APPENDIX 2
Memorandum submitted by Professor Adam
Roberts, Balliol College, Oxford
APPLICATION OF
LAWS OF
WAR
1. My job is Montague Burton Professor of
International Relations at Oxford University. I have written extensively
on the laws of war, on strategic issues, on terrorism, and on
wars and military occupations in the Middle East. My principal
publication relevant to this memorandum is (co-edited with Richard
Guelff), Documents on the Laws of War, 3rd edition, Oxford University
Press, 2000. In this memo I refer briefly to two newspaper articles
that I have written during this crisis, in order to indicate how
the particular issues addressed here were seen as events unfolded.
2. This memorandum is a short examination
of one limited and specialised aspect of ongoing events: the application
of the laws of war, with particular reference to the hostilities
in Afghanistan. An issue raised in the memo is the impact of laws
of war issues on the maintenance of the International Coalition
of states engaged in or supporting the war against terrorism.
The main question addressed is the extent to which the UK government
generally, and the FCO and Defence Ministry in particular, have
worked to ensure observance of basic standards by the Coalition
in this unusually complex war.
3. The International Coalition of states
engaged in the overall campaign against terrorism has an unusual
character. Its membership does not appear to be precisely defined,
and the contributions of many of its members to the actual conduct
of military operations in Afghanistan (as distinct from the many
other areas of activity involved in this campaign) has been limited.
None the less, the maintenance of the International Coalition
is important for the campaign against terrorism, for a variety
of military and political reasons which need no elaboration here.
4. For centuries the laws of war (today
sometimes called "international humanitarian law applicable
in armed conflict") have had an important function in the
policies and practices of international coalitions engaged in
military operations. Although in strict legal terms there is no
direct connection between the law relating to the resort to force
(jus ad bellum) and the law governing the use of force in war
(jus in bello), there are certain ways in which these two bodies
of law interact in practice. A perception that the states involved
in a coalition are observing basic international standards may
contribute to public support for military operations within the
member states; support (or at least tacit consent) from other
states for coalition operations; and avoidance of disputes within
and between coalition member states. In short, there can be strong
prudential considerations (not necessarily dependent on reciprocity
in observance of the law by all the parties to a war) which militate
in favour of observing the laws of war. The 1991 Gulf War and
the 1999 Kosovo War confirmed the utility of having common standards
in certain basic matters: treatment of captured personnel; protection
of civilians; humanitarian assistance; policy towards neutral
countries, individuals and trade; and prosecution of alleged war
criminals.
5. In wars in Afghanistan over the centuries,
observance of the laws of war has been limited. Some local customs
in certain matters are consistent with international legal provisions.
Other customs are different from what is envisaged in the conventions,
but not necessarily a violation of them: an example of this is
the practice of soldiers of the defeated side not to be taken
prisoner, but to join the forces of their adversary. However,
taken overall, there has not been a high level of compliance.
Guerrilla warfare, which was already endemic in Afghanistan in
the nineteenth century, notoriously makes it difficult to observe
the distinction between soldier and civilian which is at the heart
of the laws of war. To the extent that wars in Afghanistan have
been and remain civil wars, fewer rules are formally applicable
to them than to inter-state wars.
6. On the technical legal question of which
of the main laws of war treaties are formally binding on the belligerents,
Afghanistan is a party to the 1925 Geneva Protocol on gas and
bacteriological warfare, to the 1948 Genocide Convention, and
to the four 1949 Geneva Conventions. The main members of the Coalition
are also parties to these agreements. In addition, the 1907 Hague
Land War Convention applies because of its customary law status.
Although some of the belligerents are parties to this or that
additional agreement, the above-named agreements provide the basic
treaty framework for considering the application of the law in
this particular armed conflict. In the case of non-international
armed conflict (i.e. civil war), which is the character of certain
aspects of this war, some but not all of the provisions of these
agreements apply. The 1907 Hague Land War Convention's Article
2 indicates that it only applies between states. The 1925 Geneva
Protocol is not formally applicable. The 1948 Genocide Convention
is considered to apply to non-international as well as international
armed conflict. In the 1949 Geneva Conventions, common article
3 lists certain minimum provisions to be applied in non-international
armed conflict.
7. The wars in Afghanistan in the past two
or more decades, like many wars in many countries in the period
since 1945, have had the character of an internationalised civil
war. That is to say, they have in varying degrees involved elements
of an international war (to which the main body of the laws of
war applies) and elements of a civil war (in respect of which
there are fewer agreed international rules). The presence of significant
numbers of foreign fighters on the Taliban side, especially as
they appear to have little respect for the laws of war, further
complicates both the legal classification of the war and the application
of certain minimum rules.
8. The US armed forces have long kept open
the possibility of observing the rules governing international
armed conflicts even in situations which may differ in certain
respects from the classical model of an inter-state war. A simple
principle codified in the Standing Rules of Engagement issued
by the US Joint Chiefs of Staff on 1 October 1994 spells this
out: "US forces will always comply with the Law of Armed
Conflict. However, not all situations involving the use of force
are armed conflicts under international law . . . Law of Armed
Conflict principles may nevertheless be applied as a matter of
national policy."
9. In respect of the war, principally between
the Taliban and the Northern Alliance forces, which has been going
on in Afghanistan for many years, there have been authoritative
pronouncements calling on the parties to the conflict in Afghanistan
to comply with their obligations under international humanitarian
law. In particular, UN Security Council Resolution 1193 of 28
August 1998, passed unanimously, reaffirmed inter alia 'that all
parties to the conflict are bound to comply with their obligations
under international humanitarian law and in particular the Geneva
Conventions of 12 August 1949, and that persons who commit or
order the commission of grave breaches of the Conventions are
individually responsible in respect of such breaches.' The reference
to grave breaches would appear to suggest that the Security Council
viewed all the rules of the 1949 Geneva Conventions as applicable,
and not just common Article 3 which deals with civil war.
10. In the period between the attacks of
11 September and the start of the US bombing campaign in Afghanistan
on 7 October, when the International Coalition was being formed,
it was not difficult to foresee that implementation of the laws
of war would be a difficult problem in the military operations
then in preparation. The number of forces involved in the war
in Afghanistan, many of which have a strong regional basis, and
the lack of clear structures of authority, decision-making and
military discipline within them, were all likely to be complicating
factors so far as implementation of the laws of war was concerned.
Some of the forces involved, especially Al Qaida, had committed
and/or approved numerous acts in foreign countries which could
only be called crimes against humanity. In the USA, there was
evidence of a school of thought that in a war against brutal terrorists,
certain normal restraints and safeguards might not apply. In an
article ("Apply the Law of War in an Anti-Terror War, Too"),
published in the International Herald Tribune on 4 October 2001,
I drew attention to certain obvious issues: the need to conduct
Coalition operations discriminately; the likelihood of adversary
forces executing Coalition prisoners; and the possibility that
some captured enemy personnel might not qualify for prisoner-of-war
status, though there was still a requirement that they be treated
humanely. Other practical issues that required careful thought
and planning included: maintenance of order (and avoidance of
looting and revenge killings) in liberated towns; how to bring
pressure on Northern Alliance forces to observe basic norms; and
assistance for humanitarian relief operations. A particularly
difficult problem was determining where overall responsibility
would lie in such matters as treatment of enemy prisoners, granted
that the USA and the Northern Alliance forces might both be involved
in the events leading to their surrender. I assume that in the
four weeks after 11 September considerable thought was given by
US and UK governments to problems such as these, but have no direct
information on this.
11. Since the direct US and Coalition military
involvement began on 7 October 2001, many of the problems indicated
in the preceding paragraph have in fact arisen. They have been
heavily publicized because of the remarkable role of the press
in this war, operating close to (and even in some cases in front
of) the front lines, and sending back reports and high-quality
pictures as events unfold. While the discriminate character of
much Coalition bombing has been a generally positive factor, Coalition
actions in respect of some of these issues have in my judgement
probably had a negative effect on international support for Coalition
operations. Two principal causes for concern have related to the
bombing of certain locations in Afghanistan, and the treatment
of prisoners, each of which is discussed separately below. A third
issue discussed briefly is assistance for humanitarian relief.
12. There has been much international concern
over aspects of the US/Coalition bombing in Afghanistan. There
have been certain bombing attacks causing significant numbers
of apparently civilian casualties, and also the two attacks which
hit an ICRC warehouse in Kabul. There have also been reported
killings of friendly forces. The most serious reports of attacks
affecting civilians relate to reported bombings on 1 and 2 December
of Kama Ado and neighbouring villages in eastern Afghanistan,
not far from the cave complex at Tora Bora: while reports indicate
that over a hundred villagers may have died, the Pentagon has
denied that such attacks took place. In legal terms, it is wrong
to assume that civilian deaths per se constitute a violation.
There are strong reasons to believe US statements that civilian
deaths in the above types of episode were unintended. Some may
well have resulted from errors of various kinds, and some may
have been unavoidable or unlucky collateral damage. Much of the
bombing to date has been discriminate. However, events of the
type indicated, even if they do not constitute violations of the
law, do have the potential to harm the Coalition cause.
13. There has also been much concern over
the difficult issue of treatment of prisoners. Here the main focus
has been on an exceptional event: the killing of a large number
of Taliban prisoners following the revolt at Qala-e-Jhangi Fort
near Mazar-e-Sherif in the period 25 November 1 December 2001.
Already before the prisoners were taken at Kunduz, it was evident
that the surrender and imprisonment of the foreign forces was
likely to prove extremely difficult. In an article ("Crisis
at Kunduz") published in The Guardian on 24 November I wrote:
"The US and other governments need to take a much clearer
and tougher stance towards their Afghan allies, requiring them
to establish a prisoner-of-war camp, not to institute a bloodbath."
I was concerned about a number of statements made by US Secretary
of Defense Donald Rumsfeld at press conferences, including his
press conference on 19 November, and in particular at the apparent
failure to make clear that if the fighters in Kunduz surrendered,
they would be treated humanely. This is not the place to go into
detail about the course of events during the rebellion at the
fort which started on 25 November. The situation was extremely
difficult, especially as the Taliban prisoners continued to pose
an extreme threat to their captors; and by not having laid down
their arms they failed to meet the requirements for prisoner-of-war
status. The precise chain of events leading to the revolt has
yet to be established, but the causes appear to include the following
heady mix: (a) these were particularly fanatical soldiers, for
whom the whole concept of surrender would be anathema; (b) the
arrangements for receiving, holding and processing the prisoners
appear to have been ad hoc and casual; (c) not all the prisoners
had surrendered all their weapons; (d) the prisoners were held
in a place where there was a large store of weapons, to which
they gained access; (e) some reports suggest that the prisoners
feared that they were about to be killed, so had nothing to lose
by revolt; and (f) the presence of foreigners at the fort, including
journalists and CIA men, may have added to the prisoners' fear
and anger.
14. In public discussion in the UK there
has been a tendency to focus on the events at the fort, including
the question of whether too much force was used once the rebellion
there had begun. There are issues there than need to be explored,
but if the situation was as desperate and threatening as some
have described it, the use of extreme measures is not surprising.
The public discussion should focus a bit less on blame once this
had begun, and a bit more on what the right overall policy would
be for receiving and dealing with an exceptionally difficult class
of prisoners. The most urgent issue raised by the events at the
fort is whether the USA and the Northern Alliance have a clear
overall policy for treating prisoners, and for handling the particularly
difficult category of foreign fighters. It may have been failures
to think the issue through before the prisoners ever got to the
fort that was the real cause of the disaster.
15. It is a difficult question whether the
US and other members of the International Coalition have influence
over the Northern Alliance's actions in such basic matters as
protection of prisoners. Even though this is primarily a Northern
Alliance responsibility, the Coalition is inevitably involved
in the matter. In his Pentagon press briefing on 30 November,
Donald Rumsfeld indicated in general terms (not in connection
with the prisoner question) that the US does have influence with
the forces with which it operates in Afghanistan: "We have
a relationship with all of those elements on the ground. We have
provided them food. We've provided them ammunition. We've provided
air support. We've provided winter clothing. We've worked with
them closely. We have troops embedded in their forces and have
been assisting with overhead targeting and resupply of ammunition.
It's a relationship." This contrasts with a statement of
Prime Minister Tony Blair, who was asked on 13 November, again
in general terms, "What sanctions do we have over the Northern
Alliance?" He replied simply "None." (The above
texts are respectively from the US DoD and UK 10 Downing Street
websites.)
16. An important question not explored in
detail here is the obligations of the various parties to assist
in and protect humanitarian relief operations. The main relevant
provisions are those in Part II (i.e. Articles 13-26) of 1949
Geneva Convention IV on civilians. Now that many parts of Afghanistan
are no longer under Taliban control, there should be scope for
making appropriate security arrangements to reduce the risk of
aid being hampered by banditry or internecine fighting. The whole
issue is urgent now that winter has arrived.
17. In view of the likelihood that further
issues relating to the laws of war will arise in the continuing
war in Afghanistan, not to mention in any other countries which
may become involved in the war against terrorism, there is a need
for greater clarity about observance of basic rules of the laws
of war generally. In particular there is a need for better preparation
in practical matters such as the taking and holding of prisoners.
To judge by events since the fall of Kunduz, there is a risk that
laws of war issues will become contentious in relations between
Coalition members. It is the task of diplomacy, including British
diplomacy, to try to ensure that there is a consistent and defensible
approach to these tangled and difficult issues. It will be well
worth exploring what the FCO and Ministry of Defence have done,
and plan to do, on them, especially granted the significance of
these issues for the maintenance and effective operation of the
Coalition.
Professor Adam Roberts
Balliol College
Oxford
4 December 2001[1].
1 [On 16 February 2002 Prof. Roberts supplied to the
Committee an advance copy of his article on "Counter-terrorism,
Armed Force and the Laws of War" which appeared in Survival,
quarterly journal of the International Institute for Strategic
Studies, London, vol. 44, no. 1, Spring 2002, pp. 7-32. This supplemented
and updated paragraphs 5 to 16 of the memorandum.] Back
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