United States v. Najibullah Symposium – The Ruling

Editors’ note: This post is part of a 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.

On Friday, 1 November 2024, U.S. District Judge Kathrine Polk Failla denied a defense motion to dismiss charges on the basis of combatant immunity in the case of United States v. Najibullah. To date our Articles of War symposium related to the case includes: an introduction to the case, its charges, and the defense motion; a post by Professor Chris Jenks, an expert for the United States, who outlined the prosecution’s theory for rejecting Najibullah’s claim to combatant immunity; and a post by Professor Rachel VanLandingham, an expert for Najibullah, who explained the defense’s case for Najibullah’s status as a prisoner of war entitled to combatant immunity.

This post briefly summarizes the ruling. A transcript of Judge Failla’s oral decision is available here.

The Ruling

In ruling to reject Najibullah’s claim of combatant immunity, Judge Failla adopted the arguments of the government and Professor Jenks nearly wholesale. In a brief historical section, she conceded that at their outset in 2001, hostilities between the United States and other States on one hand and the Taliban on the other amounted to an international armed conflict (p. 10). She also conceded that, although its fighting capacity and control over Afghan territory reduced over time, the Taliban never surrendered or relinquished its claim to be the government of Afghanistan.

She concluded, however, that “certainly before 2008, and perhaps as early as the summer of 2002,” those hostilities had transformed from an international armed conflict between States party to the Geneva Conventions to a non-international armed conflict between a coalition of States and an insurgent Taliban group (p. 17). She cited the December 2001 Bonn conference establishing an internationally approved interim Afghan government, the Afghans’ own loya jirga process, and elections in 2004 and 2009 as strong evidence that the Taliban had been displaced and reduced to an insurgent organization (p. 11-12).

She also cited with approval several secondary sources cited by the government, including prior U.S. federal court decisions, executive branch statements, academic work, and communications by the International Committee of the Red Cross which concluded the conflict was non-international in character by 2002 (p. 8). Her ruling also gave “significant persuasive weight” to conflict classification views expressed in the latter’s Commentaries on the Third Geneva Convention, both the original 1960 Pictet edition and the 2020 updated Commentary (p. 8). She noted especially a degree of “objectivity” in those writings. Although Professor Jenks offered a persuasive qualitative distinction between these two works, which I have also offered at length, Judge Failla declined to adopt that distinction in this case (p. 4).

Addressing other academic work on conflict classification, Judge Failla rejected a 2015 argument by Professor Jordan Paust that non-international armed conflicts could not feature cross-border incidents (p. 9). Law of war practitioners and specialists will identify this aspect of the ruling as an endorsement of the view that non-international armed conflicts need not be confined to the borders of a single State to qualify as such.

Nonetheless, Judge Failla acknowledged disagreement concerning precisely when a conflict transitions from being international in character to being non-international (p. 12). No doubt, had Najibullah’s charges stemmed from fighting nearer to 2002, the court would have had greater difficulty with the conflict transition question.

Judge Failla addressed other theories of conflict classification as well. She quickly considered belligerent occupation as a basis for applying the Geneva Conventions in the case. Common Article 2 identifies international armed conflict as well as “cases of partial or total occupation of the territory of a High Contracting Party” as bases for application of the Conventions. Thus, prisoner of war status and the customary immunity afforded to combatant classes of prisoners of war remain available in conditions of belligerent occupation. However, Judge Failla summarily rejected claims that the United States was at any time a belligerent occupant of Afghanistan (p. 18). She determined the United States never exercised “government functions” in Afghanistan. The unqualified nature of her determination likely indicates she regarded this as true even during later phases of the invasion during which U.S. forces operated extensively on Afghan territory but prior to full investiture of the new Afghan government.

Her ruling also briefly addressed the final passage of common Article 2, which provides for the application of the Conventions in situations when “one of the Powers in conflict may not be a party to the present Convention.” While to some eyes, this provision may offer promise to a displaced regime or other organization that fails to meet the State party requirement of application, Judge Failla limited operation of this provision to the situation of a State that has not ratified or acceded to the Conventions. She considered that provision moot in light of the universal ratification or accession to the 1949 Geneva Conventions.

Judge Failla also rejected a defense theory that the conflict in Afghanistan retained its international character in light of U.S. operations in the territory of neighboring Pakistan to root out Taliban fighters. Although she acknowledged an “uneasy” relationship between the United States and Pakistan, she characterized the situation as one of “support” rather than conflict in light of the extensive material and other assistance the United States provided to the latter’s government (p. 23). She instead considered U.S. operations in Pakistan as a “spillover” of the Afghan non-international armed conflict rather than part of a conflict that was international in character (p. 24).

In an interesting procedural matter, Judge Failla assumed, though without deciding, that the government bore the burden of disproving Najibullah’s entitlement to combatant immunity. The government had argued that Najubullah’s claim of combatant status and immunity was an affirmative defense that must be proved by his team. Although her ruling is ambiguous on this point, it is remotely possible that law of war presumptions concerning applicability of prisoner of war protections, such as that found in Article 5 of the Third Convention (or more remotely Article 45 of Additional Protocol I to the Conventions), although not operative in a de jure sense, nudged her toward that approach.

As the conflict was non-international in character during the period covered by the charges, Judge Failla concluded that the international legal protections applicable to Najibullah are to be found in common Article 3 of the 1949 Geneva Conventions rather than the Conventions as a whole. Common Article 3 includes a wide range of humanitarian protections for persons not taking an active part in hostilities. However, it does not offer any status or protection that forms the basis of combatant immunity for either party to a non-international armed conflict, an issue I have addressed in detail here.

Finally, and perhaps not surprisingly in light of her classification of the conflict, Judge Failla declined to address defense arguments that Najibullah qualified as a prisoner of war under any of the categories of Article 4 of the Third Geneva Convention (p. 9-10). She correctly noted that prisoner of war status is not available in non-international armed conflicts. Her ruling thus leaves questions of prisoner of war qualification, such as whether members of regular armed forces must comply with conditions enumerated by the Third Convention for militias and volunteer corps belonging to a State but which do not form part of their regular forces, largely unaddressed by U.S. federal courts.

Concluding Thoughts

Determinations whether a situation of violence amounts to an international or non-international armed conflict or whether it qualifies as an armed conflict at all, can seem like arbitrary, even artificial technicalities. The unspeakable horrors, intense suffering, and lasting damage the law of war seeks to mitigate are not confined to any particular form of violence. Nonetheless, the Najibullah ruling illustrates the enduring importance of law of war conflict classification in both legal and human terms. Far more than abstract legal designations, international law classifications of armed conflicts have profound practical implications for the conduct of hostilities as well as for the individuals who take part or are caught up in them. The ruling also reminds us of the enduring character of legal policy decisions made in the heat of conflict which can resurface long after those conflicts conclude.

As for the procedural posture of the case, the ruling appeared to clear the way for trial on the charges. However, the Najibullah defense team has now filed an interlocutory appeal to the U.S. Court of Appeals for the Second Circuit available here. Look for continued coverage of this important case on Articles of War.

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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: Abdulbasir Ilgor (VOA)