Can you be partly pregnant ?

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

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

He makes the same points in his main article.

Some legal comments (fairly brief) here.

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

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

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

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

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

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance,
US and allied forces ? If so, make your case - prove it
If you wonder why I am asking these questions, consult the Reporter's Notes to common Article III and preceding Articles I & II of the 1948 GCs.

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

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

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Comment (very much IMO)

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

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

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

Consider that for a moment.