United States v. Najibullah Symposium – Introduction
Almost as soon as hostilities between the United States and the Taliban and al Qaeda groups in Afghanistan began in 2001, important law of war questions emerged. In particular, early stages of the conflict provoked debate concerning its legal character. The question whether the situation involved a single international armed conflict to which the 1949 Geneva Conventions applied or whether it instead comprised two separate conflicts, one international in character against the Taliban and another, non-international in character against al-Qaeda, proved particularly thorny.
These questions persisted as the military and political situation in Afghanistan evolved. When coalition operations largely eliminated the Taliban’s capacity to govern and as an internationally agreed to replacement regime took power, the question whether the conflict with the Taliban remained international in character, or whether it had morphed into a non-international armed conflict occupied government officials, scholars, and humanitarian organizations and filled the pages of law of war journals and texts.
While conflict classification is an essential and fundamental stage of law of war analysis, it is merely a legal means to resolve less abstract questions relating to law of war protection afforded to captives and other victims of war. The pinnacles of law of war protected status—the Third Geneva Convention’s prisoner of war status and the Fourth Geneva Convention’s protected person status—are only available in international armed conflicts. Conflict characterization thus performs a critical gatekeeping function for the Conventions’ humanitarian protections and other customary immunities. Heightened treatment standards, access to humanitarian assistance, and, for prisoners of war, immunity from prosecution for otherwise lawful participation in hostilities are important benefits of protected status under the Conventions.
However, determinations of law of war status involve their own, thorny doctrinal debates. While the Third Convention devotes significant space to identifying groups whose members enjoy prisoner of war status, questions of interpretation remain concerning exactly who is a prisoner of war. Among other questions raised is the extent to which criteria required for certain militia and volunteer organizations to qualify for prisoner of war status also apply to the Taliban, including responsible command, displaying visible insignia, carrying arms openly, and law of war adherence.
These issues featured prominently, and quite publicly, as coalition forces captured Taliban fighters from late 2001 onward. Despite reluctantly concluding that the conflict against the Taliban could be qualified as international in character, the United States made early determinations that no member of the Taliban qualified as a prisoner of war. Competing views soon emerged from other corners of the law of war community and have persisted to date, including in an updated International Committee of the Red Cross Commentary to the Third Geneva Convention, and a book-length work it inspired.
United States v. Najibullah
Those debates, both concerning conflict classification and prisoner of war status, reignited recently in the United States District Court for the Southern District of New York. According to an indictment in United States v. Najibullah,
On or about 26 June, 2008, Taliban fighters under Najibullah’s command attacked a U.S. military convoy in the vicinity of Sayed Abad, Wardak Province, Afghanistan, with IEDs, RPGs, and automatic weapons …, killing three U.S. Army servicemembers, Sergeants First Class Matthew L. Hilton and Joseph A. McKay, and Sergeant Mark Palmateer, and their Afghan interpreter … .
Captured later in Ukraine and transferred to the United States in 2020, Najibullah is charged with murder and other offenses related to his participation in hostilities in Afghanistan. He has pleaded not guilty and his lawyers have moved to dismiss the charges. They allege Najibullah is properly classified as a captured prisoner of war and, as a combatant, is entitled to immunity from prosecution for his participation in hostilities.
On 8 August, to aid her ruling on the motion, the judge in the case heard expert testimony on classification of the conflict in Afghanistan in 2008 and Najibullah’s eligibility for prisoner of war status. Attorneys for the United States called Professor Chris Jenks, a retired U.S. Army judge advocate, Research Professor of Law at the SMU Dedman School of Law, and currently Senior Law Advisor to the Army Judge Advocate General. They also called an intelligence expert. Meanwhile, attorneys for Najibullah called Professor Rachel VanLandingham, a retired U.S. Air Force judge advocate and the Irwin R. Buchalter Professor of Law at Southwestern Law School. Both experts have deep experience with the subject and theater of operations and gave extensive testimony.
We have posted the transcript of the hearing here. But we have also organized this short symposium, offering both Professor Jenks and VanLandingham an opportunity to present their views on these important and persistent law of war questions.
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Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.
Photo credit: Isafmedia
