From June 25-27, 2008, the Naval War College held an Experts Workshop in McCarty Little Hall’s Decision Support Center entitled The War in Afghanistan: A Legal Analysis. The workshop was hosted by the War College’s International Law Department of the Center for Naval Warfare Studies and made possible with the generous support of the Naval War College Foundation and the Israel Yearbook on Human Rights. The workshop consisted of five panel discussions and three keynote addresses each covering legal dimensions of the conflict. Papers from the keynote speakers and conference participants will be published in volume 85 of the Naval War College’s International Law Studies Blue Book series. Professor Michael Schmitt, the Stockton Professor of International Law, and Major Michael Carsten, USMC, coordinated the workshop.
The workshop’s first panel, on “The Legal Basis for Military Operations,” consisted of a Royal Navy officer and scholars from the US, UK and Germany, who discussed the possible legal bases for the use of force in Afghanistan: self-defense pursuant to Article 51 of the UN Charter; the implementation of specific UN mandates; the consent of the Afghan government; and, at the tactical level, individual and unit self-defense. There was considerable debate about the legal categorization of the conflict. Did an international armed conflict become non-international, for instance, upon the assumption of power by the Karzai government? How does the legal basis for the UN-mandated ISAF forces differ from that of non-ISAF, US forces fighting under Operation Enduring Freedom (OEF)? Cross-border operations across the famously porous and uncontrolled Afghan-Pakistani border, the 1893 “Durand Line”, dominated much of the discussion. Possible legal bases for such operations include localized self-defense from actual or imminent attack and consent by Pakistan. But are coalition forces legally entitled to interfere with third countries’ navigation and aviation outside Afghanistan? Possibly not if the conflict is solely a non-international armed conflict; but perhaps so for Security Council-backed efforts like counter-terrorism, counter-proliferation, and ISAF itself.
The workshop participants attended an Officer’s Club luncheon address by Professor W. Michael Reisman of Yale Law School, who spoke on “The Influence of the Conflict in Afghanistan on International Law.” Professor Reisman provided insight on the pre-9/11 background to the current conflict and observed that the immediate post-9/11 Security Council resolutions were more limited in scope than is commonly supposed. Professor Reisman offered a few lessons that could be learned from the conflict in Afghanistan. First, the slow process of fine-tuning UN Security Council Resolutions will likely not delay states from acting unilaterally in self-defense or responding to immediate threats. Second, in the international arena, a narrow focus – military action against a noxious actor rather than regime change -- will be preferred. Finally, while anticipatory interdictions across a state’s borders have been occurring on the Afghan frontier and elsewhere, and may receive formal condemnation, condemnation will only be meaningful if an operation is unnecessary, disproportionate, and lacks adequate distinction.
The second panel, the first of two on the “Conduct of Hostilities” was composed of senior US judge advocates from the Army, Navy, Air Force, and Marines and opened with the sobering observation that 2007 was the deadliest year so far for US forces in Afghanistan. Command and control issues for both ISAF and OEF ground forces have proven complex, especially in light of national caveats and concern over collateral damage. Air support to ground forces, as well as combined maritime forces operating in the region, must also comprehend and deconflict national caveats in the context of ISAF and non-ISAF operations.
The workshop’s second day opened with the third panel, which revisited the “Conduct of Hostilities.” US academic and government experts debated whether it is helpful to speak of a distinct “transnational armed conflict” with respect to the fight with al Qaeda, as well as the problem of a state asserting the authority of “war” without accepting all associated obligations. Conflict with irregular fighters is nothing new, nor is analysis of their combatant privilege. According to Francis Lieber, “partisans” enjoyed the privilege inasmuch as they formally associated with a government’s military, whereas “guerrillas” were unprivileged, self-constituted, independent actors. This reasoning is reflected in the Third Geneva Convention’s legitimization of only state-authorized resistance or insurgent groups. Nonetheless, the counterinsurgency effort in Afghanistan and the great adversity to civilian casualties means targeting is much more limited by policy restrictions than traditional legal analysis. The humanitarian requirements for “persuasive warfare” are narrower than applicable legal requirements.
Professor Sir Adam Roberts then addressed the workshop on “The Influence of Afghanistan on International Security.” Professor Roberts related that the conflict demonstrates that the right of national self-defense against a non-state actor is a legal possibility, but perhaps only as an exception to the rule. International legitimacy, however, is never a substitute for local legitimacy, the metrics for which can be elusive. One telling measure of success is that four million Afghans have returned to the country since 2001, but deep uncertainty remains. The conflict has provided at least two lessons: “state-building” is difficult, slow, and usually thankless; and restraint in the use of armed force can be very valuable in preventing US and coalition forces from being perceived as alien bodies in the country.
The fourth panel convened to discuss “Detention Operations and Interrogation” with panelists from leading US law schools and the ICRC. Panelists observed that US baseline treatment for detainees has been clarified, especially by the Hamdan decision, but procedure still eludes consensus and many coalition partners in Afghanistan have opted-out of detention operations. In addition to Hamdan, the US has wrestled with the issue in the Detainee Treatment Act, the Military Commissions Act, amendments to the War Crimes Act, revisions to the relevant Army Field Manual, and President Bush’s Executive Order 13440. The ICRC urges that applicable standards can be inferred from conflict status and that an international armed conflict was supplanted by a noninternational armed conflict with the June 2002 loya jirga and subsequent UN recognition. Lastly there was discussion that force-feeding of detainees on hunger strikes ironically might run afoul of certain international standards that may prohibit such action even to save a detainee’s life.
In the fifth and final panel, on “Stability Operations,” a panelist from the US Department of State, the Canadian Judge Advocate General, and a UK scholar explored when Human Rights Law may interact with, complement, or possibly supplant the Law of Armed Conflict. There are myriad issues with Human Rights Law: for instance, its territorial application, and its use to “fill gaps” discerned in other legal regimes. These gaps may be partially attributed to the fact that the notion of state-on-state conflict predominated LOAC development, but historically “stability operations” are actually more common and more complex.
The workshop closed with an address by Professor Yoram Dinstein, Tel-Aviv University, on “Lessons to Be Learned.” Professor Dinstein observed that the term “War on Terror” is best viewed as a metaphor, and while terrorist attacks from abroad are armed attacks, internal attacks are law enforcement matters. The Taliban acquired responsibility for 9/11 by allowing their al Qaeda associates to use Afghan territory; and the fight with the Taliban in Afghanistan was an international armed conflict and will continue to be so until the Taliban cease fighting. Even assuming, arguendo, that the conflict is noninternational, the jus in bello remains the same, except that neutrality, belligerent occupation, and POW status are inapplicable concepts in non-international armed conflict. Certainly there are legal “gaps” to be filled, but scholars ultimately do not create international law; the practice of states does this, and states are conservative.