United States v. Najibullah Symposium – Bad Apples are Still Apples

Editors’ note: This post is part of a two-post symposium on a pretrial hearing in the case United States v. Najibullah. An introductory post by Professor Sean Watts provides background on the case and the hearing.

Earlier this year, I testified as a defense expert witness in a pre-trial hearing in United States v. Najibullah. My testimony addressed the accused’s status as a prisoner of war captured during armed conflict between the United States and the Taliban regime of Afghanistan. This post outlines the factual and legal bases for my conclusion that Mr. Najibullah is properly classified as a prisoner of war captured during an international armed conflict and entitled to combatant immunity for his lawful warlike acts. I have organized this post as a series of interrogatories that thoroughly explore the issue and should guide the court’s decision on the defense motion to dismiss charges.

Terrorism does not include soldiers killing enemy soldiers on the battlefield, so why is the United States claiming that it is?

Terrorism aptly describes the use of passenger airplanes to attack the World Trade Center on September 11, 2001, killing thousands and terrifying a nation. Terrorism also describes the 1995 explosion of a government building in Oklahoma City, Oklahoma, killing and wounding hundreds of men, women and children. From Tunis to London, many nations have been affected by terrorism, both domestic and foreign. Almost all affected nations have used their domestic criminal law to try and bring to account terrorists for acts designed to sow terror in civilian populations through their violent brutality.

In contrast, terrorism is not U.S. soldiers launching mortars at Taliban fighters in 2006 in Afghanistan during that long-running war. Nor is it soldiers shooting at Taliban fighters from U.S. military helicopters. Terrorism is also not an Afghan Taliban, fighting for his country as a member of its armed forces by attacking U.S. Army convoys and killing American service members who are in his country trying to kill him. Rather than terrorism, such actions represent the legalized nature of violence in war. Fighters kill other fighters, as that’s what the law of war (universally agreed to across the international community) allows. 

Why is the United States wasting government resources prosecuting in U.S. civilian federal court a lone Afghan Taliban fighter (of the thousands who fought) for allegedly killing U.S. soldiers in 2008 on the Afghan battlefield?

The Department of Justice perverts the word “terrorism” by describing what a Taliban fighter did when allegedly killing U.S. soldiers on the battlefield (and attacking U.S. military outposts and a military helicopter) as “numerous terrorism offenses relating to attacks against the U.S. military in Afghanistan.” Prosecuting him (the only native Afghan Taliban prosecuted in U.S. federal civilian court for alleged battlefield conduct in Afghanistan) for doing what thousands of members of the Taliban’s armed forces did (and what U.S. soldiers likewise did against their enemies in that 20-year war) is counterproductive, unwise, immoral (due to asymmetry), and inefficient. Such a misguided and seemingly abusive prosecution delegitimizes U.S. criminal law and undermines the law governing hostilities during war.

Indeed, if Mr. Najibullah is to be criminally prosecuted for killing American soldiers—otherwise in accordance to the laws of war as there are no claims that the American soldiers were in Mr. Najibullah’s custody, surrendering, or otherwise hors de combat—the United States should also prosecute U.S. service members (like myself) who deployed to Afghanistan in support of the U.S. and coalition effort to kill Mr. Najibullah and his Taliban military colleagues.

Why aren’t U.S soldiers likewise being prosecuted for killing Taliban members? 

Because they were doing what the law applicable to hostilities allows: killing enemy fighters. The point here is that Mr. Najibullah was doing the same thing regardless how distasteful (times a thousand) the Taliban cause and its brutal methods of governing. International law assumes—regardless who the “bad apple” is in a State versus State war and regardless how just the cause of one side is—that the rules governing the combatants doing the actual fighting are to be applied equally. The reason for this divorce of just cause from the rules that apply to fighting is simple: all States claim to be in the right when fighting wars. Combatants attacking enemy soldiers on the battlefield amounts to neither terrorism nor a war crime. The deaths of belligerents caused by their enemy are the tragic cost of war, a legal trade-off made to better protect civilians.

Why ignore the basic rule that fighters associated with States killing enemy fighters in war is generally lawful?

As highlighted above, while criminal terrorist acts can and do occur during war, a great many violent acts are lawful acts of war and consistent with international humanitarian law (IHL) (also known as the law of armed conflict, or the laws of war). Attacks against the enemy are quintessentially lawful acts of war (though subject to a regime of targeting rules not at issue in the charges in the case). The bottom line is that during war, belligerents can lawfully kill other belligerents, such violence is not “terrorism,” while civilians must be protected as much as feasible. Modern IHL not only prohibits the intentional and indiscriminate killing of civilians while simultaneously countenancing the killing of fighters, it also prohibits in war all “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population.”

This basic bifurcation of war’s legal landscape between the lawful killing of belligerents by belligerents on one hand and the unlawful killing of civilians on the other is operationalized, in part, through the doctrine of combatant immunity. This legal privilege protects those authorized to engage in war-like acts from criminal prosecution for those acts, so long as those violent acts are otherwise in compliance with IHL. Hence members of a State’s armed forces are shielded from criminal prosecution for killing enemy fighters but they are not shielded from prosecution for war crimes such as indiscriminately killing civilians or refusing to accept surrender. Indeed, States have a legal obligation to ensure the prosecution of all serious violations of international humanitarian law.

While seemingly a rational incentive for compliance with IHL, the combatant privilege is severely lopsided. It only applies in one of the two types of war that IHL recognizes: international armed conflict (State versus State, such as Ukraine versus Russia today). Combatant immunity under IHL does not apply in non-international armed conflicts that involve a State or States fighting against non-State armed groups, or wars in which non-State groups fight amongst themselves.

States have parsimoniously interpreted the doctrine of IHL combatant immunity not as a tool to incentivize compliance with the laws of war, but as a way to (quite unsuccessfully) control who can resort to armed violence during war. Only States and groups associated with States, in general, can lawfully employ armed force in war (putting aside a seemingly defunct exception in Additional Protocol I regarding wars of national liberation). Modern States understandably refuse to recognize that a non-State armed group is ever equal to a State, and hence refuse to confer combatant immunity to those not associated with a State

In other words, States extend combatant immunity under IHL only to States and State-related groups in international armed conflicts. They have feared conferring legitimacy through such a license to kill. Hence in non-international armed conflicts formal combatant immunity is non-existent.

The circumstances involved in United States v. Najibullah give rise to a stark yet instructive “if-then” statement:

(1) If one agrees with the United States and its allies (and the International Committee of the Red Cross, who seemingly dissuaded the United States from its original position that its war in Afghanistan was neither an international armed conflict nor a non-international one) that in 2008 (the year of Mr. Najubullah’s charged offenses) the hostilities between members of the Taliban and the United States and its coalition partners in Afghanistan constituted a non-international armed conflict (NIAC);

(2) then, a Taliban member who allegedly killed U.S. soldiers in Afghanistan during that conflict can be criminally prosecuted for that otherwise lawful act of war because that Taliban member has no combatant immunity by plain virtue of the conflict not being “international.”

To make this conflict characterization claim accurate—that a non-international armed conflict took place in 2008—one must determine that the Taliban was a non-State armed group fighting the United States and its partners, essentially a group with no State. This requires an objective assessment that the Taliban in 2008 had no State linkage, despite having been the government of the sovereign State of Afghanistan when the United States attacked in late 2001, triggering what was clearly at the time an international armed conflict. While the conflict was still ongoing, the United States installed successive Afghan governments that it sustained with American and coalition troops. Despite the continued fighting, the United States claims that the Taliban somehow became a non-State armed group by virtue of the puppet regimes it installed and propped up.

Yet the U.S. government’s implicit claim that the Taliban had no State linkage after 2002 and therefore the preexisting international armed conflict had become non-international is factually inaccurate considering what is now known about the long-running conflict. The Taliban continued the international armed conflict that started in 2001 and never lost total control of Afghanistan. Nor did they ever relinquish their claim to be the rightful government of Afghanistan, while continuously fighting the United States and its partners from 2001 to 2021.

A historical analogy is helpful here. Recall, General Charles De Gaulle lost all control of France during the Second World War. In fact, his Free French forces were the impetus for Article 4(A)(3) of the third Geneva Convention (GC III), a category of fighters entitled to combatant immunity in international armed conflict.

The Taliban are the Afghanistan war’s Free French, with an even greater sovereign nexus to the Afghan State than De Gaulle ever had to his France, which surrendered and was in part occupied. The Taliban were never in such a bad shape as De Gaulle vis à vis their State. Thus, if De Gaulle’s troops were the impetus for Article 4(A)(3), which the GC III drafting commentaries demonstrate, then the Taliban, while understandably normatively difficult to equate to the Free French, maintained their competing mantle of sovereignty over the State of Afghanistan. Hence, the international armed conflict that started in 2001 did not end until the 2021 withdrawal of U.S and coalition forces from Afghanistan.

Bad apples, despite being bad, are still apples.

If one accepts the U.S. position—that the United States can invade a country, drive its government into hiding as it continues to fight, install a new government (one that never exercised total control of the State and existed only due to the presence of the invading forces), and can simultaneously declare the international armed conflict over, despite the invading forces continuously fighting the original government representing the invaded State—then the 1949 Geneva Conventions are as manipulable as the earlier treaties they replaced. If this is how the law is to be interpreted, invading States can simply toggle on and off the much broader protections of IHL applicable to an international armed conflict.

Despite the U.S. claim that the war in Afghanistan was non-international in legal nature, Mr. Najibullah has a strong argument that the war in Afghanistan during the period of his relevant charged offenses was indeed an international armed conflict between two or more High Contracting Parties, per common Article 2 of the Geneva Conventions.

Caveat: in addition to being charged with otherwise lawful acts of war of attacking military objectives, Mr. Najibullah was originally indicted in 2014 (charges not unsealed until he was arrested in 2020) solely for alleged criminal involvement in the 2008 kidnapping of the New York Times reporter, David Rhodes, who later escaped his captivity. Kidnapping civilians (hostage taking) is a war crime, and therefore never shielded by combatant immunity. It was not until fall 2021 that the Department of Justice filed a superceding indictment of charges, adding murdering American soldiers, attacking military outposts, and shooting down a U.S. helicopter to Mr. Najibullah’s prosecution. It is these later 2021 charges that this author takes legal issue with, given that if they were committed, they were lawful acts of war by someone to whom combatant immunity applies.

According to Article 4 of GC III, “[m]ember(s) of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces,” enjoy prisoner of war status and through customary international law, combatant immunity for lawful acts of war. So do, per Article 4(A(3), “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” This latter prisoner of war category was squarely applicable to the Taliban and Mr. Najibullah.

Yet before exploring Article 4, GCIII in more detail, one must further dismantle the U.S. government’s assertion that the 2008 hostilities in Afghanistan were not international.

What was the legal character of the 2001-2021 war between the Afghan Taliban and the United States?

First, international humanitarian law, through common Article 2 of Geneva Conventions along with customary international law, provides a low bar for triggering an armed conflict between States. Traditionally, international armed conflict is understood as any clash between the armed forces of two States. It’s easy to see that the late 2001 U.S. invasion of Afghanistan met the applicable threshold of violence as well as the required legal personality of belligerent States.

However, common Article 2 is silent on the termination of the conflicts it identifies. Instead, the Conventions refer to an “end of active hostilities” to activate specific obligations such as the return of prisoners. Meanwhile reference to a “general close of military operations” is found in the fourth Geneva Convention relative to civilians, and understood by leading experts as the termination point of an international armed conflict.

Certainly, no general close of military operations in Afghanistan took place until late 2021. Rather, there was an international armed conflict from late 2001 until the U.S. withdrawal in 2021. This conflict was clearly between the Taliban, who once again constitute the government of Afghanistan today and, at all times between the U.S.-led invasion in 2001 to U.S. withdrawal in 2021, continued to represent the Afghan State (the Islamic Emirate of Afghanistan).

Like General Charles De Gaulle and the Free French during the Second World War, the Taliban continuously carried the mantle of State sovereignty throughout their international armed conflict against the United States and its coalition forces until the ignominious and tragic final withdrawal of U.S. forces in 2021. Thus the character of the conflict as international persisted between the Taliban and its State opponents from the U.S. invasion in late 2001 to 2021.

Second, as previously classified intelligence makes its way to the public, there is a strong argument that Pakistan covertly controlled the Taliban during a great deal of the armed conflict between the Taliban and U.S. and coalition forces. According to international courts and most scholars, “overall control” by one State of an organized armed group is sufficient to “internationalize” an armed conflict. Hence, not only was the conflict between the United States and coalition forces and the Taliban always international in character because it started that way. It was an international armed conflict because Pakistan was apparently in control of the Taliban to a sufficient degree to additionally internationalize this already international war during the time of the charged offenses against Mr. Najibullah.

Do the GC III Article 4 criteria for prisoner of war status exclude organizations like the Taliban?

No, GC III, Article 4 does not require that armed forces of a State, such as the Taliban, collectively meet the four requirements outlined in Article 4A(2) for resistance movements. State armed forces are not resistance movements. These resistance movement criteria are separately applicable only to the groups named in Article 4A(2) according the treaty text, the influential commentaries, and historical documents. The four criteria are expectations of State armed forces, for sure. But they are not legal requirements for collective compliance in order for members of an armed force to be given prisoner of war status and related combatant immunity.

Individually, customary international law demonstrates that a member of State armed forces who fails to fight while wearing their fixed sign (typically a uniform but not always, and not legally required) may lose prisoner of war status and concomitant combatant immunity. Nonetheless, the proper mechanism for ascertaining individual loss of status is through the GC III Article 5 military tribunal mechanism, and not through indictment in U.S. federal court.

So why is Mr. Najibullah in U.S. federal criminal court?

As to the wisdom of Department of Justice’s prosecution of Mr. Najibullah for decade-and-a-half-old claims of lawful wartime conduct, it’s relevant to review some background. Mr. Najibullah did not come into U.S. custody until the fall of 2020, when he suddenly, and it must be said strangely, surfaced in Ukraine and was promptly transferred to U.S. agents. If this timing strikes the reader as odd, it should.

More than half a year earlier, the Trump Administration had signed a peace agreement with the Taliban, its former and at the time leading battlefield enemy in Afghanistan. Most relevant here, that peace agreement (that looked a heck of a lot like a treaty between two sovereign States despite U.S. protestations to the contrary), included “a plan to expeditiously release combat and political prisoners as a confidence building measure with the coordination and approval of all relevant sides.” So if the United States and the Taliban were releasing prisoners, why the sudden Najibullah prosecution, except that he was a sacrificial lamb for the Taliban leaders?

Surely there are many Taliban fighters accused of horrific war crimes, as opposed to the otherwise lawful acts of war Mr. Najibullah is primarily charged with. These include the current deputy leader of Afghanistan, Sirajuddin Haqqani, whom the United States has classified as a “Specially Designated Global Terrorist” for his alleged involvement in terrorist acts (such as a 2008 attack against a Kabul hotel that killed civilians, including an American) and Mr. Haqqani due to his alleged involvement as the lead captor of U.S. New York Times journalist David Rhodes. Because Haqqani was one of the most powerful leaders of the Taliban in 2020 and is now that State’s apparent number two leader, it seems it was far easier for the Taliban to give a concession to the United States in the form of Mr. Najibullah, given the United States’ 2014 indictment alleging that Mr. Najibullah was involved (alongside Mr. Haqqani) in the Rhodes kidnapping.

As a final side point, despite its Orwellian title, the Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America, the “Doha Agreement” as it became known, represents a U.S. admission that the Taliban represented then, and now, the ruling government of the sovereign State of Afghanistan. Tellingly, the U.S.-installed government in Kabul at the time of the Doha Agreement was not party to that agreement.

Concluding Thoughts

States remain international law’s primary subject of regulation and its leading architect. The current U.S. federal criminal prosecution in United States vs. Najibullah implicates the intersection of: (1) States’ understandable but at times clumsy efforts to preserve the essential character of the international order as made up of like-minded States willing to play the worthy game of international law; with (2) the conflict classification methodology mandated by the law of armed conflict (IHL); with (3) States’ willingness to manipulate the latter in an attempt to affect the former.

This case, currently playing out in the Southern District of New York, also hints at how casually States—and not just China and Russia but also the United States—are willing to weaken international law through hypocritical and delegitimizing applications of that law. Or, and perhaps worse, this case demonstrates ignorance by our federal government of the broader delegitimizing effect of its narrow pursuit of a political agenda through novel uses of federal criminal law. Either way, the current U.S. federal criminal prosecution of Mr. Najibullah for this Taliban commander’s lawful acts of war almost two decades ago in Afghanistan (kidnapping charges aside), calls into question good national security policy-making, the proper and efficient use of U.S. federal criminal law, and consistent, good-faith U.S. fidelity to international humanitarian law.

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Rachel E. VanLandingham is the Irwin R. Buchalter Professor of Law at Southwestern Law School, Los Angeles.

 

 

 

 

 

Photo credit: Voice of America News