United States v. Najibullah Symposium – Taliban Combatant Immunity in Non-International Armed Conflict

by | Oct 4, 2024

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.

The purpose of the law of war hearing in United States v. Najibullah was to assist the court in determining whether the Defendant, a captured member of the Taliban, was entitled to combatant immunity for allegedly killing three U.S. Army noncommissioned officers during a 2008 attack on a U.S. convoy in Afghanistan.

The hearing focused on two articles from the Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III): Article 2, or the scope of GCIII’s application to the armed conflict in Afghanistan as of 2008; and Article 4, or whether, at that same time, the Taliban qualified for prisoner of war (POW) status.

While litigating POW status in federal courts is not unprecedented, it is unusual. To that end, I offer this review of my experience testifying for two primary reasons. First, to inform those unfamiliar with the case about the interesting issues addressed. Second, and perhaps more importantly, to contribute to an understanding of the law and facts related to the armed conflict in Afghanistan that will produce a more efficient and ideally summary dismissal of combatant immunity claims for defendants like Najibullah in the future.

I appreciate the opportunity to participate in this symposium. The views expressed here are an attempt to explain aspects of the public hearing, at which I testified as part of my official duties. To the extent this commentary adds opinions not reflected in the transcript, those do not necessarily reflect the views or positions of the Government, the U.S. Army, or the U.S. Department of Defense, and should be considered made in my personal, academic, capacity.

Hearing Tactics

The Prosecution (Government) and Defense approached the law of war hearing in appreciably different ways. The Government used an evidence-based approach involving two witnesses—an intelligence expert and me—to contextualize a series of documents admitted into evidence. Among these was a letter from the Legal Adviser for the International Committee of the Red Cross (ICRC) explaining the ICRC’s view that in June 2002, the international armed conflict (IAC) in Afghanistan transitioned to a non-international armed conflict (NIAC). The documents also included the Taliban’s “Code of Conduct,” which directed Taliban fighters to commit serious law of war violations, including executing prisoners and perfidy.

The Defense employed a mixed fact and argument approach via their expert witness. They questioned the ICRC letter and claimed that by 2020, the Taliban controlled Afghanistan while being under the overall control of Pakistan, which in turn had been in a 20-year IAC with the United States (transcript, p. 179-188). The Defense expert further contended that the Taliban generally followed the law of war and thereby satisfied the requirements for POW qualification (transcript, p. 207).

Legal Landscape

This case, like most if not all cases, is part of a legal landscape a court views through a multifaceted lens. Before further explaining the Government’s approach, I want to highlight and briefly explain two such facets.

The first involves the precedents from Afghanistan, the United States, and Europe for prosecuting the Taliban for murder offenses on the battlefield. The second is that while the law of war analysis in the Taliban combatant immunity cases is seemingly dispositive and quickly ends the inquiry, there may be other factors or doctrines informing a court’s decision-making process.

Prosecuting an unprivileged belligerent for the murder of a privileged belligerent, even on the battlefield, is not unprecedented. Precedent is entirely on the side of the Government in this case. Members of the Taliban have been convicted—primarily in Afghanistan, but also in the United States and in Europe—for murder offenses where security forces and service members were the victims. Between 2002 and 2021, the Islamic Republic of Afghanistan prosecuted thousands of Taliban fighters for various belligerent acts, including murder, committed during the NIAC in that country.

While that accounts for most prosecutions, there have been other cases in civilian courts in the United States, Germany, and the United Kingdom where Taliban members were prosecuted for murder, attempted murder, and conspiring to commit violence planned and/or directed against U.S. and coalition troops on the battlefield. The cases include:

– United States v. Hamidullin (involving the attempted murder of U.S. military in Afghanistan);

– United States v. Lindh (involving a conspiracy to murder U.S. military in Afghanistan);

– Abdol Moghadas (involving the attempted murder of U.S. military in Afghanistan); and

– Khalid Ali (involving manufactured improvised explosive devices used to wound and kill coalition troops in Afghanistan).

There are other cases in which U.S. civilian courts have considered and denied other combatant immunity claims (see, e.g., United States v. Harcevic; United States v. Hausa; United States v. Pineda; United States v. Arnaout; and United States v. Noriega). And there have also been at least three other Taliban prosecutions in Germany: the Abdullah S.K. case, the Omaid N. case, and the Abdullah P. case. The final disposition of these cases is unclear, but publicly available information does not mention combatant immunity.

It is entirely possible, even likely, that some of these cases involved acts that, if engaged in by individuals qualifying for POW status, would have fallen within the scope of combatant immunity. That these cases proceeded to judgment is a manifestation of the difference between privileged and unprivileged belligerents in terms of using force that comports with the requirements of the laws of war: the former are protected by combatant immunity while the latter never are.

To date, no Taliban case has yielded a ruling applying combatant immunity. My research has not found a single case where any court, anywhere, has recognized Taliban entitlement to POW status and the accordant combatant immunity. During the hearing, the Defense expert acknowledged they were unaware of any such recognition (transcript, p. 215).

More Than Law of War Analysis

While law of war analysis in these cases is obviously important, a court resolving a Taliban combatant immunity claim should avoid unnecessarily considering POW qualification. Accordingly, assessing the nature of the alleged armed conflict must be the first step.

If the law classifies the conflict at the time of the alleged crimes as a NIAC, there cannot be POW status or combatant immunity. Under these circumstances, it would be superfluous to address the GC III, Article 4 POW categories and qualifications. Nonetheless, where a court believes that separation of powers concerns may preclude a judicial conflict classification determination, the court may need to assess Article 4 applicability, even when the law of war would not otherwise require it. Or perhaps a court may feel compelled to address the POW qualification issue even while determining the inapplicability of Article 4 to ensure a sufficient record should the defendant choose to appeal or request reconsideration of an adverse ruling.

As a result, both sides may need to address conflict classification under Article 2 of GC III and POW status qualification pursuant to Article 4, regardless of the answer to the Article 2 question. What follows are highlights from the different approaches (first the Government’s, then the Defense’s) as applied to these two issues.

GC III Article 2 Conflict Classification

From the Government’s perspective, the conflict’s classification decisively answered the question of combatant immunity. Potential determination of POW status and with it, combatant immunity, requires the existence of an IAC under Article 2. Only an IAC triggers the application of the entirety of GC III, including Article 4, which addresses POW status. If, by contrast, the conflict falls under the scope of Article 3 GC III (NIAC), it is textually and legally impossible to reach the POW qualification provisions of Article 4.

In 2008, the timeframe of Najibullah’s alleged offenses, both the Government and Defense conceded there was an armed conflict in Afghanistan. However, the Government argued the conflict was “not of an international character” and therefore fell within the scope of GC III, Article 3, not Article 2. As a result, the Defendant could not legally qualify as a POW and enjoy combatant immunity.

I explained to the court that three paragraphs comprise Article 2, and that while each paragraph lays out a potential trigger for an IAC, the conflict in Afghanistan in 2008 did not satisfy the conditions for any of them. Article 2(1) implicates GC III in cases of armed conflict between two or more High Contracting Parties. By 2008, the Karzai Government—not the Taliban—represented Afghanistan. The armed conflict existed between the Karzai Government (Islamic Republic of Afghanistan) (alongside over 42 other State members of the International Security Assistance Force (ISAF)), and the Taliban, a non-State entity.

The Defense expert admitted that not one of the ISAF member States classified the armed conflict in Afghanistan in 2008 as an IAC (transcript, p. 216). And so argued the Government, because no armed conflict between two or more High Contracting Parties existed in 2008, Article 2(1) did not apply.

Nonetheless, the Defense offered two arguments why Article 2(1) applied. First, they argued the IAC, which began in 2002, had not ended because the Taliban never relinquished its claim to being the Government of Afghanistan and the Geneva Conventions did not envision conflict classification changing (transcript, p. 182-184). The Defense further stressed that in 2020, the United States negotiated solely with the Taliban and not with the Islamic Republic of Afghanistan (at that point headed by President Ashraf Ghani) (transcript, p. 179). The Defense viewed this as “de facto acknowledgment and recognition by the United States that the Taliban had control over Afghanistan.”

What relevance the United States’ actions in 2020 have on the classification of a conflict in 2008 remains unclear. Additionally, the claim the Taliban had control over Afghanistan clashed with the Defense’s second Article 2(1) argument, that the Taliban was under the overall control of Pakistan and that a 20-year IAC existed between two States, to wit: Pakistan and the United States (transcript, p. 182, 225 respectively).

The Defense mentioned an “overall control” test from the International Criminal Tribunal for the former Yugoslavia case Prosecutor v. Tadić, but not its elements (transcript, p. 227). Despite some discussion of potentially relevant facts, no party introduced evidence in support of this IAC argument. The Defense furthermore acknowledged that neither the U.S. Embassy in Pakistan nor Pakistan’s Embassy in the United States closed in the 20 years the two countries were allegedly at war, and that the United States had provided $32 billion in aid to Pakistan during that period (transcript, p. 226-228).

Second, the Defense argued Article 2(2) activates GC III in cases of occupation. I explained that under Article 42 of the 1907 Hague Convention, “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army.” A foreign army having “boots on the ground” does not automatically make them a “hostile army.” In 2008, 42 foreign armies, at the request of the Karzai Government via the Bonn Agreement Annex 1, operated in Afghanistan as part of ISAF. None of these armies were “hostile” to the Karzai Government and their authority did not extend over the territory of Afghanistan. For these reasons, no occupation existed that would implicate Article 2(2). The Defense listed partial occupation as another reason the armed conflict in Afghanistan in 2008 qualified as an IAC, but never explained or supported that contention (transcript, p. 182).

Lastly with respect to GC III application conditions, Article 2(3) addresses States that are party to the armed conflict but not party to the 1949 Geneva Conventions. A moot provision, Article 2(3) envisioned, like every prior armed conflict including the Second World War, States participating in the conflict that had agreed to be bound by the most recent Geneva Conventions, and States that had not. However, every UN member State has ratified the 1949 Conventions, so Article 2(3) serves no role, either generally or in the hearing.

Having explained what the armed conflict in Afghanistan in 2008 was not, the Government shifted to what it was: a NIAC. In support of that argument, I explained a series of conflict classification statements by: the ICRC in 2002, 2007, and 2011; a UN Special Rapporteur in 2009; and the White House in 2016 (transcript, p. 21-23, 40-43). Each of these statements classified the armed conflict in Afghanistan after mid-2002 as a NIAC.

The 2002 ICRC letter proved to be most useful. The statement from the ICRC Legal Advisor to the UK Parliament explained the ICRC’s view that, effective June 19, 2002, the IAC in Afghanistan transitioned to a NIAC and, with that, only Article 3 of GC III still applied.

The Defense expert disagreed, not only characterizing the ICRC’s classifying the conflict as a NIAC effective as of 2002 as inaccurate, but even accusing the ICRC of having sent the letter knowing its inaccuracy. The ICRC had purportedly made a “pragmatic choice” of knowingly taking an incorrect legal position to ensure access to detainees (transcript, p. 189). The court interpreted that testimony as meaning the ICRC had “bent their own standards” out of a willingness to “forego their principles just to have access to detainees” (transcript, p. 189).

That the ICRC Legal Advisor would intentionally misstate a legal position—in writing—to a State’s legislative body is facially problematic. However, what is more troubling is that it is oxymoronic. Assuming arguendo that the ICRC Legal Advisor abandoned intellectual and analytical integrity, among other principles, in the name of humanitarian protection, the alleged fabrication makes no sense. If the ICRC’s motive for such fabrication was to advance humanitarian protection, they would have asserted the existence of an ongoing IAC, triggering the entirety of the 1949 Geneva Conventions and associated protections, especially those afforded to POWs. Why this motive would have led to asserting the existence of an armed conflict triggering far more limited protections is perplexing and rebuts the assertion of such fabrication.

Ultimately, the Defense did not address the conflict classification statements from the 2007 or 2011 ICRC Reports, the 2009 Special Rapporteur Report, or the 2016 White House Report.

GC III Article 4 POW Categories and Qualification

From my perspective, the only POW category which the 2008 Taliban could potentially satisfy is that contemplated by Article 4A(3): “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” The operative words here, however, are “could potentially”; to be clear, the Taliban in 2008 did not meet the requirements of Article 4A(3).

I first discussed the Article 4A(3) requirements as considered in Jean Pictet’s original Commentary to GC III, published in 1960, ten years after the Convention entered force. The requirements include that the armed forces wear uniforms, have an organized hierarchy, and know and respect the laws and customs of war. Per Pictet, while not required, recognition by third States is “consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle.”

I then related portions of portions of a 1947 ICRC Report on its work during the Second World War (transcript, p. 56). The report documented how De Gaulle’s Free French complied with the uniform, hierarchy, and law of war requirements. Next, I explained that a number of third States recognized the French government in exile (transcript, p. 55).

While the Article 4A(3) requirement is to wear a uniform, the Government’s intelligence expert in the hearing explained that the Taliban’s “Code of Conduct” instructed fighters to not wear uniforms, to blend in with and be indistinguishable from the civilian population (transcript, p. 120). He told the court this was to facilitate Taliban fighters being able to approach targets without being detected.

The Defense expert spoke in terms not of a uniform, but of the GC III, Article 4A(2) requirement of a “fixed distinctive sign recognizable at a distance.” On this point, they indicated that there were reports the Taliban wore black turbans (transcript, p. 206). The Government’s intelligence expert had acknowledged that the Taliban wore black turbans in parts of Afghanistan, not to distinguish themselves, but to blend in with the civilian population who had made the “fashion choice” to wear black turbans (transcript, p. 131). Ultimately, according to the intelligence expert, there was no way to differentiate the Taliban from the civilian population.

The Government’s intelligence expert also explained how the Taliban “Code of Conduct” directed when its fighters could kill or kidnap civilians who performed support functions for the Karzai government or coalition forces, the use of “suicide bombers,” beheading and/or dismembering captured Afghan troops and police, burn schools, and damage or destroy infrastructure projects. The intelligence expert could furthermore not recall a single example of the Taliban taking any action to discipline its members for mistreatment of prisoners (transcript, p. 125). Still, the Defense expert indicated they could look back on 20 years of military engagement with the Taliban and say the Taliban’s actions in that time were largely consistent with the laws and customs of war (transcript, p. 207).

Finally, the intelligence expert and I both further testified that after 2002, no third State recognized the Taliban as the Afghan government-in-exile (or as the Afghanistan government, de facto or de jure) (transcript, p. 37, 104).

Conclusion

When litigants solicit expert opinions on law of war interpretations, that foundation is the law itself: its origins; its widely accepted understandings; and its application to a particular context. While much of the law of war has evolved over time—especially the extent to which it regulates NIAC—certain bedrock foundations remain. Among these is the two-part requirement for POW qualification and legitimate claims to combatant immunity: first, that the alleged criminal misconduct occurred in the context of an IAC; and second, that the individual asserting combatant immunity meets POW qualification.

Innovative theories of legal interpretation do not and should not erode this bedrock. While there may be those who see the extension of POW status to non-State armed groups or illicit organizations like the Taliban as laudable advancements in the law, courts should decide cases based on lex lata, not on (what some regard as) lex ferenda.

It remains my unqualified opinion that lex lata demands denial of combatant immunity to Najibullah. Indeed, because both objective facts and the overwhelming weight of expert interpretation indicate the armed conflict in Afghanistan in 2008 was a NIAC, there really is no genuine issue of POW status and combatant immunity. Ideally, the court will resolve this motion based solely on that ground. However, even if, for whatever reason, the inquiry reaches Article 4, the claim is equally meritless, as the Taliban did not come remotely close to meeting the requirements for POW status.

***

Chris Jenks is the Senior Law of War Advisor to The Judge Advocate General of the United States Army in the Pentagon. He is also a Professor of Law affiliated with the SMU Dedman School of Law in Dallas, Texas.

 

 

 

 

Photo credit: Isafmedia

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