formal law and only in compliance with the procedures prescribed therein. Persons in custody may not be subjected to mental or physical mistreatment.
(2) Only a judge may rule upon the permissibility or continuation of any deprivation of liberty. If such a deprivation is not based on a judicial order, a judicial decision shall be obtained without delay. The police may hold no one in custody on their own authority beyond the end of the day following the arrest. Details shall be regulated by a law.
(3) Any person provisionally detained on suspicion of having committed a criminal offence shall be brought before a judge no later than the day following his arrest; the judge shall inform him of the reasons for the arrest, examine him, and give him an opportunity to raise objections. The judge shall, without delay, either issue a written arrest warrant setting forth the reasons therefor or order his release.
(4) A relative or a person enjoying the confidence of the person in custody shall be notified without delay of any judicial decision imposing or continuing a deprivation of liberty.

This is obviously not very practical in the middle of Afghanistan. Furthermore one could contest, that the Bundeswehr may only transfer the arrested to Afghan Authorities if they would give the suspect the same rights, he has under the German constitution.

To give you another example, Art. 19 IV could be applicable

Should any person’s rights be violated by public authority, he may have recourse to the courts.
Meaning the suspect could seek a judicial review of the Acts of the Bundeswehr while still in custody. If one would strictly apply german administrative dispute law the Bundeswehr would probably be forced to hold him in custody till its case is reviewed and only then he could be transferred to Afghan Authorities. In extreme case the administrative court (in Germany) might even order a release.

This is all not very practical and has been criticised. One stated that the Bundeswehr in Afghanistan isn't part of the "executive" because it implements international law. A first start for this discussion can be found here (http://www.faz.net/s/RubD5CB2DA481C04D05AA471FA88471AEF0/Doc~ECC909754463647D8BAD0490EFE02B8A9~ATpl~Ecommon ~Scontent.html) (in German!).

So I'm interested how this is handled in the USA. Because if I read the Bill of Rights, I think that some of it Rights would apply to Foreigners in Foreign Countries. For example the Sixth Amendment only speaks of "criminal prosecutions" not of "criminal prosecutions against US citizens or in the USA".
[My knowledge of the Bill of Rights is restricted to the text itself. So bear with me, if there is some obvious common knowledge answer.]

[J Wolfsberger]

I don't have time at present to dig out the links to the Geneva and Hague Conventions. For those who do, the relevant sections with regard to behavior of US and NATO troops would seem to be:


The definition of “protected persons.” That is, those individuals the conventions are intended to cover.

The process for determining whether an individual fits in a category of “protected person.” That was the purpose of the tribunals. Unfortunately, as a by product of the level of literacy, language comprehension, or the medias’ political narrative, many people read or heard “tribunal” as “trial.”

Treatment of individuals who are determined by the tribunal not to be protected under the Conventions. On this score, I believe they are silent.

The phrase "unlawful combatant" does not appear anywhere in any of the conventions.

Hope this adds some clarity.

[J Wolfsberger]

I had understood that the US was not signatory to any of the Conventions, but Congress did pass a law requiring that they be honored. A fine distinction, I know. Is my understanding incorrect? :confused:

[jmm99]

Thanks for the German legal article. Seriously, cuz it evidenced again to me that four years of university German 45 years ago are locked away in back-mind filing cabinets with very rusty drawers. Got some, but not enough to be coherent. :o

As to the more substantial question (without any claim to any expertise in German law), the Basic Law provisions, if that is all there is, may just write the Laws of War out of the German "Law Book". That seems unlikely, but then the Basic Law goes back to early post-WWII days when we (US and the three other major ETO allies), in our infinite wisdom, pushed for a de-militarized Germany, where the Laws of War would be quite irrelevant.

If you could summarize the arguments for an independent German military law and Laws of War, that would be appreciated. IIRC, Fuch once commented that, from his perspective, military law is not relevant.

----------------------------
As to this,


from Igel
So I'm interested how this is handled in the USA. Because if I read the Bill of Rights, I think that some of it Rights would apply to Foreigners in Foreign Countries. For example the Sixth Amendment only speaks of "criminal prosecutions" not of "criminal prosecutions against US citizens or in the USA".

I have some answers - and my own pet scheme (at the end).

The answers are not simple. The general answer is that some Bill of Rights provisions might apply to non-US nationals whose rights are adjudicated before a US tribunal (note I did not say a US court), but others clearly do not because they would not apply to a US citizen tried before the same tribunal. The right to a jury trial is one that does not apply.

Let's take a current example: a Taliban member (let's say he had AK in hand to simplify matters) is taken prisoner by a US unit in Astan. Now, he might be simply handed over to the Astan authorities, ending the matter as far as the US is concerned. But, if he is detained in US custody, matters have to proceed as prescribed in the JCS Publication 3-63 (http://fas.org/irp/doddir/dod/jp3_63.pdf), Detainee Operations.

If the detainee disputes his status, his rights are as follows:


g. If a detainee’s status is in doubt in an international armed conflict, a tribunal will be conducted IAW [in accordance with] Article 5, GPW. The tribunal, convened by a commander exercising general courts-martial convening authority, will determine the status of an individual who commits a belligerent act and is captured by U.S. forces when there is doubt as to the individual’s status. The protections afforded EPWs under the GPW will apply to such individuals until their status is determined by the tribunal.

This tribunal must consist of three field grade officers (O-4 min.), a reporter who is a JA officer (O-3 min) and another officer to act as the detainee's "personal representative". This is not a new concept, but it seems to me to be not the highest and best use of five military officers.

A note as to what has been claimed by detainees. While much has been said about classifying (as opposed to treating) Taliban detainees as EPWs, that is not a claim that is being made by them. They are not asking for status as GC III EPWs, but as GC IV civilians. Two reasons for that: (1) the Federal courts (from SCOTUS down) have made it fairly clear that a Taliban combatant will be classified under Common Article 3 and not under GC III; and (2) GC IV civilian status is a ticket out, whereas GC III EPW and CA 3 status are not.

In a sense, this is end of story if the detainee is an alien and is held in foreign territory. However, the Gitmo detainees added two twists to the story. The first was the CSRT panels, which operated much the same as the detention procedure with the same end - classification of the detainee under the proper GC. In the series of SCOTUS Gitmo decisions (and the subsequent lower court decisions), the courts made it pretty clear that the CSRT process was satisfactory for battlefield classification, but would not hold up to basic due process requirements for permanent classification.

The second twist was the military commissions. Now, they as finally evolved are very similar in composition and procedures to the courts-martial process under the UCMJ, which meets constitutional requirements. The primary purpose of the MCA (Military Commissions Act) was to try war and terrorist crimes, and not to determine the detainee's classification. However, the military judges in the few cases tried held preliminary hearings to determine classifications (because they had doubt about the CSRT process).

-------------------------
Here is a modest proposal which solely addresses the detainee classification process. It could become more important if Bagram is determined to be subject to habeas corpus - and also could have avoided the Gitmo habeas mess that we presently have before the DC District and Circuit courts.

This proposal provides for an independent magistrate (note I did not say an Article 3 Federal judge). Please note that habeas corpus does not apply where there is an alternative due process tribunal that adjudicates the issue (e.g., the 100s per day deteminations by magistrates that there is probable cause to detain the prisoner in our domestic criminal law cases).

1. Continue the Detention Operations process, if there is a doubt as to status or if the detainee claims other than Common Article 3 status, as an initial screening process. That would not require tying up 5 officers; and could be done by one or more adequately trained officers or SNCOs (the latter might well be the best choice - I'm thinking of you, Ken :)). If the detainee does not like the result, then we go to Step 2.

2. The independent magistrate would be a lawyer, and in effect an administrative judge for the agency who appoints him. What agency ? I would say DoS because we are dealing with a tribunal in a foreign land. Since that magistrate would be doing nothing else but detainee cases, he or she would be up to speed as to the ruling case law. The DoD could be involved with a JA as "prosecutor" to present the probable cause to hold the detainee. The DoS could also have on hand a "public defender" to represent the detainee.

Is there precedent for this ? Yes, for better than a century, the US had consular courts (conducted by a diplomatic representative) which had jurisdiction up to and including the death penalty - without appeal to a higher court. Those were held to be constitutional. They were terminated during WWII since they were not being used that much and smacked of colonialism.

Just a thought - which would certainly be cheaper and more efficient than the present process.

[J Wolfsberger]

Here is a modest proposal which solely addresses the detainee classification process...

This proposal provides for an independent magistrate (note I did not say an Article 3 Federal judge). Please note that habeas corpus does not apply where there is an alternative due process tribunal that adjudicates the issue (e.g., the 100s per day deteminations by magistrates that there is probable cause to detain the prisoner in our domestic criminal law cases).

1. Continue the Detention Operations process, if there is a doubt as to status or if the detainee claims other than Common Article 3 status, as an initial screening process. That would not require tying up 5 officers; and could be done by one or more adequately trained officers or SNCOs (the latter might well be the best choice - I'm thinking of you, Ken :)). If the detainee does not like the result, then we go to Step 2.

2. The independent magistrate would be a lawyer, and in effect an administrative judge for the agency who appoints him. What agency ? I would say DoS because we are dealing with a tribunal in a foreign land. Since that magistrate would be doing nothing else but detainee cases, he or she would be up to speed as to the ruling case law. The DoD could be involved with a JA as "prosecutor" to present the probable cause to hold the detainee. The DoS could also have on hand a "public defender" to represent the detainee.

Sounds reasonable. But your reference to habeas curpus puzzles me. Are you saying these two steps would eliminate the need for sparate hc hearings?

[jmm99]

Hi John

As to this:


from JW
I had understood that the US was not signatory to any of the Conventions, but Congress did pass a law requiring that they be honored.

The US signed all 4 1949 GCs and they were ratified by the Senate (with some minor reservations - and in the English translation). The 1977 Additional Protocals I and II were signed by the US diplomatic representative subject to ratification by the Senate, which refused ratification. IMO, the Senate did so for good reasons that still persist (there are articles on this in the Lawfare thread).

Some AP I and II provisions (in fact, quite a number of them) were substantially enacted into positive law by four acts: War Crimes Act, Anti-Torture Act, Detainee Treatment Act and the Military Commissions Act.

Hope this helps on the first question.

As to this:


The phrase "unlawful combatant" does not appear anywhere in any of the conventions.

That came from the Bush II administration and was enacted into positive law in the Detainee Treatment Act and the Military Commissions Act.

My personal opinion is that this was an unfortunate choice of words because it emphasizes the low level guy with an AK, to the exclusion of the higher ranking cadres and infrastructure people who are much more HVTs.

In a sense, no person is "unprotected" by the 1949 Conventions - all have to fit in somewhere. The US courts have chosen Common Article 3 as a "home" for those who do not fit into the 4th and later articles of GC III and IV.

In the sense of combatant immunity, "protected status" applies only to those getting past Common Article 2 and meeting the requirements of Article 4 et seq of GC III.

Regards

Mike

If JMM were upheld by SCOTUS on this:


Are you saying these two steps would eliminate the need for sparate hc hearings?

Yes.

[jmm99]

I typed my answer to you a bit too quickly. Haste makes waste.

Since I made the independent magistrate in Step 2 an administrative judge, the Administrative Procedure Act (APA) would most likely require review of the case by an Article III court (either a US District Court or Court of Appeals).

I posit that the magistrate in the Step 2 hearing would make findings of fact based on a complete record of admissible evidence (including both unclassified and classified evidence - the latter being protected as usual).

The cleanest way to meet the APA would be to provide for an appeal to the DC Circuit Court of Appeals, where the magistrate's findings of fact would be conclusive if made on substantial evidence contained in the complete record (the last requirement to prevent cherry-picking). Errors in matters of law are always reviewable.

So, a Step 3 would have to be added to the process.

Mike

[M-A Lagrange]

Hello every body,

I am trying to catch up and as some know it where I am when it rains...

Mike, I read your comments on the art2 and 3 and your questions.
I come with some comments and begining of response to your questions.

If US have the liberty to recognize or not a government, US do not have the liberty to determine who is a High Contracting Party, it is Swiss as depositary of the signature, ratification and adhesions. (from my understanding).
The paradox is even expressed in your comments: Afghanistan never lost his status of High Contracting Party, while US did not recognize the Rabbani government, even before 2001.

Art 1, 2 and 3 are common to all the GC just as the final dispositions of all the GC. For GC3 it is art 133 to 143.
US ratified the GC3 with the only reserve that they will not recognize the use of the symbol of the red cross and the death penalty.
US had the obligation to provide written notification to Swiss Government of reserve on contracting party to denounce the GC. In that case, only US would had been no more bound to the obligation to apply the GC but also would not have been protected by GC. US did provide written notification concerning the recognition of South Viet Nam (18/01/1974) but not concerning Afghanistan.

Also, denouncing the GC takes 1 year and does not apply for parties at war or conducting military operation in the territory of another party. So even if a written reserve was given in time to Swiss government it would not had apply. (Art 142 GC3)

I understand the fact that US does not recognize any higher legal authority than its constitution would be the same with France with the addition of the universal declaration of Man Rights.
But still, the question is that Afghanistan what ever was its government was still a High Contracting Party and that the conflict occurred between two High Contracting Parties so the paragraph 1 of the Art 2 should had apply.
The quality of international conflict is not stated in the Art 2 paragraphe 1 it is induced by the fact that High Contracting Parties are government representing Nations. So an orthodox understanding and application of GC could be that 2001 operations in Afghanistan were actually falling under art2 paragraph 1.
There US have applied their understanding of recognized government and derogated to its obligations concerning an application stricto sensus of the GC. Also the US did pass an administrative act that would not have been possible in France. (People have rights, you have to preserve that).
This, in my understanding of US Law is possible only because of the status of the constitution that would stipulate the obligation of government administration to protect US citizen. (Which is ok for me)
What I have difficulties to figure out is the consequences of the precedent for any other treaty between let say US and France the day US does not recognize French government as a legitimate government.
Also, there is no designated body given for the settlement of such precedent in GC interpretation.
We have here a juridical question on the difference between High Contracting Party to the GC status and the recognition of a Government. I cannot answer that question and I believe that the answer can be given only by the permanent court of La Haye. Or would be left to each signatory appreciation but it is against the spirit of the GC. (Which does not count but is the way things have been handled).
For France, it would be against the 1789 Universal Declaration of Man Rights. The position is simple: human being have rights. The only question is what legal status has the concerned individual and then which rights goes with.
The Conseil Constitutionel would definitively size the question. By definition, in French Law, the individual must have rights, their rights cannot be denied. We have the same problem with criminals that are considered as danger for the society and have a law saying they will stay, after serving their sentence under medical detention. This law is highly controversial and is we by many as a breach in the legitimacy of Law. Once you serve your sentence you have to be released (that is my position) despite the fact you are a danger for the society. You cannot detain someone on the base he may be a danger. If you really want to put someone out of the system, you can sentence him for life (35 years in France) without possibility of revision of the sentence. (So he will serve 25 years). After you can put him under strict control with a possibility to serve another life sentence. Otherwise the charactere of justice (the second chance) is abandoned by the Law.

Secondly, the Art 1 is even larger as all High Contracting Parties, including US or France or Germany, have the obligation to apply GC3 (or 1,2, 4) in all circumstances. In my understanding that would mean that even if aliens from Mars were at war with France, France would be bound to apply the present GC. There is no definition of the opponent or the conflict status involved.
I would take this article to legitimate that anyway what ever are the circumstances, France is bound to apply the GC3. Here also my job is easier as France put the 1789 declaration of Man Rights at the same level as her constitution. My only question is in which box do I put the bonhomme.

But what ever, Art 3 fully applied to the situation and applies to the actual situation.

Now it is interesting to look at Afghanistan reserves and comments on GC.

PS: Concerning the Rawls theory, I am in position to discuss it only after several scotch very late at night, definitively not during the day. It is out of the subject and too high for me.

[Igel]

jmm99, First of all thanks for the description of the appliance of foreigners to the Bill of Rights. Lots of stuff to think about. I fear, I lack the background knowledge of US law, especially administrative law, to make any meanigful comment right now.


If you could summarize the arguments for an independent German military law and Laws of War, that would be appreciated. IIRC, Fuch once commented that, from his perspective, military law is not relevant.

What do you mean with "independent German military law and Laws of War"? There exist various laws which regulate the military and give guidelines how a war has to be fought. Do you mean something different from that?


That seems unlikely, but then the Basic Law goes back to early post-WWII days when we (US and the three other major ETO allies), in our infinite wisdom, pushed for a de-militarized Germany, where the Laws of War would be quite irrelevant.

I think this time the USA aren't at fault for Germany problems. ;) Problems mainly result from an interpretation of the Basic Law during 60 years of peacetime, with no look at what that means for wartime, especially small wars. But I also want to include M-A Lagrange point.


For France, it would be against the 1789 Universal Declaration of Man Rights. The position is simple: human being have rights. The only question is what legal status has the concerned individual and then which rights goes with.

I think we have to differentiate between two different levels:
1. what a state is bound by international law (especially the Geneva treaty) and
2. what he is bound to by his national law.
I haven't fully read jmm99 links about the international law side yet, so i leave that aside. However, as LM-A Lagrange rightly pointed out, international law can be interpreted by one, common instance: the Hague. So my guess is, that there shouldn't be that much differences, if everyone follows the Interpretations of the Hague. Of course differnces could still existed because of what jmm99 pointed out in No. 3 in his post No. 10 (http://council.smallwarsjournal.com/showpost.php?p=84927&postcount=10).

The more interesting differences result from the national law, especially the Constitution. In that respect jmm99 was quite clever to first show the constitutional level.
I think one of the major differences will be the civil rights and especially their exact coverage and the possibility of a restriction.

It is clearer if I show what I mean with the german basic law. It will be a bit longer, but I think also more clearly understandable. The basic law bestows basic rights, most of them are found within the Art. 1 - 19.

The Question, if the state act violates a basic right is answered by the following Schema: Scope of Protection (Schutzbereich) - Restriction (Beschränkung) - Justification (Rechtfertigung). It is probably easier if I show it with an example. I leave aside various details, because I want to focus on the basic differences between German and US (and French?) civil rights.
Take Art. 12


All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.

Scope of Protection: Here we would have to define, what occupation is. To quote a well know Commentary: "Occupation is every activity, which contributes in high-minded or in material respect for the creation and preservation of a livelihood."
So working as a Lawyer clearly fits under this. Working as a Mafia Hitman? If he earns money with it: Yes. Working as a Prostitute? Yes.

Restriction: Any state burden on a behaviour, which lies within the Scope of Protection of that Basic Right. So if a law prohibits the Hitman from killing for money, this is a Restriction of its basic right. The same for a prostitute. The law, that states that only legally trained people, can become lawyers is also a Restriction of the basic right.

Justification: As you see sentence 2 allows a regulation. Limitless Regulations? No.
First the regulation has to conform to Art. 19 I, II


(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears.
(2) In no case may the essence of a basic right be affected.

The most important is not found in the text of the basic law but has been deduced from the rule of law: the Proportionality. This contains 3 important steps: The means must further the purpose. There are no means, which are as effective but milder. And that means and purpose mustn't be out of proportion.
A law that forbids the hitman to kill for money? Surly proportional, the purpose is to save lives (guaranteed by Art. 2 II of the basic law).
A law that only allows legally trained people to become lawyers? As the purpose is to ensure the professionally of advocacy and to ensure the working ability of the judiciary, yes (although maybe not as clear as with the himan).

So there is a major difference between German civil rights and US civil rights. The US rights can't be restricted, so you always have to interpret the Scope of Protection very carefully. This also means, it is an all-or-nothing protection. Either you fall under (e.g.) the Sixth Amendment or not. As the German civil rights can be restricted, the Scope of Protection is generally interpreted very far. Practically you'll always find a civil right which protects this person or behaviour. It is a more general, but also partly lower protection, because everything can be restricted.

So if one concludes that the Bundeswehr is bound by basic rights in the GWOT, one would have to enact laws which allow it to act or analyze if the existing laws are a adequate regulation of the basic rights. More problematic would be a strict binding of the Bundeswehr to the Proportionality.

Now I'm unclear how the situation in France is. Can the rights which are granted by the Declaration be restricted? I think this has major implications on how a nation, which follows the rule of law, can and will fight.

[M-A Lagrange]

Now I'm unclear how the situation in France is. Can the rights which are granted by the Declaration be restricted? I think this has major implications on how a nation, which follows the rule of law, can and will fight.

The universal declaration of Man Right is very general in fact. Men are equal in Rights. (But they can loose administrative rights as vote or paternity...)
But the rights included in it are: right to live, right to have a free opinion, right to express it...
Then we have laws that may condamn you for a miss use of those rights as the law on negation of Shoa. You have the right to say Shoa did not exist. (If you want...:mad:) But then the society will suite you for attempt of the law against negationism.
Basically, from my understanding, you can do what you what but you have to assume consequences. Also, with rights, come obligations. Military service was one of them.
Reverse, voting is a right that you are not obliged to use, contrary as in Swiss for example (and in some part of Germany if I well remember).

On the conduct of war, it is the same. There are not much things that you cannot do. The only thing is: if you give or execute an unlawfull order then you will be procecuted.
In that understanding, CG or Rome status does not harm your capacity to conduct war, it just says: if you do so then you will have that problem.
Then it is the military, under his conscience who will judge if he can do or not an action. Knowing that the rule of proportionality will always apply and the individual responsability also for each level of the fault.
If to stop 5 Taleb who stole a gazoline truck you kill 90 civilians with an airstrick without following the chain of evaluation...;) Then you prety sure to go to court.
The other thing is that France made the experience of unlawfull war conduct in Algeria. And clearly, this did chance, in best I believe, our way to conduct war.

But in fact this does not count too much as the way to conduct war among the people and with auxillaries is something which is long history in the french military tradition.

[jmm99]

My bad for using the word "independent", instead of "separate"; which caused this valid comment:


from Igel
What do you mean with "independent German military law and Laws of War"? There exist various laws which regulate the military and give guidelines how a war has to be fought. Do you mean something different from that?

What I was looking for is whether there is a separate body of German military law, including the laws of wars, which has been adopted as positive law. For example, the US started with the Lieber Code of 1863 (Gen Order 100 (http://www.civilwarhome.com/liebercode.htm) and Wiki (http://en.wikipedia.org/wiki/Francis_Lieber)), written by a German immigrant to the US who was then the leading international and military law expert in our country. He based his code (most of which still holds up) on what he perceived as the best legal rules - in a real sense, he codified the "common laws of war" that he thought best protected combatants and non-combatants.

US military law has since incorporated the Hague and 1949 Geneva Conventions (as well as other conventions), has adopted as positiive law the UCMJ (Uniform Code of Military Justice) and a host of regulations and rules. Various other positive law affect US military law: e.g., War Crimes Act, Anti-Torture Act, Detainee Treatment Act and Military Commissions Act.

While these generally are subject to the US Bill of Rights (first 10 amendments to the Constitution), there are some exceptions - not because the statutes override the Bill of Rights, but because the Bill of Rights have some limitations (and some expansions) beyond their express language. That is because of 200+ years of judicial interpretation for better or for worse.

Now, in considering your post (http://council.smallwarsjournal.com/showpost.php?p=85058&postcount=15) about the Basic Law and the articles quoted, the Basic Law does seem to require procedures which are not practical on the battlefield, as you point out. So, how (if at all) do German forces get around this ?

[M-A Lagrange]

Igel,

My comment on the previous post is not an attack against Germany and for those it may have hurt, I am very sorry.
I took the example of the law on negationism as both Germany and France have similar law (in the spirit) on that issue. As for racism. Liberty of speech is limited by the fact that what you say is either a false historical truth or an appeal to comitte a crime or the denial of the equality of every human being (art1 Universal Man Rights in the spirit).
In US, if I have well understood the constitution article on free speech, it is not the case. (may be for an appeal to blood crimes?).
There, we have two different view of the legislator on the interpretation of the liberty of speech. In the US, someone correct me if I am wrong, the law cannot legiferate such things as the constitution guaranty to everybody the right to express his self.
In Europe, we may give a larger power to the law to interfere with some fundemental rights. The French Universal Declaration of Man Right give the freedom of opinion, conscience and religion (you have the right to believe what you want and to think want you want) and press. But it also gives restriction to your liberty: to no harm another human being.
Your liberty stops were the liberty of another starts. You do not have laws that restricts your rights. Those rights are Natural in a philosophical approach, close to Locke state of Nature. This gives room to an argue on is the Man Right declaration a copy and translation of Habeas Corpus or not.

Concerning the legal capacity of the army to plan its activities: you have the military laws, like in US. Those laws apply to the soldiers when on duty but does not replace the civil law.
But layers are not sitting in command room. (heureusement...).
French and US military laws are on the same subjects: detention, torture, military justice...

JMM, I Have a question:
I will take the case of a robbery in Ivory Coast. Some Legionaires broke into the Central Bank and stole several millions. This forced several governments to change their currency in use (the Franc CFA). After that, to stop the rogue soldiers, all the notes in Franc CFA were reprinted.
In French Law, the robbers would be (and have been) prosecuted by a civil tribunal under civil law. They would (have) definitively faced administrative sanctions from the army, but the prison that would follow would be (has been) given by a civilian tribunal.

What about US? (Knowing the guys were on duty in a war zone).

[M-A Lagrange]

Igel, to respond to your question on restriction of rights. It does apply to military forces in France as follow. For the rest, just as JMM said about the military codes of conduct of operations.

Concerning the status of the French military forces :
Art L.1411-1 of the code de la defence:
The military quality:
- Spirit of sacrifice (even up to death)
- Discipline
- Loyalty
- Neutrality on the political maters and mission given (you keep your though for later)
Rights and obligations of military

Rights and liberty: art L.4121-1 the military benefit from all rights and liberty of the citizen (citoyen). But the use of some of them are either forbidden, either restricted in the conditions fixed in the present law.

Individual liberty:
The main restrictions on liberties are the freedom of speech and the freedom of movement.

Political liberty:
If a soldier is a citizen of full rights, he cannot have political activities
Since 1945 he can vote (before not) but he cannot be part of a party. If a soldier is elected, he looses his salary. Also, as he cannot be part of a party, a soldier (active one) cannot pretend to national elections.

Collective liberties:
The freedom of association is recognized to the military. But he cannot be part of a union. And civil or professional military union is prohibited. Soldiers cannot strike.

Protections and guaranties:

Right to vote.
Moral guaranty: as servant of the state in the quality of military, a soldier has the benefice of the consideration of the nation (art L.4111-1).
Material guaranties: soldier have the right of a pension and medical treatment and social services.
Legal protection: Financial cover from the state covers for faults in service, penal prosecution under art121-3 of penal code only if characterized fault…
French soldiers are protected in case of use of force by the art L.1324-12 that creates 2 juridical acts allowing the exoneration of responsibility in case of use of force under certain conditions.

As you see, there is not habrogation of the rights of the individual, only restrictions on the use of them.

[M-A Lagrange]

Ratifications / Accessions
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906.
[Introduction][Full Text][Articles]

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.
[Introduction][Full Text][Articles]

Procès-verbal relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 22 April 1930. London, 6 November 1936.
[Introduction][Full Text][Articles]

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948.
[Introduction][Full Text][Articles]

Geneva Conventions of 12 August 1949.
[Introduction][Full Text][Articles][Commentaries]

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968.
[Introduction][Full Text][Articles]

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. Opened for Signature at London, Moscow and Washington. 10 April 1972.
[Introduction][Full Text][Articles]

Convention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976.
[Introduction][Full Text][Articles]

Convention on the Rights of the Child, 20 November 1989.
[Introduction][Full Text][Articles]

Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, Paris 13 January 1993
[Introduction][Full Text][Articles]

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997
[Introduction][Full Text][Articles]

Rome Statute of the International Criminal Court, 17 July 1998
[Introduction][Full Text][Articles]

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000
[Introduction][Full Text][Articles]


Signatures
Final Act of the Diplomatic Conference of Geneva, 12 August 1949.
[Introduction][Full Text][Articles]

Final Act of the Diplomatic Conference of Geneva of 1974-1977.
[Introduction][Full Text][Articles]

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980.
[Introduction][Full Text][Articles]

Convention on Cluster Munitions, 30 May 2008
[Introduction][Full Text][Articles]

[jmm99]

There are different approaches to drafting a constitution. I'm not talking about whether the document is simple (setting out general principles), or complex (setting out specific, detailed mandates), or a combination of those approaches. In that respect, the US Constitution tends toward general principles, with specific, detailed mandates to be implemented by statutes, regulations and rules.

More important to basic understanding is the constitutional source of the political power expressed in the constitution. So, let us look at the following:

Constitution of the United States of America (http://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Artic le_II)


Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Basic Law for the Federal Republic of Germany (https://www.btg-bestellservice.de/pdf/80201000.pdf)


Preamble

Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law.

France - Constitution of October 4, 1958 (http://www.assemblee-nationale.fr/english/8ab.asp)


PREAMBLE

The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004.
....
Title I
ON SOVEREIGNTY

Article 2.
.....
The principle of the Republic shall be: government of the people, by the people and for the people.

Article 3.

National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum.

So, all three, US, Germany and France, are built on people power. The source of political power are the people of the nation, who are served by the government they establish. This concept does not seem revolutionary today, but it was in the late 1700s which still had vestiges of the divine right of kings, etc. The concept of people power (in the sense understood in the quotes above) is not the concept underlying Sharia law in its strict forms, which present a theonomy (divine law). It is well to keep this in mind.

We look at another document, which has a constitutional form (though not called that):

Charter of the United Nations (http://www.un.org/en/documents/charter/preamble.shtml)


PREAMBLE

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

•to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
•to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
•to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
•to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS

•to practice tolerance and live together in peace with one another as good neighbours, and
•to unite our strength to maintain international peace and security, and
•to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
•to employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

Again, we see a reference to "people power" in a more complex environment; but the last paragraph teaches us some additional terms that must be understood in the context of international law. Those terms are:

1. Nations

2. Governments

3. Representatives of Governments, "who have exhibited their full powers found to be in good and due form."

A very important point to remember is that nations and governments are not the same thing; and that both nations and governments have, at sometime in their existence, to be recognized before they have capabilities in the international (between nations) community.

Nation

For a look at a nation's constitutional history (and different kinds of constitutions), see this post on Afghanistan (http://council.smallwarsjournal.com/showpost.php?p=57908&postcount=17). We can agree that at all times pertinent hereto Afghanistan was a nation, recognized as such by the international community. Its constitutions differ from the three non-Islamic constitutions quoted above.

Governments

For Astan's governments (1978 to date), see this post (http://council.smallwarsjournal.com/showpost.php?p=57910&postcount=18) which includes some material on the Taliban and its view of Sharia law.

An important point about a nation, as opposed to a government, is that once a nation is recognized as a nation by the international community, that nation continues to exist as a nation (despite changes in governments or the lack of any government at all), unless it is annexed by another nation, partitions itself by agreement or by war, or cedes its international capabilities to another nation.

From the time the US first had diplomatic relations with Afghanistan up to the present, the US and the international community recognized Astan as a nation. That is simply a matter of normative international law and has nothing to do with any peculiarities of US domestic law or its Constitution.

Recognition of Governments

Recognition of a government and withdrawal of recognition from a government is a political decision based on the domestic law of the nation that recognizes or withdraws recognition. There are different standards and different methods for doing that in the international community.

The history of US recognition of various Astan governments can be found at the following posts:

US & Afghan Positions 1919-1992 - part 1 (http://council.smallwarsjournal.com/showpost.php?p=58337&postcount=22)

US & Afghan Positions 1919-1992 - part 2 (http://council.smallwarsjournal.com/showpost.php?p=58338&postcount=23)

US & Afghan Positions 1992-1996 (http://council.smallwarsjournal.com/showpost.php?p=58339&postcount=24)

Note US recognition of the Rabbani government continued into 1997.

The US withdrawal of recognition of the Rabbani government, and the US refusal to recognize the Taliban government, is a longer story:

US & Afghan Positions 1996-2001 - part 1 (http://council.smallwarsjournal.com/showpost.php?p=58340&postcount=25)

US & Afghan Positions 1996-2001 - part 2 (http://council.smallwarsjournal.com/showpost.php?p=58341&postcount=26)

US & Afghan Positions 1996-2001 - part 3 (http://council.smallwarsjournal.com/showpost.php?p=58342&postcount=27)

The US position was triggered by the physical turf war at the Astan embassy in DC, but other factors were also involved.

The US position on recognition of a government is established by decision of the executive branch (the President), and is binding on all three branches of the US government - which includes US military forces.

US Judicial Standard - Executive Branch Recognition (http://council.smallwarsjournal.com/showpost.php?p=58335&postcount=20)

Why are US military forces the military forces of the US as a nation ? The reason is that that they are subject to the command and control of the recognized government of the US. If there were no government in the US, its armed forces (even if they still existed) would not be a national armed force.

We will deal later with the non-recognized status of the Taliban as Astan's government, and thus why its armed forces could not be considered the armed forces of a High Contracting Party to the GCs.

[jmm99]

As to this:


from M-A
JMM, I Have a question:
I will take the case of a robbery in Ivory Coast. Some Legionaires broke into the Central Bank and stole several millions. This forced several governments to change their currency in use (the Franc CFA). After that, to stop the rogue soldiers, all the notes in Franc CFA were reprinted.

In French Law, the robbers would be (and have been) prosecuted by a civil tribunal under civil law. They would (have) definitively faced administrative sanctions from the army, but the prison that would follow would be (has been) given by a civilian tribunal.

What about US? (Knowing the guys were on duty in a war zone).

Answer: It depends - a good lawyerly answer, worthy of Ken.

I am positing active duty, regular US forces, who are in the course of their assigned military mission when they rob the bank and who are taken into US custody. We'll call the "host nation" Chaos Country for David.

We have three possible judicial venues to consider: UCMJ court-martial; Chaos Country court; and US District Court.

1. Does a state of armed conflict exist between Chaos Country and the US ? If so, the Chaos Country court is out. A US District Court would lack jurisdiction, unless other facts are involved (War Crimes Act, Anti-Torture Act - and those could be tried as incorporated crimes under the UCMJ). The best answer seems the UCMJ court martial process for each offender.

2. Has Chaos Country consented to US entry ? If so, there will be something akin to a SOFA (Status of Forces Agreement), either formal or informal. That will supply the order in which each country may charge crimes by US forces. A good rule of thunb is that the US will preserve its primacy to prosecute its own soldiers. Immunity for certain crimes may or may not exist.

Despite the post heading, SOFA - Germany - Gays (http://council.smallwarsjournal.com/showpost.php?p=51817&postcount=22), this post has a serious discussion of NATO-type SOFAs in general, with a number of references. I'd say UCMJ court-martial would be primary under the usual SOFA, unless the US decided to forego prosecution and handoff to a Chaos Country court.

BTW: under the usual SOFA, jurisdictional priority heavily depends on clauses like this (from the German-US SOFA case in post linked above):


Under these provisions, the United States has the primary right to exercise jurisdiction over a servicemember who commits an offense against the United States, another servicemember, or a dependent, or for offenses arising out of official duty. Art. VII, ¶ 3(a). In all other cases, the receiving state, Germany in this case, retains the primary right to try an individual. Art. VII, ¶ 3(b).

A act committed during official duty is a key fact.

I could complicate this further by positing the troops (let's make them sailors) committing a robbery at sea (piracy), with concurrent UCMJ and US District court jurisdiction. Or, a bank robbery in the US, with concurrent UCMJ, Federal court and State court jurisdiction.

[jmm99]

The US position as to Astan's governments and recognition of them from the inception of the Rabbani government can be summed as follows:

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".

However, what if one argues that I don't care what your US rules are for diplomatic recognition. That would be bad international law (since recognition is a domestic political question). That argument would boil down to: the US must comply with the international norm, regardless of its own constitution and laws.

For purposes of discussion, what was the international norm as found by the UK Home Office Assessments. You will find those at:

UK Home Office Position - part 1 (http://council.smallwarsjournal.com/showpost.php?p=58346&postcount=31)

UK Home Office Position - part 2 (http://council.smallwarsjournal.com/showpost.php?p=58347&postcount=32)

Based on those sources, the international community lined up as follows.

The Taliban was recognized by Pakistan, Saudi Arabia and the United Arab Emirates as the government of Afghanistan in May 1997. However, the Rabbani government kept the UN seat (in a sense by default because the UN declined to rule on which government was entitled to the seat - a position similar to that of the US).

By September 27, 2001, Burhanuddin Rabbani led politically the anti-Taliban Northern Alliance in Afghanistan. Saudi Arabia and the United Arab Emirates decided to withdraw their diplomatic recognition. Pakistan alone recognised the Taliban government. President Rabbani’s government was strongly backed by Iran, Russia, Afghanistan’s Central Asian neighbours and India.

Thus, if the norm of the international community is taken into account(leaving out the no goverment position of the US), the Rabbani government was the recognized government of Astan. The Taliban had no claim to that legal status.

In truth, neither the Taliban nor the Northern Alliance were legitimate in humanitarian terms. Their human rights violations are recounted here:

Links to Astan HR Reports (http://council.smallwarsjournal.com/showpost.php?p=62160&postcount=5)

UN Report cont. - Taliban massacres (http://council.smallwarsjournal.com/showpost.php?p=62161&postcount=6)

Since the Taliban was not the recognized government of Astan according to both the US position and the international norm, the Taliban's armed forces could not be the armed forces of Astan (a High Contracting Party to the GCs).

[Igel]

My comment on the previous post is not an attack against Germany and for those it may have hurt, I am very sorry.

No need to feel sorry at all! I never interpreted that as an attack against Germany and I don't think anyone could come up with such a interpretation. I think that was a good example of differences between US and European Views on the Freedom of Speech (the Denial of the Shoa is also punishable in Germany).

Thanks for the answer about the restirction of rights of military personel. Generally not much different from Germany, although there are variations. E.g. Soldiers can be member of a union.

[M-A Lagrange]

As Mike posted, Sharia does not have the same legacy roots as the French, German and US Law.
Here is a short description of Sharia:
Sharia, the path is a religious document applicable to Muslim as it means “the path to respect the law of God/Allah”. West does name under Sharia the Islamic Law .
In a wide understanding, Sharia also designates the Islamic Faith with 3 dimensions and is called al-sharia’s al-tsalasha (the 3 Sharia): it includes the concept of submission to Allah (Islam), the faith in Allah (Iman) and to do what is beautiful in the eyes of Allah (Ishan).

Sharia regulates both private and public life of a Muslim and the social interactions.

Sources:
Shariia is quoted in Koran: S5v48; S42v13; S45v18.
Sharia is not in the Koran but has been built from the Koran. The various sources are the hadith, the sunna which are the 2 primary sources. Then comes additional sources Usul al-figh based on consensus ijma and by analogical logic the giyas.
All the community of the Muslim, the Oumma recognize the hadith and the sunna as source of Sharia. The Shia do not recognize ilma and giyas as sources of Sharia. And various schools of Islam, madhab, have various interpretations of giyas.
To this are added several other sources:
Personal opinion ray’
Revelations and context: istihsan
The practice: istislah
The personal reflection on Islam: ijtihad. This to be valid must come from mfti (layers) or scholars mujtahid.
The inspiration on past decision (kind of jurice prudence); taglid in opposition to the ijtihad (general interest)
The coutume: ma’rouf or adah. Which includes pre Islamic coutume.

Structure of Sharia

Sharia has two parts

Al ‘Ibadat which is on cult and religion
Al Mu’amalat which regulates the human interactions and regulate:
- financial transactions
- brides
- heritage
- food and beverage
- war and peace
- Penal infractions
- The regulation of judiciary affaires
Human actions are put under 5 categories which are 5 moral quality: al akham and al-khamsa.
What is prescribed: frad or obligations (wajib, muhattam) or required: lazim
What is recommended: manhood or preferable (mustahabb), merit (fadila) or whished (marghub fih) (here my english founds its limites to translate the word souhaitable.)
What is indifferent: mubah
What is blameable: makruh
What is forbidden: haram
Sharia is recognized in Islamic Law with various degrees of legacy.
For example: In Egypt it is a source of the Law but not the Law.
In the case of Afghanistan and the Mullah Omar rules and regulation, there is several questions about the degree of integration of Sharia and what is called Sharia in the text.
As said previously, the quote (which needs to be identify) at the beginning mention the law of God and the framework of the established rules and regulations.

From my personal point of view, this could be understand as:
The law of God = the al-sharia’s al-tsalasha (the 3 Sharia)
The framework of the established rules and regulations = Sharia as a civil law.
Or
The law of God = Al ‘Ibadat
The framework of the established rules and regulations = Al Mu’amalat
I believe they go for the second opinion but as said previously, there are several legal frame referal in the text.

Mike,concerning the robbers, it is even as much complexe as the navy guys doing piratry as it was foreign legionaires in peace mission (still have to see if it was under UN or under french citizen protection unilateral decision...). But I have the idea.

[Igel]

Now, in considering your post about the Basic Law and the articles quoted, the Basic Law does seem to require procedures which are not practical on the battlefield, as you point out. So, how (if at all) do German forces get around this ?

Frankly, I don't know. Under the german system you need a formal law (meaning a law enacted by the Bundestag) to restrict a basic right. If there is none, the state cannot restrict the right. I have no knowledge of new laws, which were enacted for the current Operations. So either it is viewed that the Bundeswehr is not bound by Art. 1 III Basic Law in Foreign Countries or the existing laws are viewed as adequate. I have to research that more. But right now I don't view any of the alternatives as satisfactory.

About the seperate military law:

The Geneva Treaties (including the Protocols) and the Hague Conventions have been transferred into German federal law. In fact they are a federal law (maybe "Bill" or "Act" would the accurate term in USA?). That means they have the same position and effect as all other federal laws. Even if Germany would resign from the Genevea Treaties tomorrow, the federal law which has transformed the Geneva Treaty into German law would still be in effect.

This is the main body of the German Rules of War. As the Federal Republic was created around the same time the Geneva Treaties were drafted, there was no need for the FederalRepublic for an separate Law of LOAC. Now one could create a separate Law, where all different rules are collected, comparable to UCMJ. That would probably be easier to handle and clearer, than all the separate laws. However I see no need for differences to the existing legal situation.

Maybe it's important to note that several regulations of the Humanitarian International Law are protected by the Penal Code.

[Igel]

Now this is funny. About 1 1/2 years ago I took a course about international law. The LOAC were part of it. Then I also bought a collection of law texts titled "International Law". Today I wanted to read the Geneva Treaties from 1949 and - they are not included! The Hague Convention is and also the Protocols I and II. I was quite puzzled because I always thought we worked with the treaties of 1949 in the course. When I read the course script again it turned out we didn't. We worked with the Hague Convention and the Protocols.

This shows two things: For one my bad memory and the differences between the importance of the treaties in different countries. I made a grave mistake, because I always thought that my knowledge about the treatment of civilians and POW derived from the Geneva Treaties of 1949, were in fact it derived from Protocols.
Luckily I haven't posted much about International Law up to now. That means I can read a bit more about the Treaty of 1949 before embarassing myself.

-------

About the Sharia in the Afghan Constitution:

I have a very limited knowledge about the Sharia. I've only read a book by Mathias Rohe, a German scholar. He made the point, that one has to separate the rules of the Sharia. Most are only religious rules, who are enforced by the society at most. In his view most rules are appeals to the individual believer. If he doesn't follow them, this has consequences in the afterlife. But they are not meant to be enforced by a state.
Rules which should be enforced by a state are in his view only a minority of the sharia. And they were mostly rules about marriage.

Now I don't know if this distinction is really all that accepted within the Islamic World. Also Article 3 of the Afghan Constitution (http://www.afghan-web.com/politics/current_constitution.html) states :

In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.
"Beliefs" is IMO far wider. Beliefs are exactly what Rohe counted under his appeals.

[jmm99]

From what I know of Sharia, M-A covered it quite well; and I learned some new terms. The lesson learned from that is that I would be on dangerous ground in attempting a professional comparison of the Taliban rules with the various schools of Sharia Law.

My own background on Islam in general is based on reading such as A.J Arberry, W. Montgomery Watt, Bernard Lewis, John Esposito and S.F. Mahmud - all Western, except the last, who is a Pakistani. I've read them more from the standpoint of understanding the various political threads in Islam. Of couse, since Islamic government is very much influenced by its Koranic etc. theology and Sharia Law, I've absorbed some general concepts.

I've also read the radicals - e.g., Maududi, Qutb, UBL, Zawahiri, etc. Their message is a much more complete merger of religion with law and governance. Their endstate is a theonomy, a community ruling itself by divine law. A theonomy bubbles up from the masses of believers (in their perfect world, everyone would have the same beliefs); as opposed to a theocracy which involves more top down imposition of beliefs.

Currently, I'm reading (on and off) Richard A. Gabriel, Muhammad: Islam's First Great General (http://www.amazon.com/Muhammad-Islams-General-Campaigns-Commanders/dp/0806138602) (2007). That is not a book on Islamic military law; but since the many battles of that era are recounted in the Koran and traditions, the military law of the Muslims in that era could certainly be derived.

There are many books and articles that deal with the Islamic approach to International Law and the Laws of War. I've read some; but would merely being coughing up their words by quoting them. In addition, too many writings in this area have an agenda: some painting Sharia as the worst of all things in the world; and others painting a picture of what they hope Sharia is or could become as an ideal.

My bottom line is that we could use a SME (Subject Matter Expert) in this thread to speak to the inclusion of military law in the Sharia. I don't know one. IIRC West Point has (had) a course in its law department including Sharia Law; but its website was not co-operative tonite.

----------------------------
This is interesting:


from Igel
Now this is funny. About 1 1/2 years ago I took a course about international law. The LOAC were part of it. Then I also bought a collection of law texts titled "International Law". Today I wanted to read the Geneva Treaties from 1949 and - they are not included! The Hague Convention is and also the Protocols I and II. I was quite puzzled because I always thought we worked with the treaties of 1949 in the course. When I read the course script again it turned out we didn't. We worked with the Hague Convention and the Protocols.

AP I and II are definitely different from the Hague and 1949 GCs. The major US objections (more to I than II) are (1) giving irregular fighters a prize for hiding among civilians; and (2) allowing the transitory combatant (combatant if AK in hand; non-combatant when he temporarily puts it down). Those provisions are more likely to enhance civilian casualties than prevent them.

Some AP I and II provisions have been enacted by statute (but in various statutes). Since the US is unlikely to ratify AP I and II in whole, it would be nice if one statute containing all the accepted provisions were enacted. Some AP provisions have been adopted as policies by DoS (State) and DoD (Defense), which are a grey area. Similarly, it seems to me that some AP provisions are being inserted into rules of engagement (ROE) and rules to use force (RUF).

A brief explanation of "bill, resolution, statute, act and law" is in Act of Congress (http://en.wikipedia.org/wiki/Act_of_Congress) (Wiki).

Best to all

Mike

PS - Igel:


from your link
The first Staatsexamen examination is at a level equivalent to a master's degree, while the second Staatsexamen is roughly comparable to passing the bar exam or finishing ones' residency.

Now, where a German lawyer uses the title Dr. - as in Dr. Michael [rest of name redacted], what does that mean in terms of additional studies or exams (if any) ?

[M-A Lagrange]

Igel,

The Geneva Treaties (including the Protocols) and the Hague Conventions have been transferred into German federal law. In fact they are a federal law (maybe "Bill" or "Act" would the accurate term in USA?). That means they have the same position and effect as all other federal laws. Even if Germany would resign from the Genevea Treaties tomorrow, the federal law which has transformed the Geneva Treaty into German law would still be in effect.
What was done in Germany is that to make sure the past never raised again, the allies at the end of the war included GC into the Federal Law. It is what ICRC is trying to do in several countries as Suth Sudan.
The argument is exactly what you pointed out: even if you denounce GC then you are still bound to apply it as it is a national law.

Mike,

AP I and II are definitely different from the Hague and 1949 GCs. The major US objections (more to I than II) are (1) giving irregular fighters a prize for hiding among civilians; and (2) allowing the transitory combatant (combatant if AK in hand; non-combatant when he temporarily puts it down). Those provisions are more likely to enhance civilian casualties than prevent them.
We have to look at in which political context those protocoles have been negociated. It was just after Algeria War and Viet Nam and most of the liberation wars from colonised countries. Also the movement of the non aligned was quite powerful at that time.
The aim was clearly to protect freedom fighters and it was clearly a political position coming from the "third world" countries.
The aim is also to recognise the participation of civilians and the effects of war on civilians. Protocol IV is even more civilian centred.

Also, as you pointed, I believe that we should go for a very basic (but not necessary simple) interpretation of Sharia as Law with Taliban. They are from salafist inspiration and then will go for the most radical to the very much stricto sensus interpretation. But still, Taleb government had laws. As it is the reference of their legitimacy (more or less) we could start from there.

[Igel]

Now, where a German lawyer uses the title Dr. - as in Dr. Michael [rest of name redacted], what does that mean in terms of additional studies or exams (if any) ?

Dr. means Doktor. To earn a Doktor you have to create original scientific research. You can earn the Doktor after your 1st Staatsexamen, although it is usually done after the completion of the education, the 2nd Staatsexamen. In Law it takes usually takes around one till two years to conclude the Dissertation. Dissertation is the name for the research text. It has to be published, usually as a book. So if you want to know what this particular lawyer has researched, you can search german book databases (Amazon is a good starting point for current dissertations). As a general rule the text should be around 200 - 300 pages, although significantly shorter and longer texts are possible.
The research can be done in any legal field and is usually about a very narrow issue, sometimes very practical, sometimes more theoretical. E.G. "The possibilities of the use of Intelligence Services against Organized Crime" vs. "The development of the municipal legislation of Bavarian areas to the east of the Rhine from 1802 till 1818".

Most jurists don't make a Doktor, since it takes quite some time and energy. The exact title for jurists is "Dr. jur." to identify the field in which the Doktor was earned. Doktor can be earned in all academic areas, e.g. a Doktor in Medicine would be Dr. med. The length of the Dissertation also varies strongly between different areas. In Medicine it is very short, whereas e.g. in Economics or Chemistry it takes at least 3 years.

Since the researched issue can be very different, you can't draw any specific conclusions to additional knowledge of the lawyer. However the Doktor is viewed as the sign of respectability and academic success, especially by the general public.

Jurists who want to work in large, international operating law firms sometimes prefer the "LL.M.". Although in Germany this title is only know within legal circles.

Edit: Way better than Amazon is this (http://www.ubka.uni-karlsruhe.de/kvk.html). Just check the box next to german flag. It searchs through virtually all german university liberaries.

[M-A Lagrange]

As Mike pointed out, the presentation of Sharia and Islam is basically very much politically oriented.
In the case of the Taliban it is even more difficult as they probably use several “official” interpretation and several “local” interpretations.
The principle of fatwa gives an opportunity to many to comment and establish a rule or coutume that would apply locally. From village to village the interpretation of the same verse can change. Which does not help to understand and come with a critic of the Taleb rules and regulations.

Anyways, as a starting point, I propose here generally accepted references to Koran and to hadith on war by Islam. The idear is not to create a Law School of Islam but to come with the basic referral, as much as possible without interpretation. This to have a very raw base to start with.

Rules:
Historically, the Islamic ethical way to conduct war has been established by Abu Bakr:
Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

Those rules are recognised as the very base of the Islamic ethic of war conduct.

Most of them are coming to the following Sourates and verses.
I purposely kept the first one despite its potential political interpretation to stay as neutral as possible. Avoiding it would also have been taking position.

"...We decreed upon the Children of Israel that whoever kills a soul - unless for a soul or for corruption [done] in the land - it is as if he had slain mankind entirely. And, whoever saves one, it is as if he had saved mankind entirely." [Qur'an, 5:32]

"...And do not kill the soul which Allah has forbidden except by right..." [Qur'an, 6:151]

"And do not kill the soul which Allah has forbidden except by right. And whoever is killed unjustly, We have given his heir authority but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law]. " [Qur'an, 17:33].

"And [the believers are] those who do not invoke any deity with Allah, nor kill the soul which Allah has forbidden except by right, nor commit zina." [Qur'an, 25:68]

"And fight, in the path of Allah, those who fight you..." [Qur'an, 2:190]

"Among mankind is he whose speech impresses you in worldly life, and he calls Allah to witness as to what is in his heart, yet he is the fiercest of opponents. And, when he goes away, he strives throughout the land to cause corruption therein, and to destroy crops and lives. And Allah does not love corruption." [Qur'an, 2:204-5]

I would also recommend having a look to the following link: http://books.google.com/books?vid=ISBN1428910395&id=5F-JEmNr9yUC&printsec=frontcover#v=onepage&q=&f=false
Even if it does not apply to the actual exercise.

I also purposely did not integrated sunnah references as I did not have the quotes to give.

[jmm99]

One must consider the Koran (Qur'an) and Traditions (Sunnah & aHadith) because they are the bases for all Islamic laws of war. This area of discourse, however, is ripe for both political and religious "flaming" (as the two are so intertwined in traditional Islam).

All I can do about that is to request that everyone approach these topics with a scholarly and reasoned attitude. If you wish to go beyond that, start your own thread and see where it goes.

That having been said, this seems a logical course of action:


from M-A
In the case of the Taliban it is even more difficult as they probably use several “official” interpretation and several “local” interpretations.

The principle of fatwa gives an opportunity to many to comment and establish a rule or coutume that would apply locally. From village to village the interpretation of the same verse can change. Which does not help to understand and come with a critic of the Taleb rules and regulations.

Anyways, as a starting point, I propose here generally accepted references to Koran and to hadith on war by Islam. The idear is not to create a Law School of Islam but to come with the basic referral, as much as possible without interpretation. This to have a very raw base to start with.

Here is where I am coming from.

The On-line Sources I Use

The Center for Muslim-Jewish Engagement - Religious Texts (http://www.usc.edu/schools/college/crcc/engagement/resources/texts/) has the following on-line materials:


Islamic Text

The hadith used in the compendium were compiled by the Muslim Students Association at the University of Southern California. The Compendium of Muslim Texts (now available at www.msawest.net/islam) has been one of the most frequently cited sources of hadith and is the most complete compilation of hadith available to the public.

Methodologies for the study of hadith have been developed over centuries by Islamic scholars and jurists and are commonly referred to as the science of hadith study. Verification of hadith as reliable, and the use of hadith to verify or disavow Islamic practice, is left to Ulama, or Islamic scholars, with a deep understanding of Islamic jurisprudence and history. Articles on the science of hadith study, the history of the creation of the Compendium of Muslim texts, and other topics including approaches to the interpretation of difficult texts, viewing scripture as historical as well as religious documents, and other topics, are forthcoming.

Muslim Texts

The Qur'an
The Hadith

Other Resources

The Message of the Quran by Muhammad Asad
The Message of the Quran by Muhammed Asad - Appendix I - IV (pdf)
Digital English Translations of the Holy Quran
Sayyid Abul Ala Maududi's The Meaning of the Qur'an

I am not that familiar with Muhammad Asad (http://www.wikimir.com/muhammad-asad), who was a Jewish convert to Islam and collaberated with M. Iqbal in Pakistan's formation. Of the Qur'an translations (see caveat below), there are three, parallel texts on-line. I use M.H. Shakir (orig. pub. by Habib Esmail Benevolent Trust, Karachi, Pakistan; it has fewer corrections (http://www.msawest.net/islam/quran/corrections.html) and those are not of great substance) in hardcopy. I also rely on Maududi's Introductions to each surah, which set the context and timing of each in the complete Revelation.

So, my sources are basically Pakistani in locale, which are at least near to the Taliban geographically. The Hadiths (aHaditha) are, of course, in Arabic original - which would stop me cold, but for the MSAWest translations.

A Caveat as to Translations

From MSAWest (http://www.msawest.net/islam/quran/qmtintro.html):


Warning!

Please keep in mind that ANY translation of the Qur'an will most definitely contain errors (e.g. see our online list of corrections). We have provided three translations here to emphasize this point. In its natural language (Arabic), the Qur'an is the direct Word of Allah (God) to mankind through the prophet Muhammad (peace be upon him). Any translation of the Qur'an no longer retains that 'official' and perfect status, however it can be tremendously helpful to beginning students wanting to learn more about Islam.

We would strongly encourage those who want to learn about Islam to purchase a hardcopy of the Qur'an but with the following conditions:

- get one with commentary (tafseer)

- make sure the tafseer is scholarly (e.g. references to reasons behind a verse, references to hadith and sunnah, etc.)

Unfortunately, the three translations presented here do NOT meet these simple conditions. To the best of our knowledge, an excellent English translation and commentary of the Qur'an is Maududi's recently published work "The Meaning of the Qur'an". This work took more than forty years to complete, and was published beginning in the mid to late 1980's. We have included Maududi's introduction to each chapter of the Qur'an, but the complete commentary is not online (yet!). Maududi's work is superior to the three works presented here, HOWEVER please note that we are not in any way decrying the tremendous efforts of Ali, Pickthal, or Shakir. May Allah reward them all.

I believe that Maududi's complete commentary is now on-line (at least in Urdu and Arabic), but for immediate purposes is not needed.

The Context of the Revelation

It is well to keep in mind that the Revelation took place generally in times of strife - and of tremendous political and religious divisions in Western Arabia. That is not to say that the Koran is a "book of war"; it has much historical and religious materials which do not deal with the then-current dissensions.

The second thing to keep in mind is the Surah sequence is not chronologial. To find the relative chronology between passages (even within a Surah), one must consult Introductions such as Maududi. What is the relevance of that ? There are two main points (both related):

1. Two passages that appear inconsistent on their face can be harmonized based on when they were revealed. Context, context, context. In short, one may apply to one situation; the other, to another situation.

2. Two passages that are inconsistent and cannot be harmonized can be explained, again based on when they were revealed. Context again. Generally, the later revelation will be deemed to supercede the earlier.

While the Koran and Traditions can be "cherry-picked", that is not the path to understanding.

A Suggestion for Readers and Posters

This nugget (http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/quran/007.qmt.html) is as valid today as when it was revealed (Surah 7, Al A'araf, The Heights; revealed at Mecca) - M. Asad added by JMM from here (http://www.wikimir.com/message-of-quran-by-muhammad-asad-007):


007.204 & 007.205

YUSUFALI: (204) When the Qur'an is read, listen to it with attention, and hold your peace: that ye may receive Mercy.
YUSUFALI: (205) And do thou (O reader!) Bring thy Lord to remembrance in thy (very) soul, with humility and in reverence, without loudness in words, in the mornings and evenings; and be not thou of those who are unheedful.

PICKTHAL: (204) And when the Qur'an is recited, give ear to it and pay heed, that ye may obtain mercy.
PICKTHAL: (205) And do thou (O Muhammad) remember thy Lord within thyself humbly and with awe, below thy breath, at morn and evening. And be not thou of the neglectful.

SHAKIR: (204) And when the Quran is recited, then listen to it and remain silent, that mercy may be shown to you.
SHAKIR: (205) And remember your Lord within yourself humbly and fearing and in a voice not loud in the morning and the evening and be not of the heedless ones.

ASAD: (204) Hence, when the Quran is voiced, hearken unto it, and listen in silence, so that you might be graced with [God's] mercy." (205) And bethink thyself of thy Sustainer humbly and with awe, and without raising thy voice, at morn and at evening; and do not allow thyself to be heedless.

Take this to heart before posting.

-------------------------
Brief Disclosure: In Systematic Theology, in study of "Our Book" and "Our Traditions", I'm a center-right Roman Catholic. My intent is to keep that out of this discussion.

Regards to all

Mike

[M-A Lagrange]

Mike,

Ok, may be I was not clear enough. I do agree with you on the fact that we have to stick to Islam Schoolar work as we do not are mullah nor Muslim Schoolars.
I just tried to give the very raw bases of the law of war in Islam. I did not include the Sunnah and Hadith because I could not come with strong references for anyone to look at them with a different eye.
That is why I said this is not to start a new Islamic School. That is not our work and we do not have the legitimacy. I tried to stay neutral and provide the most neutral base. Also, as I said, I tried to come with generaly accepted comon Quran quotes as the reference to Law of War. Good also you remind me that I should have put the book reference so the translation could be identified. Will follow your line of quoting Quran, it is the best one.

Actually, at home, I have a copy of the Quran you are refering to. The story of that Quran is interesting as it was given to me by my colleagues from Islamic Relief when I went to Lebanon during the 2006 war. They gave it to me for Allah to protect me and support my efforts to save the people. It is a book, for that precise reason, very much attached to.
But it also, from an anthopological point of view shows how, in war, we all come back to magic.

To come back to the fatwa. Fatwa are opening the Law as any mullah or recognised Islam teacher can come with a fatwa. A Mullah from a village can make a fatwa that will apply to his village only. You can have fatwa for one person only. It is not laws or jurisprudence. That is why it makes the things difficult. And that is why we have to go by recognised Islamic Law Schools, as you mentioned. The most known are for example the one against Rushdy. But 1st it is a worlwide application fatwa and it has been given by a very well known mullah.
So may be we should establish a "rule" for fatwa if we come with some in the discussion. Like being recognised by a recognised Ilamic Law School, being world wide... I do not know. Lets make a decision here.

[jmm99]

I'm inclined to let the thread take itself where it will go, without establishing what sources are authoritative or not. The only thing I can ask is that the discourse be scholarly and reasoned - and that, if on-line sources are being used, link to the source so that people do not have to guess and Google.

I have to see if Abu Bakr's 10 rules are on-line (Al-Tabari, IIRC) since your quote was not complete (per my Barnard Lewis hardcopy).

More later.

[jmm99]

I found an on-line image of Abu Bakr's 10 Rules of War in Google Books, Gérard Chaliand, The art of war in world history: from antiquity to the nuclear age (http://books.google.com/books?id=GQ1IvMmb5SAC&pg=RA1-PA392&lpg=RA1-PA392&dq=%22al+tabari%22+%22abu+bakr%22+%22rules+of+war% 22&source=bl&ots=h2vccZXWUS&sig=IrY0NzJMhgdIgSbRDtcxvx-tEOQ&hl=en&ei=dU7iSsa0H9HhlAe60-GKBw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CA0Q6AEwAA#v=onepage&q=%22al%20tabari%22%20%22abu%20bakr%22%20%22rules% 20of%20war%22&f=false) (1994, 1072 pp.).

934

Al-Tabari wrote about 300 years after the fact; although he probably relied on a chain of transmission.

Eight of the 10 rules (the first two are in the first sentence) are unexceptionable in terms of the GCs and protection of civilians in general. Two rules (one dealing with hermits or monks - leave them be; the other dealing with shaved heads, tonsured clergy ? - strike them with the sword) are specific. They call for quite different measures.

-----------------------------
From MSAWest, here is An introduction to the Shari`ah and Fiqh (http://www.msawest.net/islam/law/shariahintroduction.html), which seems a good review of the basic concepts.

[carl]

It would be very interesting to know how strict the Taliban leadership is about making their people follow these rules. It does illustrate the things they consider important.

I get the idea in reading various accounts that on our side, there can be some contention as to who has primacy in deciding what is done in local areas, the local forces or some larger command. In rules 37 and 38, the Taliban seems to have decided that the local commander has primacy.

Taliban leadership also seems to think that searching people's houses is a VERY big deal. Rule 53 seems to want to insure that it is done only rarely. Do they really make their people follow this rule or is just there for the sake of form? Also how does this rule compare with our rules for searching houses?

[M-A Lagrange]

Taliban leadership also seems to think that searching people's houses is a VERY big deal. Rule 53 seems to want to insure that it is done only rarely. Do they really make their people follow this rule or is just there for the sake of form? Also how does this rule compare with our rules for searching houses?

A lot of questions in Carl post. I will try to first respond to the one on the houses search: rule 53.

First we have to look at two things: the respect of privacy propriety and the respect of gender separation in Islam. And then we have the questions of honour that comes with the afghan culture and other cultural issues.

Before responding to the legal issue, I will try to give some anthropologic rational behind the rule and why I am starting with women status.

In rigorist Islam gender are separated. In “open” Islam (I do not find any other word and it is a bad one), the gender are differentiated. (Q
The intrusion of a foreigner in a house is always a problem, even a friend, for those practicing a strict Islam. I visited Muslim colleagues in UK, Lebanon, Chad, Sudan, Somalia… If for West African Muslim, the gender separation is not that big deal but can be as in Chad, in Sudan or in Somalia.
I meet highly educated Muslim from Pakistan, Indonesia, and Yemen and Middle east for whom, it was just impossible that you even see a woman presence at home.
It all may come wired when you are in UK and the shadow of a hand pass a plate with tea from behind the door.
This just to say that the issue of possibility of women presence in the house is important for the Taliban but not only. It has religious and legal roots but also “cultural” (I do not like the term) roots.
On the cultural side, if the Taliban were setting a rule saying that searching a house or even entering a house would be permitted at all hours of day and night, they would probably face strong opposition. Most of the people would not even know the base of the practice but it will hurt their habitus.

This finds its roots into Quran by the sura: 4. Women (An-Nisáa). I took the following site to make the quotes: http://www.intratext.com/IXT/ENG0027/_P1V.HTM#SV
It is not as good as the version that JMM advised but it is a quite good translation. And you can find a lot of Quran versions, even back to the first translations. Also you have a word research tool that allows you to look for a quote in Quran in French, English and Arabic. You also have Spanish, German versions of the Quran.

First of all you will find this verse:

31. And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husband's fathers, their sons, their husbands' sons, their brothers or their brothers' sons, or their sisters' sons, or their women, or the slaves whom their right hands possess, or male attendants free of sexual desires, or small children who have no carnal of women; and that they should not strike their feet in order to draw attention to their hidden ornaments. And O ye Believers! turn ye all together towards Allah in repentance, that ye may be successful.

This is the verse used to justify the fact that women have to be unseen. Depending on each culture, this goes from total (Afghanistan, Somalia, Saudi Arabia…) to partial or correct dressing (Sudan) to proper dressing (Algeria…).
So basically, if you look at it with a very strict view, as in wahabism or salafism, as in Afghanistan, the women cannot be seen by other persons than husbands, their fathers, their husband's fathers, their sons, their husbands' sons, their brothers or their brothers' sons, or their sisters' sons, or their women, or the slaves whom their right hands possess. So out of the family ring only the slaves, now days domestic, can see a women. A man free from sexual desires and small children can also see a woman. For the small children, the rule is quite obvious in the sense that they do not have the sexual desires. For other men it is different.

All Muslim are virtuous but… You basically cannot know what is in the mind of someone else. So traditionalist will go for a very strict application by limiting the visual contact to the family ring. Elders are considered as men without sexual desires. So when a man needs to address a woman, they are considered as a guaranty for the woman and the family pride and honour.

Secondly, in Sharia, there is a need of 2 men as witness to guaranty the word of 1 man. So the 2 elders’ requirement is to ensure that in front of a Sharia court there was enough witness.
Al-Baqara - 2.282 .And call to witness , from among your men , two witnesses .

What is interesting here is that the whole verse is about loans and debts.


Al-Baqara - 2.282 . O ye who believe! When ye contract a debt for a fixed term , record it in writing . Let a scribe record it in writing between you in ( terms of ) equity . No scribe should refuse to write as Allah hath taught him , so let him write , and let him who incurreth the debt dictate , and let him observe his duty to Allah his Lord , and diminish naught thereof . But if he who oweth the debt is of low understanding , or weak , or unable himself to dictate , then let the guardian of his interests dictate in ( terms of ) equity . And call to witness , from among your men , two witnesses . And if two men be not ( at hand ) then a man and two women , of such as ye approve as witnesses , so that if the one erreth ( through forgetfulness ) the other will remember . And the witnesses must not refuse when they are summoned . Be not averse to writing down ( the contract ) whether it be small or great , with ( record of ) the term thereof . That is more equitable in the sight of Allah and more sure for testimony , and the best way of avoiding doubt between you ; save only in the case when it is actual merchandise which ye transfer among yourselves from hand to hand . In that case it is no sin for you if ye write it not . And have witnesses when ye sell one to another , and let no harm be done to scribe or witness . If ye do ( harm to them ) lo! it is a sin in you . Observe your duty to Allah . Allah is teaching you . And Allah is Knower of all things .

That is all for the issue of woman presence in the houses. But I think that it already shows how it is complex to comment those simple rules as you have a mix of cultural practices with roots in Islam Quran and Sharia and strict application of Quran, virtually by the letter.

[M-A Lagrange]

To go further than the anthropologic view on gender, which must have a strong importance, I will try to come with some tracks to understand it.
Previously, I used only one source of translation of Quran as it was easier for me to show the gender issue.
But as we are looking at that problematic from a more in depth point and it has deeper religious potential issues involved, I will use several source of translations of Quran.
I will use a source of translation that comes from a site from Morocco (http://www.yabiladi.com) and the site recommended by the Centre for Muslim-Jewish Engagement. (http://www.Altafsir.com)

I will first come with some quotes of the Quran on the question of the Muslims into war.
For that I will use the Surah al-Anfal translated as the spoils of war by the site Altafsir.com that you can access through the Centre for Muslim-Jewish Engagement.
Then I will look at the issue of accusing someone by the Taliban.
For that I will use the Surah At-Tauba or At Tawba, The Surah At-Tauba or At-Tawbah is translated the repentance. (Altafsir.com).

The Muslims in war:


Al-Anfal - 8.72 . Lo! those who believed and left their homes and strove with their wealth and their lives for the cause of Allah , and those who took them in and helped them ; these are protecting friends one of another . And those who believed but did not leave their homes , ye have no duty to protect them till they leave their homes ; but if they seek help from you in the matter of religion then it is your duty to help ( them ) except against a folk between whom and you there is a treaty . Allah is Seer of what ye do .http://www.yabiladi.com/coran/search.php?query=protect&lg=en&min=20

[8:72]
BEHOLD, as for those who have attained to faith, and who have forsaken the domain of evil and are striving hard, with their possessions and their lives, in God’s cause, as well as those who shelter and succour [them] – these are [truly] the friends and protectors of one another.
But as for those who have come to believe without having migrated [to your country] – you are in no wise responsible for their protection until such a time as they migrate [to you]. Yet, if they ask you for succour against religious persecution, it is your duty to give [them] this succour – except against a people between whom and yourselves there is a covenant: for God sees all that you do.http://www.altafsir.com/ViewTranslations.asp?Display=yes&SoraNo=8&Ayah=0&Language=2&LanguageID=1&TranslationBook=7

These are the translation of the same Surah and the same verse; and both are correct translations.
I personally think we have to go for the first version; this seems to be more in accordance with the Taliban way of understanding the Quran. But this shows how it is difficult to come with ONE understanding.

This verse (Q8.72), in a literal translation, can be understood as the obligation of the Muslim to help Muslim during war time.
Lo! those who believed and left their homes and strove with their wealth and their lives for the cause of Allah , and those who took them in and helped them ; these are protecting friends one of another

In verse 8.74 from the same surah, it is said:

Al-Anfal - 8.74 . Those who believed and left their homes and strove for the cause of Allah , and those who took them in and helped them these are the believers in truth . For them is pardon , and a bountiful provision
http://www.yabiladi.com/coran/search.php?query=protect&lg=en&min=20


[8:74]And they who have attained to faith, and who have forsaken the domain of evil and are striving hard in God’s cause, as well as those who shelter and succour [them] – it is they, they who are truly believers! Forgiveness of sins awaits them, and a most excellent sustenance.http://www.altafsir.com/ViewTranslations.asp?Display=yes&SoraNo=8&Ayah=0&Language=2&LanguageID=1&TranslationBook=7

Truth, as to be understand as “faith in Islam” but also as “The Truth” given by Allah. So it is a duty for the Muslim or the true believer to support the Taliban. So the accusation may be interpreted in a wider view than just committing an act of war against the Taliban. Here again, the interpretation has to be taken with great precautions.

Accusing a Muslim of treason:


At-Tauba - 9.71 . And the believers , men and women , are protecting friends one of another ; they enjoin the right and forbid the wrong , and they establish worship and they pay the poor-due , and they obey Allah and His messenger . As for these , Allah will have mercy on them . Lo! Allah is Mighty , Wise .http://www.yabiladi.com/coran/search.php?query=protect&lg=en&min=20


[9:71]AND [as for] the believers, both men and women – they are close unto one another: they [all] enjoin the doing of what is right and forbid the doing of what is wrong, and are constant in prayer, and render the purifying dues, and pay heed unto God and His Apostle. It is they upon whom God will bestow His grace: verily, God is almighty, wise!http://www.altafsir.com/ViewTranslations.asp?Display=yes&SoraNo=9&Ayah=0&Language=2&LanguageID=1&TranslationBook=7

Truth, as to be understand as “faith in Islam” but also as “The Truth” given by Allah.
This is generally understood as: It is forbidden to spread discordance among the Muslims. So it is also a problem for the Taliban to accuse someone as this is speading war and discordance among the Muslim.

So entering in the home of someone, to search it, can clearly be seen as an offence for the person searched but it also is a potential offence for the Taliban.
If the Taliban search a house and cannot find anything, this can be interpreted as an offence against Allah. Therefore the presence of the witness is even more important. Also this can also explain why this has to be authorised at local level.

[M-A Lagrange]

To stick with the "rules" we agreed on, I will explain what has been the rational behind the post to try to explain why it is so important to not enter a house.
I should have start by this but... :o
I will now explain why I proposed to explain the rules through only Quran quotes and in its literal version.
It is due to the fact that Taliban are in the Wahhabist and Salafist tradition.
Most of the information of that post are coming from Wikipedia fr and Wikipedia the free encyclopedia.

Where comes the word Wahhabism from?

Wahhabism as a word comes from Suleyman ibn Abd al-Wahhâb, the brother of Mohammed Abd el-Wahhâb, from a book criticizing the doctrine proposed by his brother in a book called (translated by my self from french) “The holy lightining refuting wahhabism” (Al-sawaiq al-ila-hiyya fi al-radd ala al-wahabiyya)
http://fr.wikipedia.org/wiki/Wahhabisme

The doctrine

According to Wahhabism Wahhabi theology treats the Qur'an and Hadith as the only fundamental and authoritative texts. Commentaries and "the examples of the early Muslim community (Ummah) and the four Rightly Guided Caliphs (632-661 C.E.)" are used to support these texts but are not considered independently authoritative.
Ibn Abd-al-Wahhab further explains in his book Kitab-at-Tawhid (which draws on material from the Qur'an and the narrations of the prophet) that worship in Islam includes conventional acts of worship such as the five daily prayers; fasting; Dua (supplication); Istia'dha (seeking protection or refuge); Ist'ana (seeking help), and istigatha (seeking benefits). Therefore, making dua to anyone or anything other than Allah, or seeking supernatural help and protection which is only befitting of a divine being from something other than Allah are acts of shirk and contradict Tawhid. Ibn Abd-al-Wahhab further explains that Prophet Muhammad during his lifetime tried his utmost to cut all ways and roots towards shirk.
The most important of these commentaries are those by Ibn Abd-al-Wahhab (even though he was not among the first three generations) including his book Kitab al-Tawhid, and the works of Ibn Taymiyyah. Abd-al-Wahhab was a follower of Ahmad ibn Hanbal's school of fiqh (Islamic jurisprudence) like most in Nejd at the time, but "was opposed to any of the schools (Madh'hab) being taken as an absolute and unquestioned authority". Therefore, he condemned taqlid at the scholarly level.
Wahhabism also denounces the practice of blind adherence to the interpretations of scholars and the blind acceptance of practices that were passed on within the family or tribe. Of the most widely used excuse of the pagans around the time of the prophet was that they worshiped idols because they saw their forefathers engaged in that practice. Ibn Abd al-Wahhab wrote in support of the responsibility of the individual Muslim to learn and obey the divine commands as they were revealed in the Quran and the Sunnah. He upheld the view that blind deference to authority eventually leads one to neglect their direct connection with Qur'an and Sunnah. Islam is not an elitist religion in which one must be bound by priests and rabbis for any recourse to religious texts. He uses as evidence an ayah of the Qur'an in which Allah condemns the children of Israel for taking their rabbis as authorities besides Allah. This was because they gave supreme authority to scholars without any critical and evaluative mindset and gave ultimate loyalty and connection to the scholars and creation rather than Allah and his revealed texts.

Wahhabism as Fiqh or legislative system:

Two key aspects define a religious group's understanding of Islam: its philosophical approach and cultural background; and, most importantly, the methodology used to derive Fiqh.
The Wahhabis consider themselves to be 'non-imitators' or 'not attached to tradition' (ghayr muqallidun), and therefore answerable to no school of law at all, observing instead what they would call the practice of early Islam. However, to do so does correspond to the ideal aimed at by Ibn Hanbal, and thus they can be said to be of his 'school'.
http://en.wikipedia.org/wiki/Wahhabi

The recognition of Wahhabism:

Wahhabism is recognised as the orthodoxy in Islam since 1932, after the creation of the third wahhabit kingdom. Previously, wahhabism was considered as a deviant sect of Islam and condamned (radd)by the all the Sunny and Chia madh’hab (Islamic theological schools). But as it coincided with the al Nadha (the renaissance) period wich coupled anticolonial fighting and rediscovery of the Islamic culture, Wahhabism was accepted as the very Islamic orthodoxy in Arabia.
http://fr.wikipedia.org/wiki/Wahhabisme

the rational behind the posts:

The idea has been to use wahhabism tools: Quran and Haddith only. As I did not have the Hadith with good comments with me, I just took the Quran.
It is a starting point that gives tracks. The closest Law code and Law practice from the Taliban is Saudi Arabia Laws and Law practices.

[jmm99]

Kepp right on a-going - you're on a roll. :D

Earlier I linked to MSAWest (http://www.msawest.net/islam/) (Muslim Student Association West), which has a number of link pages to articles and sources, Muhammad (http://www.msawest.net/islam/fundamentals/prophet/), Qur'an (http://www.msawest.net/islam/quran/), Sunnah & aHadith (http://www.msawest.net/islam/fundamentals/hadithsunnah/), Islamic Law (http://www.msawest.net/islam/law/), and other topics. There are several large collections of aHadith in English. For the most part, little argument exists in Islam as to texts themselves. The differences come in interpretation and emphasis.

Cheers

Mike

[M-A Lagrange]

What are saying Saudi Arabia Laws?

Saudia Arabia Laws are accessible on the site Lexadin which provides an English version of almost all countries. That is the source I used.
http://www.lexadin.nl/wlg/legis/nofr/oeur/lxwesau.htm
I went to the law of criminal procedure law.
Under the section 4, search of the persons and the dwellings I found this:
Article 40:

The privacy of persons, their dwellings, offices, and vehicles shall be protected. The privacy of a person protects his body, clothes, property, and belongings. The privacy of a dwelling covers any fenced area or any other place enclosed within barriers or intended to be used as a dwelling.
Article 41:

A criminal investigation officer may not enter or search any inhabited place except in the cases provided for in the laws, pursuant to a search warrant specifying the reasons for the search, issued by the Bureau of Investigation and Prosecution. However, other dwellings may be searched pursuant to a search warrant, specifying the reasons, issued by the Investigator. If the proprietor or the occupant of a dwelling refuses to allow the criminal investigation officer free access, or resists such entry, he may use all lawful means, as may be required in the circumstances, to enter that dwelling.
A dwelling may be entered in case of a request for help from within, or in case of a demolition, drowning, fire, or the like, or in hot pursuit of a perpetrator.
Article 46:

A dwelling shall be searched in the presence of its owner or his representative or any adult member of his family residing with him. If no such person is present, the search shall be conducted in the presence of the Umda (Chief) of the quarter or any comparable officer or two witnesses. The owner of the dwelling or his representative may peruse the search warrant and a note to that effect shall be entered into the record.

So the rational behind the Saudi Arabia Law for searching a house is the protection of persons and properties. In fact the law in Saudi Arabia is pretty much the same as in West. It is only the source of the Law that differs. Sharia has been used as source for positive legislation seeking first to protect individuals and properties.

The Taliban rule 53 is:

The mudjahidin are not allowed to search local people’s houses. If it is necessary to search someone’s house, you must have the provincial authority’s permission, and you must take with you two elders of that area during the search of the house.

Unlike in the Taliban code of conduct, the presence of two witnesses is requested only when the owner or representative or any adult member of the family is not available and after having requested support from the chief of quarter or any comparable officer.
Also,it is not forbiden to search an house, you need to have legal reasons.

Now I let Mike (If he is Ok) or any others compare with US troops code of conduct to search an house.

[jmm99]

Sorry, M-A, this is an area I haven't looked at except very generally. Recourse to the US domestic rules for searches and seizures would not be helpful.

In general, the specific rules will first depend on the SOFA, or equivalent informal agreement, with the government of the host country. The specific rules in-theatre, and on down to units, are probably not open-source since most specific ROEs/RUFs are classified.

Someone else will have to answer this - if they can without violating OpSec.

Regards

Mike

[Igel]

M-A Lagrange, jmm99,

Very good posts!

I think this is an interesting thread and I don't want it to die. Unfortunatly I have no background knowledge about sharia law. So right now I can't really contribute anything to the disscussion. However I will read your posts more carefully and especially read the book (http://books.google.com/books?vid=ISBN1428910395&id=5F-JEmNr9yUC&printsec=frontcover#v=onepage&q=&f=false) M-A Lagrange linked (that looks interesting).

[jmm99]

For some reason, Google Books doesn't work on this computer. Anyway, I believe we are talking about this short monograph (51 pp.), Lieutenant Commander Youssef Aboul-Enein & Sherifa Zuhur, Islamic Rulings on Warfare (http://www.strategicstudiesinstitute.army.mil/pdffiles/pub588.pdf) (2004), which downloads in pdf (free) from the U.S. Army War College.

This monograph is written from the following viewpoint (p.5 - all page cites are to the pdf file pages):


The authors of this monograph share their respective connections with the topic.

Lieutenant Commander Aboul-Enein: In 2000, I encountered Dr. Bernard Lewis, a famous Princeton scholar of Islamic history and author of many books on Islam, delivering a speech on Capitol Hill. He stressed the importance of classic Arabic and Islamic texts.

Later, when confronting extremist interpretations of Islam, I saw the importance of these texts, especially the Quran (the Islamic book of divine revelation), the hadith (Prophet’s Muhammad’s sayings and deeds), and the 1,400 plus years of commentary, which essentially run counter to current jihadist ideology.

Dr. Zuhur: For 20 years, I have interviewed Egyptian, Syrian, Jordanian, Palestinian, Saudi, and other Islamists who cite verses from the Quran to support their worldview of necessary and continuous conflict between Islam and the West. Yet, throughout my own education, I was exposed to liberal and humanistic interpretations of Islamic doctrine and law. Now we ask: Which Islamic vision is to prevail?

Now, please understand: I have no objection to "liberal and humanistic interpretations of Islamic doctrine and law." However, the AQ and Taliban interpretations are not going to correspond to the interpretations of more Westernized Muslims. E.g., in speaking of Mohammed Atta (p.5):


His version of Islam is one of misguided faith and misplaced loyalty to those who hide Islam’s rich 14 centuries of discussion, debate, and intellectual exploration.

While this is an overstatement, the more extreme Salafists do rely most heavily on the texts from the era of the first series of "right-standing" caliphs. But they are also shaped by the commentaries generated by later Muslim clerics.

This monograph presents a strategy for an propaganda campaign similar to what both sides used in the Cold War (pp.5-6):


Since 9/11, the United States has grappled with how to counter the abuse of Islam by militants who inspire indiscriminate mass murder and suicide. Some studies argue that solving the Israeli-Palestinian dispute or addressing poverty would offer immediate relief from Islamic militancy. Certainly, programs addressing the political and economic crises in the area should be undertaken. But these alone will not solve the expansion of Islamic radicalism.

Islamic radicalism does not stem solely from desperation, nor from a sense of inferiority, as some theorists maintain. Instead, in the 3 1/2 decades of this recent period of Islamic revival and militancy, we have seen that radicals come from a variety of social and educational backgrounds and political circumstances.

Hence, we also need a long-term strategy that involves discrediting Islamic militant thought, such as that propagated by al-Qaeda’s strategist Ayman al-Zawahiri in several books that draw upon a combination of the Quran, the hadith, and radical Islamic texts written from the 13th to the late 20th century.

Hence, while scholarship certainly went into its composition, it is not (and does not claim to be) an unbiased scholarly work. I would class it as a good brief in opposition to the extreme Salafist positions.

That being said, what the monograph finds to be normative in Islamic law, is of little comfort to any US soldier reading this who is in or going to Iraq or Astan, or any other place in the Muslim World (p. 12):


Further, this law recognized and was organized into two categories dealing with the abode, or territory of Islam (dar al-Islam); and the abode of war (dar al-harb, lands not controlled by Muslims). Those from the abode of war should only enter Muslim territory under an agreement known as an aman that entitled them to trade, or to serve as an emissary, or to enter for other peaceful purposes.[7]

7. Numerous details on the rules of safe-conduct, or aman, are provided in al-Shaybani’s Siyar. See The Islamic Law of Nations: Shaybani’s Siyar (Kitab al-siyar alkabir), Majid Khadduri, trans., Baltimore: Johns Hopkins Press, 1966, pp. 158-194.

One might dwell on this.

The monograph goes on to discuss many specific issues.

Best

Mike

[carl]

The specific rules in-theatre, and on down to units, are probably not open-source since most specific ROEs/RUFs are classified.


If true, doesn't this put us at propaganda disadvantage? The Taliban can say "Look here is our rule. It is for all to see and it is consistent with Islamic and local tradition. Those infidels do not respect our ways and are not man enough to tell you what rules they use."

[jmm99]

Hope you haven't been flying sleep-deprived. :D

As to your serious post. True. Sometimes the political effort and the military effort collide, where both have good reasons for what each wants to do.

In this case, I don't know there was a collision because I know not the military rules for house entries and searches in Iraq and Astan. I searched through various CLAMO pubs covering both campaigns and came up empty.

Judging from the silence in this thread to the question, I infer we are dealing with classified rules and OpSec.

Regards to thou (former Yooper; is there ever a former Yooper ? :))

Mike

[jmm99]

Joseph C. Myers, “The Quranic Concept of War (http://www.carlisle.army.mil/USAWC/Parameters/06winter/win-ess.htm),” Parameters, Winter 2006-07, pp. 108-21, reviewed The Quranic Concept of War, by Brigadier S. K. Malik of the Pakistani Army (originally published in Pakistan in 1979).

I do not have this book - is there a re-print at a reasonable price ?

In any event, the review is worth the read; and the book was recommended by LTC Myers:


Historiography

In The Quranic Concept of War, Malik seeks to instruct readers in the uniquely important doctrinal aspects of Quranic warfare. The Quranic approach to war is “infinitely supreme and effective . . . [and] points towards the realization of universal peace and justice . . . and makes maximum allowance to its adversaries to co-operate [with Islam] in a combined search for a just and peaceful order.”[10] For purposes of this review, the term “doctrine” refers to both religious and broad strategic approaches, not methods and procedures. Malik’s work is a treatise with historical, political, legalistic, and moralistic ramifications on Islamic warfare. It seemingly is without parallel in the western sense of warfare since the “Quran is a source of eternal guidance for mankind.”[11]

The approach is not new to Islamists and other jihad theorists fighting according to the “Method of Mohammed” or hadith. The lessons learned are recorded

109/10

and form an important part of Quranic surah and jihadist’s scholarship.[12] Islamic scholars both Muslim and non-Muslim will find much to debate in terms of Malik’s view of jihad doctrine and Quranic warfare. Malik’s work is essentially modern scholarship; although he does acknowledge the classical views of jihad in many respects.[13]

Malik’s arguments are clearly parochial, often more editorial than scholarly, and his tone is decidedly confident and occasionally supremacist. The reach and influence of the author’s work is not clear although one might believe that given the idealism of his treatise, his approaches to warfare, and the role and ends of “terror” his text may resonate with extremist and radicals prone to use terroristic violence to accomplish their ends. For that reason alone, the book is worth studying.

10. Ibid ., p. 1.

11. Ibid., pp. I-ii.

12. See for example the discussion by Dr. Mary R. Habeck, “Jihadist Strategies in the War on Terrorism,” The Heritage Foundation, 8 November 2004, http://www.heritage.org/Research/NationalSecurity/hl855.cfm.

13. David Cook, Understanding Jihad, (Berkeley: Univ. of California Press, 2005). There is approximately 1,400 years of jihad scholarship beginning with Mohammed and his military campaigns. Classical approaches to jihad as described by Mohammed’s successors, Abu Bakr for example, and the challenges presented by the struggles of succession to Mohammed.

From LTC Myers' Evaluation:


General Malik’s thesis in The Quranic Concept of War can be fundamentally described as “Islam is the answer.” He makes a case for war and the revitalization of Islam. This is a martial exegesis of the Quran. Malik like other modern Islamists are, at root, romantics. They focus on the Quran for jihad a doctrine that harkens back to the time of the Prophet and the classical-jihadist period when Islam enjoyed its most successful military campaigns and rapid growth.

The book’s metaphysical content borders on the supernatural and renders “assured expectations” that cannot be evaluated or tested in the arena of military experience. Incorporating “divine intervention” into military campaigns, while possibly advantageous, cannot be calculated as an overt force multiplier. Critics may also point to the ahistorical aspect of Malik’s thesis; that Islam is in a state of constant struggle with the non-Islamic world. There are examples of Muslim armies serving side by side with Christian armies in combat and campaigns are numerous, with Iraq being but a recent example.[65]

65. Four notable examples are the Crimean War where French, British and Ottoman Forces allied against the Russians; Fuad Pasha of the Ottoman Army served as a coalition partner with French Army during the 1860 Rebellion in Syria; more recently Muslim Arab and Kabyle soldiers served in the Harkis of the French Army in the French-Algerian War; and, of course, today in Iraq. [B]Malik would address some of these events as alliances of convenience serving Islam’s interests in accord with the Quran and Sharia Law, others as takfir or treason.

See post #52 above for non-Muslim troops in Muslim lands.

[carl]

No. I'm on the night shift over here so I go to bed when the sun comes up. I can tell you some falling asleep in the cockpit stories though if you want to hear some. Every pilot, and I mean EVERY pilot has some.

I think that this may be a case where opsec and desire for secrecy will do considerable more harm than good in the long run. From M-A's posts this has a lot of history behind it and it means a lot to those people. The Taliban, in promulgating rule 53 is announcing that they recognize and will address the concern. If we are silent about it, we are saying in effect (pardon the phrase) "screw you guys. we don't care about your traditions. we just care about what is convenient to us."

That can do our side a lot of harm with those prickly Pathans, especially if the Taliban point it out every chance they get. I suspect they do that.

Maybe this is like Dr. Strangelove when Gen. Turgidson says "But he'll see the big board!" Perhaps we'd be better off if they did see the big board.

One of my friends from MQT gave me a Yooper green card. How often do I have to renew those?

[jmm99]

are perpetual - and entitle you, if you fly into Mt. Brockway while asleep, to 101 Keweenaw virgins - if you can find them.

Which is a much easier question to answer than resolving the question of whether to classify information or release it.

If we are publishing our Iraq and Astan entry and search rules, I've not found them. But, if anyone else has open-source, a post here would be appreciated.

Cheers

Mike

[M-A Lagrange]

Hello everybody

What Carl just said is exactly my opinion. In the battle of legitimacy among the people, Taleb have taken a great strategic advantage.

I also go with JMM on the book on Islamic rulings in warfare (yes, it is the same). I did mention that it did not concern this actual debate but it is good for anyone to have a look at it. It shows that Taleb are not the real good guys they pretend.
But may be unlike JMM, I have some restrictions on Barnard Lewis books (I have a whole collection at home). May be because he is too close to the clash of the civilisations theories for me.

I am actually working on the distribution of security among traditional societies. Afghanistan is one of them. My feeling is that we are looking at the wrong side of the problem. Traditional societies are not based on distribution of security but rationalised distribution of insecurity. But we are far from our subject. (or may be not in fact)

I think that a methodic explanation of the Taleb rules could be very interresting and could help to understand why they are organised that way and not another.
I will come with new stuff but need some rest first. :D

[jmm99]

In this area (as in many others), I don't blindly accept the editorializing of experts in the field (and Bernard Lewis does qualify in that regard). I don't ask others to accept my editorializing unless it is backed up by reference back to the original sources.

That being said, Lewis does often quote translated original sources, and in fact has some volumes devoted to compiling them. So do others and the translated originals can often be found on the Net. Unfortunately, I am not an Arabist.

As to this:


from M-A
Traditional societies are not based on distribution of security but rationalised distribution of insecurity.

Part of law is based on security (e.g., property boundaries). Another part is based on reciprocity (e.g., contracts). So, your concept of "rationalised distribution of insecurity" would have relevance to what we are now discussing.

I don't know whether a "rationalised distribution of insecurity" would relate in any way to AQ writer Naji's The Management of Savagery (http://www.wcfia.harvard.edu/olin/images/Management%20of%20Savagery%20-%2005-23-2006.pdf) - although that in a large way deals with a distribution of "insecurity" as part of the intermediate state between non-Islamic governance (as defined by AQ) and Islamic governance (again as defined by AQ). However, that may well be far from what you are presenting.

I suppose the simplest way to present your theory is to provide:

1. An example of "distribution of security" in a given traditional culture (perhaps imposed on it, if it does not normally operate that way).

2. An example in the same or similar culture of "rationalised distribution of insecurity" (presumably how the culture works if left alone).

This topic has obvious relevance to local governance in Astan; and what will work better.

Cheers

Mike

[M-A Lagrange]

Ah... Mike. I like your rectitude.
Like I said, I have many of Lewis books and he is an expert. His way to explain how movement like AQ thought they were powerful enough to defeat USA after the defeat of USSR in Afghanistan (with US support) is extraordinary clear. (What went wrong with Islam; I’m right, you’re wrong go to hell…)
He is an expert of Islam but I also reserve to me the right to have an independent opinion. My reserves are purely on the clash of civilisations theory.


Les ressentiments actuels des peuples du Moyen-Orient se comprennent mieux lorsqu’on s’aperçoit qu’ils résultent, non pas d’un conflit entre des Etats ou des nations, mais du choc entre deux civilisations. Commencé avec le déferlement des Arabes musulmans vers l’ouest et leur conquête de la Syrie, de l’Afrique du Nord et de l’Espagne chrétiennes, le “grand débat”, comme l’appelait Gibbon, entre l’islam et la chrétienté s’est poursuivi avec la contre-offensive chrétienne des croisades et son échec, puis avec la poussée des Turcs en Europe, leur farouche combat pour y rester et leur repli. Depuis un siècle et demi, le Moyen-Orient musulman subit la domination de l’Occident – domination politique, économique et culturelle, même dans les pays qui n’ont pas connu un régime colonial (...). Je me suis efforcé de hisser les conflits du Moyen-Orient, souvent tenus pour des querelles entre Etats, au niveau d’un choc des civilisations.
Bernard Lewis, Islam, Quarto, Gallimard, Paris, 2005, p. 55.
(sorry do not have the quote in english)

There was no judgement of you from my part but only a reminder that the author is also controversial, at least among the French intellectual society. Not even talking about the Muslim society.
We have here to accept that I am French and you are American. Two cultures, close but different. That’s what makes the discussion rich.
As you warn the readers on the orientation of the Islamic Ethic on warfare, I also provided my personal reserves on the fact that Lewis arguments are not fully neutral.

But what can I say on your editorial... You came with Gerard Chaliand who is just a great expert I admire. I would recommend his last book (do not know if it is translated in English) le nouvel art de la guerre 2008 Edition L’Archipel, 2008
(the new art of war).

On terror, I would recommend to French readers to have a look at http://www.ifri.org/files/Securite_defense/Focus_strategique_6_Hecker_Terreur.pdf It is about the “good use of terror” in counterinsurgency. Here again, some may disagree.

Well actually what I am working on is more access on showing the economical rational that will lead members of traditional societies to choose insecurity and disaster management rather than unknown or known failure of security management.
Here again, do not mistake me, I am speaking of the USSR experience concerning Afghanistan.
My first postula is that all societies are based on protection. The question is how do they protect? By the distribution of security or the distribution of insecurity? But as I said, this has to be polished.

[jmm99]

is to me an impossibility in a physical, tangible sense. A clash of leaders and their followers, influenced by tangible and intangible factors, is quite tangible and possible (e.g., the Battle of Tours (http://en.wikipedia.org/wiki/Battle_of_Tours)).

There, Charles (not Martel, the Hammer, until a century later) and Al Ghafiqi probably had little knowledge (much less understanding) of the other's civilization - and, if they had been so knowledgeable and understanding, their clash would most likely still have occured.

Those who aspirate "clashes of civilizations" (e.g., the Red Threat, the Yellow Peril) seem to me to be devotees of some form of Zoroastrianism's ultimate conflict between Ahura Mazda and Angra Mainyu.

I do not discount the motivation of ideology (particularly among leadership), or the manipulations of causes (slogans) directed to the masses in political efforts. I don't see "clashes of civilizations" as a useful concept.

As to this:


from M-A
We have here to accept that I am French and you are American. Two cultures, close but different.

No doubt. You guys eat snails. :D

Cheers

Mike

--------------------------

I leave such questions to speculative theology.

[jmm99]

These provisions seem important to me, since they evidence positive steps to establish a rule of law under a Taliban judicial system:


44 - If the local people come to the Mujahidin with their personal problems the leader of the group has no right to get involved. Only the provincial authority and district authority will consider these issues. They will try to have tribal leaders solve the problem. If this is not possible, then they have to take the issue to the provincial court.

32 - Every province must make a court with one judge and two Islamic experts so they can solve problems that the leader and elders cannot solve.

This independent judicial system (the local Mujahadin leader is excluded from the process) has two levels: (1) initial problem solving attempt at the local shura (or jirga, language dependent) level; and (2) secondary problem solving level before the provincial court.

My questions are whether this judicial system is actually operating; if so, in how many provinces; and what feedback is there about its "success" - how it is viewed by the populace. Anything open source on this ?

[carl]

The above is the headline of an AP story published on Jan. 21. The link is below.

http://www.journalgazette.net/article/20100121/API/1001210598


NATO spokesman Rear Adm. Gregory Smith said a new directive woul be issued soon to set down new rules for night raids. 'It addresses the issue that's probably the most socially irritating thing we do and that is entering people's homes at night.

The story elaborates upon how this is really upsetting the Afghans. I thought it would be of interest given as how this thread has addressed this very issue. I hope the new directive will be made public. That would be helpful.

[Tukhachevskii]

Joseph C. Myers, “The Quranic Concept of War (http://www.carlisle.army.mil/USAWC/Parameters/06winter/win-ess.htm),” Parameters, Winter 2006-07, pp. 108-21, reviewed The Quranic Concept of War, by Brigadier S. K. Malik of the Pakistani Army (originally published in Pakistan in 1979).

I do not have this book - is there a re-print at a reasonable price ?



Better...see here (http://wolfpangloss.files.wordpress.com/2008/02/malik-quranic-concept-of-war.pdf)

[jmm99]

HT for the link to Malik, The Quaranic Concept of War (http://wolfpangloss.files.wordpress.com/2008/02/malik-quranic-concept-of-war.pdf).

I recently (last week) ran into another product of the Pakistani Army, Lieutenant-General A.I. Akram, The Sword of Allah - Khalid bin Al-Waleed (http://www.grandestrategy.com/2007/12/sword-of-allah-khalid-bin-al-waleed.html) (1969) (pdf download (http://www.grandestrategy.com-a.googlepages.com/sword-of-allah-khalif-ibn-al-walid.pdf)), probably the greatest of the early Arab generals (victor at Yarmuk, etc. - Wiki for Walid (http://en.wikipedia.org/wiki/Khalid_ibn_al-Walid)).

Regards

Mike

[Tukhachevskii]

The first time I heard the name Khalid was when I discovered that Pakistan’s MBT (http://en.wikipedia.org/wiki/Al-Khalid_%28tank%29) (largely made in China) was to be named that (back when I was a wee nipper who thought fun was memorising Jane’s Armour and Artillery:rolleyes:). Only later did I bother to find out more. Thanks for the link. You might find these interesting too...


Izetbegovic, A., The Islamic Declaration: A Programme for the Islamisation of Muslims and the Muslims
Peoples (Sarajevo, 1990) (http://www.angelfire.com/dc/mbooks/Alija-Izetbegovic-Islamic-Declaration-1990-Azam-dot-com.pdf). Written by the former president of Bosnia-Herzegovina, Aliya Izetbegovic (http://en.wikipedia.org/wiki/Alija_Izetbegovi%C4%87).

Al-Maududi, A. A., Jihad in Islam (Beirut: Holy Koran Publishing House, 1939) (http://www.muhammadanism.org/Terrorism/jihah_in_islam/jihad_in_islam.pdf)

Al-Misri, Ahmad, Reliance of the Traveller, Rev. Ed., Ed & trans. N. H. M. Keller (Maryland: Amana
Publicatuons,1988) (http://www.islamicbulletin.org/free_downloads/resources/reliance_complete.pdf#page=10). The classic book of Shafi’i jurisprudence which points out, as do other works on Islamic jurisprudence, that the division of Sunni Islam into four legal schools doesn’t hide the fact that they agree on 70% of the central doctrines (the differences usually revolve around esoteric issues such as whether the quran was “created” or whether it was existent from the beginning of time, whether God has immutable natures, do his qualities mean his essential nature is split vs. Tauhid/unity, the degree to which ‘urf or common law can impinge upon the Shari’a, who constitutes a legitimate political authority empowered to declare Jihad, the degree of ijma necessary for a ruling to be binding, etc.). W. Montgomery Watt, the British Orientalist who converted to Islam, stated that the core doctrines were more than 70% identical but that’s a different matter. Also, one must be careful as Keller omitted to discuss slavery, amongst other topics, which is, however, still extant in the Arabic text to the right! I found the sections on the correct method to go to the loo/bog/toilet/ “bathroom” hilarious (especially regarding women....but then again I also enjoy watching Jackass, on the odd occasion!:eek:).

Haywood, J. A. & H. M. Nahmad, A New Arabic Grammar of the Written Language, 2nd Ed. (London: Lund Humphries, 1965) (http://www.ghazali.org/books/haywood-65.pdf). A standard work on Arabic grammar for those wishing to brush up their Arabic or for committed (is that a pun?) beginners.

Wehr, H., A Dictionary of Modern Written Arabic, 3rd Ed. Ed. & trans. J. M. Cowan (New York: Spoken Language Services, Inc., 1976) (http://www.ghazali.org/books/wehr-cowan-76.pdf). The indispensible classic especially in connexion with the above work.


Hughes, T. P., Dictionary of Islam being a cyclopaedia of the Doctrines, Rites, Ceremonies and Customs, together with the Technical and Theological Terms of the Muhammadan Religion (New Delhi: Manushiram Publishers, Ltd., 1995/1885) (http://www.ghazali.org/books/huges-1885.pdf). The classic and still largely unsurpassed work by an Orientalist who ranks with Lewis, Hurgronje, Jeffery, Watt, and Schacht as one of the great SME (and one who wrote before the post-modernist/Said inspired nonsense of the present). A friend of mine left his religion (he was a Sikh) after reading the entry on that in Hughes work, apparently they weren’t taught that (apparently they hate Muslims)!

Siddiqui, K., The Muslim Manifesto (London: The Muslim Institute 1990) (http://www.muslimparliament.org.uk/MuslimManifesto.pdf). Written by the founders of what is now the so called “moderate” British Council of Muslims during the Rushdie affair, illuminating for its statement that the publication of the Satanic Verses was a “declaration of war” on Islam. It also an excellent example of what Muslims consider “oppression” which is always useful when discussing what “defence” means to Muslims and to the doctrine of Jihad.

Ibn Nuhaas, The Book of Jihad, trans Noor Yamani (n.d) (http://kalamullah.com/Books/MashariAl-AshwaqilaMasarial-Ushaaq-RevisedEdition.pdf). Like the reliance of the Traveller it is a translation of a classic work accepted by the Sunni schools of Law. Unfortunately, the translator often forgets to separate his own voice from that of Ibn Nuhaas which can lead the unwary astray. I did have an original Arabic copy which had been scanned but I can’t seem to find the internet link.

[jmm99]

Hopefully, many of them of them will be as useful as Maududi's Jihad has been to my understanding.

Lots of DLing. :)

Regards

Mike