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Thread: Defending Hamdan

  1. #21
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    Default US Judicial Standard Applied to Afghanistan

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

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

    US Embassy - Kabul
    About the embassy
    History of the Embassy

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

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

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

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

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

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

    6) Dr. Zalmay Khalilzad
    Presentation of Credential: November 24, 2003
    Termination of Mission: June 20, 2005
    http://kabul.usembassy.gov/about_the_embassy.html

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

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

    CRS Report for Congress
    Order Code RL30588
    Afghanistan: Post-War Governance, Security, and U.S. Policy
    Updated September 2, 2008
    Kenneth Katzman
    Specialist in Middle Eastern Affairs
    Foreign Affairs, Defense, and Trade Division
    http://www.fas.org/sgp/crs/row/RL30588.pdf

    Embassy of Afghanistan (Washington D.C.)
    History
    About the Embassy
    http://www.embassyofafghanistan.org/history.html

  2. #22
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    Default US & Afghan Positions 1919-1992 - part 1

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

    (pp. 5-7)

    Background to Recent Developments

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

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

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

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

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

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

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

    With Soviet backing withdrawn, on March 18, 1992, Najibullah publicly agreed to step down once an interim government was formed. That announcement set off a wave of rebellions primarily by Uzbek and Tajik militia commanders in northern Afghanistan, who joined prominent mujahedin commander Ahmad Shah Masud of the Islamic Society, a largely Tajik party headed by Burhannudin Rabbani. Masud had earned a reputation as a brilliant strategist by preventing the Soviets from occupying his power base in the Panjshir Valley of northeastern Afghanistan. Najibullah fell, and the mujahedin regime began April 18, 1992. [2] [2] After failing to flee, Najibullah, his brother, and aides remained at a U.N. facility in Kabul until the Taliban movement seized control in 1996 and hanged them.
    Despite the many changes in Afghan governments, US-Afghan diplomatic relations continued throughout the period, with direct Afghan representation at its Washington D.C. embassy from 1943 (next post).

  3. #23
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    Default US & Afghan Positions 1919-1992 - part 2

    Embassy of Afghanistan
    History
    About the Embassy

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

    Full diplomatic relations between the Afghanistan and the United States began in 1934. Shortly after the end of World War II, His Majesty King Zahir Shah dispatched Abdul Hussein Aziz as the first Afghan Ambassador to the United States. Ambassador Aziz leased a historic building from an outgoing Supreme Court Chief Justice (The building was later purchased by Ambassador Abdullah Malikyar). That building continues to house the Embassy more than half a century later. President Roosevelt appointed William Hornibrook as the first U.S. Ambassador to Afghanistan, on November 14, 1935. ....
    Afghan Representatives in Washington, D.C. (1943-1992)

    Abdul Hussain Aziz, Afghan Minister (1943-1948)
    Mohammed Naim Khan, Charge d'Affaires (1948-1950)
    Abdul Hamid Aziz, Charge d'Affaires (1950-1951)
    Mohammed Kabir Ludin, Ambassador (1953-1956)
    Dr. Najibullah Torwayana, Ambassador (1956-1958)
    Mohammed Hashim Maiwandwal, Ambassador (1958-1963)
    Dr. Abdul Majid, Ambassador (1963-1967)
    Abdullah Malikyar, Ambassador (1967-1978)
    Dr. Abdul Waheed Karim, Ambassador (1978-80)
    Noor Ahmad Noor, Ambassador (1980-1981)
    Dr. Mohed Salem Spartak, charge d'affaires (1982-1984)
    Mohammad Haidar Rafiq, charge d'affaires (1984-1987)
    Mia Gul, charge d'affaires (1988-1990)
    Abdul Ghafoor Jawshan, charge d'affaires (1990-1992)
    American Ambassadors to Afghanistan (1935-1992)

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

    From 1979 - 2001, the United States did not have an Ambassador posted in Afghanistan, although U.S. interests in Afghanistan were represented by a number of charge d'affaires. From 1981 [sic ?] to 2002, there was no official U.S. embassy in Kabul.
    Adolph Dubs was murdered in Kabul in 1979. Since the US embassy was not finally closed until 1989, there may be a typo ("1981") in the Afghan Embassy webpage.

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

  4. #24
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    Default US & Afghan Positions 1992-1996

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

    (pp. 7-8)

    The Mujahedin Government and Rise of the Taliban

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

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

    Immediately thereafter, Taliban gunmen entered a U.N. facility in Kabul to seize Najibullah, his brother, and aides sheltered there, and subsequently hanged them.
    So much for Taliban respect for I Law and the GCs in September 1996 - Najibullah (who was a "bad guy") et al. had no trial - it was a good old fashioned lynching (mutilation and hanging - covered BTW by Soldier of Fortune back in that day - photos, etc.).

    -------------------------------------------
    Embassy of Afghanistan
    History
    About the Embassy

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

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

    American Ambassadors to Afghanistan (1992-1996)
    .....
    From 1979 - 2001, the United States did not have an Ambassador posted in Afghanistan, although U.S. interests in Afghanistan were represented by a number of charge d'affaires. From 1981 [sic ?] to 2002, there was no official U.S. embassy in Kabul.
    Despite the turmoil in Afghanistan, diplomatic relations continued with the Rabbani government from June 1992 until well into 1997.

  5. #25
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    Default US & Afghan Positions 1996-2001 - part 1

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

    All quotes below are from pp. 8-10.

    Taliban Rule

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

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

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

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

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

    On August 20, 1998, the United States fired cruise missiles at alleged Al Qaeda training camps in eastern Afghanistan, but bin Laden was not at any of the camps at the time. Some observers assert that the Administration, for varying reasons, missed other purported opportunities to strike bin Laden. Clinton Administration officials say that they did not try to oust the Taliban from power with U.S. military force because domestic U.S. support for those steps was then lacking and the Taliban’s opponents were too weak and did not necessarily hold U.S. values.
    The 1998 missile strike raises interesting I Law issues (not resolved today) about use of armed force within a nation that has no recognized government, or at least no governance in the affected territory. Let us not digress there.

    The “Northern Alliance” Coalition Against the Taliban

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

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

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

    Pashtun Islamists/Sayyaf. Abd-I-Rab Rasul Sayyaf, who is now a parliament committee chairman, headed a Pashtun-dominated mujahedin faction called the Islamic Union for the Liberation of Afghanistan. Even though his ideology is similar to that of the Taliban, Sayyaf joined the Northern Alliance.
    Since under US law, neither the Taliban nor the Northern Alliance was the recognized Afghan government, neither of them represented a High Contacting Party under GC III, Art. 2., under US law. But, both of them were Powers under that article. The evidence (yet to be examined) seems to prove that, leaving aside formal acceptances of the GCs, neither of those Powers applied them to prisoners.

    Bush Administration Policy Pre-September 11, 2001

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

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

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

    Fighting with some Iranian, Russian, and Indian support, the Northern Alliance continued to lose ground to the Taliban after it lost Kabul in 1996. By the time of the September 11 attacks, the Taliban controlled at least 75% of the country, including almost all major provincial capitals. The Northern Alliance suffered a major setback on September 9, 2001, two days before the September 11 attacks, when Ahmad Shah Masud was assassinated by alleged Al Qaeda suicide bombers posing as journalists. He was succeeded by his intelligence chief, Muhammad Fahim, a veteran figure but who lacked Masud’s charisma or undisputed authority.
    There is some controversy as to exactly what the Clinton administration was trying to accomplish in US-Afghan relations during the period 1996-2000. The Clinton policies carried over into Bush pre-9/11.

  6. #26
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    Default US & Afghan Positions 1996-2001 - part 2

    Embassy of Afghanistan
    History
    About the Embassy

    Sadly, the Embassy was not immune from the conflict that raged over the ocean within Afghanistan. After the Taliban seized control of Kabul, representatives from competing factions feuded over control of the Embassy building. Although the Taliban was not recognized by the United States, their representative in Washington occupied the Embassy building until the summer of 1997, whereupon the State Department officially closed the Embassy.
    The bottom line, recognized by both nations, was that stated in the CRS Report (above post):

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

    Constitution: none

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

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

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

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

    Legislative branch: non-functioning as of June 1993

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

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

  7. #27
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    Default US & Afghan Positions 1996-2001 - part 3

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

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

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

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

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

    In the meantime, the green-white-and-black Afghan flag flying over the embassy was secretly replaced by the white Taliban banner. The flag was replaced by the Afghan flag at about noon. ....
    Steve Coll in Ghost Wars (pp.348-352) has quite a bit more about Mr. Mohabbat's problems. The NY Times account is accurate in what is said.

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

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

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

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

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

    In May, the Taliban asked Mr. Mohabbat to give up his post in favor of Mr. Jamal, but the State Department has not accredited Mr. Jamal as his successor, said an official at the embassy who spoke on condition of anonymity. ....
    The position of the US Executive branch - "neutral", "no effective Government in the country", "civil war", etc., as recounted by the Times, establishes a cut-off date for withdrawal of diplomatic recognition from the Rabbani government (August 15, 1997). But, non-recognition of the Taliban was also the clear parallel policy of the Executive branch.

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

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

    The Islamic State of Afghanistan, recognized by the United Nations, is still a thorn in the side of the Taliban, the group that is widely regarded as controlling 90 percent of the country. It is the Islamic State of Afghanistan that occupies the Afghan seat in the United Nations, is recognized by a large number of states, and has embassies in many of the European capitals. (The Taliban, in contrast, is recognized by three states: Pakistan, the United Arab Emirates and Saudi Arabia.)
    .....
    Regardless of the acreage controlled by each side, what is rarely mentioned is that the population in each of the opposing camps is almost evenly split. Some, as the Indian officials I met with recently, speak about this, but it is rarely mentioned in the United States. The Indians assert that Massoud's forces have somewhere around 40 percent of the population at present. ....
    Under the Belmont and Pink cases, a US court (after August 15, 1997) could only hold that no recognized government existed in Afghanistan - and, hence, no Power represented Afghanistan in its status as a "High Contracting Party" to the GCs. Did the situation change ? Indeed, it did.

  8. #28
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    Default US & Afghan Positions 2002-2008 - part 1

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

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

    September 11 Attacks and Operation Enduring Freedom.

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

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

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

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

    The Taliban regime unraveled rapidly after it lost Mazar-e-Sharif on November 9, 2001. Northern Alliance forces - the commanders of which had initially promised U.S. officials they would not enter Kabul - entered the capital on November 12 to popular celebrations. The Taliban subsequently lost the south and east to pro-U.S. Pashtun leaders, such as Hamid Karzai. The end of the Taliban regime is generally dated as December 9, 2001, when the Taliban surrendered Qandahar and Mullah Omar fled the city, leaving it under tribal law administered by Pashtun leaders such as the Bashir Noorzai brothers. Subsequently, U.S. and Afghan forces conducted “Operation Anaconda” in the Shah-i-Kot Valley south of Gardez (Paktia Province) during March 2-19, 2002, against as many as 800 Al Qaeda and Taliban fighters. In March 2003, about 1,000 U.S. troops raided suspected Taliban or Al Qaeda fighters in villages around Qandahar. On May 1, 2003, Secretary of Defense Rumsfeld said “major combat operations” had ended.
    There are many additional facts, documents, etc,. relevant to the legal status of the US and its allies in OEF. Those facts, and any legal issues generated, are not relevant to the simple issues here - what Powers were involved in the armed conflict; which of those Powers were explicit Parties to the GCs; and which (if any) of the non-contacting Powers could avail themselves of GC III protections by compliance with the "accept" and "apply" requirements of Art. 2, para 3.

    Post-War Stabilization and Reconstruction

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

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

  9. #29
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    Default US & Afghan Positions 2002-2008 - part 2

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

    The Bonn Agreement.

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

    http://www.ag-afghanistan.de/files/petersberg.htm

    http://www.afghana.com/Government/Af...eementBonn.htm

    The Bonn Agreement (cont.)

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

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

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

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

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

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

    US Embassy - Kabul
    About the embassy
    History of the Embassy
    .....
    The United States recognized the Interim Authority in Afghanistan on Dec 22, 2001.
    The resumption of diplomatic relations is summarized more fully in the next post.

  10. #30
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    Default US & Afghan Positions 2002-2008 - part 3

    Here, we have a brief summary from the Afghans, which agrees with the US DoS.

    Embassy of Afghanistan
    History
    About the Embassy

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

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

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

    6) Dr. Zalmay Khalilzad
    Presentation of Credential: November 24, 2003
    Termination of Mission: June 20, 2005 ....
    In one reporter's opinion, we were seeing in 2002 "A House, a Nation Rebuilt" - the jury is still out on the "nation" part.

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

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

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

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

    Now, five years later, Afghanistan has a new government and its official American headquarters a second chance. ....
    This brings us to the end of our factual evidence dealing with the US and Afghan positions on diplomatic recognition over the key period from 1996 through 2002.

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

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    Default UK Home Office Position - part 1

    The following is a good summary of the Taliban's efforts (largely unsuccessful) to gain governmental recognition by the international community.

    AFGHANISTAN ASSESSMENT
    Version 4
    September 1999
    Country Information and Policy Unit

    1.1 This assessment has been produced by the Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office, from information obtained from a variety of sources.
    http://www.asylumlaw.org/docs/afghan...anistan_ca.htm

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

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

    International Recognition

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

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

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

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

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

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

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

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

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

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

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

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

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

    [5] Keesing's Record of World Events [j] October 1998
    The events after 1999 did not change this picture. In fact, the Taliban's diplomatic efforts suffered some setbacks, even before 9/11.

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    Default UK Home Office Position - part 2

    The Home Office Assessment was periodically updated. Here is the version just before 9/11, which shortened the longer discussion in the 1999 Assessment.

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

    5.4.28 Pakistan, Saudi Arabia and the United Arab Emirates recognized the Taliban as the government of Afghanistan in May 1997. [7d] The movement has however won no other international or UN recognition, and former President Rabbani continues to be acknowledged by many, [1] including Iran and Russia, [11a] as the rightful leader of Afghanistan. [1] The Taliban has found itself internationally isolated because of its discriminatory policies on grounds of gender, the perception that it allows Afghanistan's territory to be used as a base for international terrorism and the concern over the reported production and export of illegal drugs from Afghanistan. [7i]
    http://www.asylumlaw.org/docs/showDo...documentID=456

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

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

    Testimony on the Situation in Afghanistan Before the United States Senate Committee on Foreign Relations
    Author: Dr. Barnett R. Rubin, New York University
    October 8, 1998
    http://www.cfr.org/publication/3088/...arnett_r_rubin

    The Tribune
    September 27, 2001
    Global fight against terrorism
    G. Parthasarathy
    How India should play its card
    ......
    President Burhanuddin Rabbani leads the anti-Taliban Northern Alliance in Afghanistan. With Saudi Arabia and the United Arab Emirates deciding to withdraw their diplomatic recognition, Pakistan alone recognises the Taliban government today. President Rabbani’s government, however, enjoys overwhelming international recognition and is strongly backed by Iran, Russia, Afghanistan’s Central Asian neighbours and India.
    http://meaindia.nic.in/opinion/2001/09/27trb.htm

    US LEANS ON PAKISTAN TO FIND BIN LADEN;
    Islamabad Backs Away from Ties with Taliban (sort of)
    [Nov 2001]
    http://www.blythe.org/nytransfer-sub...Find_bin_Laden

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

    http://www.afghanistannewscenter.com...hive_2000.html

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

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    Default Summary and Conclusion - Questions to be Anxwered

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

    1. Rabbani government - recognition ended 15 Aug 1997.

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

    3. Interim Authority (and successors) - from 22 Dec 2001.
    At no point was the Taliban recognized by the US Executive branch as either the government of Afghanistan or as a "new nation".

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

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

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

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

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

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

    Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it
    I expect that the evidence will show, to the contrary, that the Taliban did not apply the GCs; and that instances of non-compliance can be easily found during the period 1996-2001.

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

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

    Comments ?
    Last edited by jmm99; 10-12-2008 at 04:17 AM.

  14. #34
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    Default Absolutely awesome compendium.

    Your capacity for gathering and informing is super. Thanks

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    Default I always accept compliments ...

    most of all from Pink Bun paras, because my paralegal says they are just sooo... cute.

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

    My bill for the brief will be in the mail.

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    Default Redux

    This is just to bump this thread because it is relevant to this thread, The Indian role in Afghanistan (new title).

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