Where We Are - Where We Are Going
Before going on with what could become a very long-winded series, we might re-capitulate - where have we been and where we are going. In short, what is the end goal here ?
The purpose is to refute (my present view), or to confirm (less likely IMO), the heart of Bryan William's basic argument (post #1 refs): (1) that the Taliban was a nation (state), or alternatively the government of a recognized nation (state; i.e., Afghanistan); (2) that, as a nation or government, the Taliban had armed forces which included AQ's Ansar "brigade" as a constituent part; and (3) that, as such, the "troops" of the Taliban and AQ's Ansar "brigade" were protected persons via GC III, Arts. 2 and 4. The key to the discussion is the correct interpretation of those articles.
GC III, Art. 2 (posts ## 14-16) is primarily based on the concept of a High Contracting Party (a nation which has formally accepted the GCs), introduced in Art. 1, which is bound to abide by the GCs (whether it does so or not is a separate issue). Thus, the terms "party" or "parties" in Art. 2 initially refer to a High Contracting Party (more on Art. 2, para 3, below). Post #17 establishes that Afghanistan, as a recognized nation, was and is a "High Contracting Party" to the GCs.
Art. 2 also recognizes that other groups (not High Contracting Parties) may be involved in an "armed conflict". Thus, all organized groups involved in an armed conflict may fall within the definition of Powers involved in that conflict. For example, the Taliban was clearly a Power in the Afghan conflict (1994-2001), under Art. 2, para 3, (post # 16); and an Occupying Power (once it occupied much of Afghanistan, a High Contracting Party), under Art. 2, para 2 (post # 15).
GC III, Art. 2, para 3 (post # 16), establishes a procedure whereby a Power (not a High Contracting Party) can become a Party (for purposes of Art. 4 and the rest of the POW articles) by accepting and applying the GCs (thus my four questions, post # 10).
Of course, if a Power is or becomes the recognized government of the High Contracting Party (here, Afghanistan), that Power is the representative of a High Contracting Party; it is bound by and entitled to the protections of the GCs; and we proceed directly to GC III, Art. 4.
If a Power does not meet the requirements of Art. 2, para 3, we then have to consider application of common Art. 3 (included in all four GCs).
The recognized governments of Afghanistan have been cut and dried (from the standpoint of US diplomatic recognition) over much of its history. However, the situation during the period 1996-2001 was not so cut and dried (see, post # 18, for the conflicting "governments" in 1996-2001). We will address that period - and those before and after it - in subsequent posts.
As to the Taliban (and AQ's Ansar "brigade", assuming it was part of the Taliban's armed forces), we have the following flowchart:
The first step is determination of what group (if any) was the recognized government of Afghanistan during the relevant period (1996-2001). We are dealing with that issue in the context of the US judicial system (Article III Federal courts and US Military Commissions). Thus, we have to abide by the US judicial standard for diplomatic recognition of a government.1. Taliban was the recognized government of Afghanistan - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4); or
2. Taliban was not the recognized government of Afghanistan, but accepted and applied the GCs (as defined in GC III, Art. 2, para 3, post # 16) - go directly to GC III, Art. 4 (POW status for its armed forces as defined in Art. 4)[*]; or
3. Taliban was not the recognized government of Afghanistan, and did not accept or apply the GCs - do not go to GC III, Art. 4 (which cannot then apply), but consider the application of GC III, Art. 3. That has been the stance of the US government; albeit not always well-expressed.
Anyone may argue (here or elsewhere) that this or that government was (is) or should have been (should be) the "recognized government" of Afghanistan - whether de facto or de jure, efficient or legitimate, and so on - and even put together a "mock trial" to "adjudicate" the question. However, that argument will fail in a Federal court (see next post).
It is entirely conceivable that a court in another nation could reach a different determination. For example, a Pakistani court (if it followed the same basic rule) would be compelled to hold that the Taliban was the recognized government of Afghanistan during the period 1997-2001 - since that was the position of the Pakistani government.
[*] fn - "new nation". The same requirements and result would apply if it is argued that the Taliban's "state" was a new nation (since, as that nation, it would not be a High Contracting Party to the GCs). Since the US government (Executive branch) never recognized the Taliban "state" as a new nation, that argument would be rejected out of hand by any Federal court following established precedents.
The HAMDAN SYMPOSIUM (Terraplexic) has now closed, without substantial discussion of GC III, Arts. 2, 3 & 4. The Hamdan case is also pretty much history. However, the issues discussed in this long series of posts will return in the forthcoming MCA trials. So, I am proceeding with this as a reference for others and for me as those cases develop.
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