Implementation of International Humanitarian Law in Non-International Armed Conflict in Afghanistan

Implementation of International Humanitarian Law in Non-International Armed Conflict in Afghanistan

International humanitarian law (IHL) is the law applicable in armed conflicts, sometimes also referred to as the law of war (jus in bellum). It has been defined as international rules which have been established by the customs and treaties, aimed at providing a solution to the humanitarian problems arising from the armed conflicts.[1] It also aims at providing protection to persons who are not or no longer taking part in the hostilities and limits the rights of the parties to use means and methods of warfare.[2]

The four Geneva Conventions of 12^th August 1949 for the protection of the victims of war are the main sources of international humanitarian law. They came into force in 1950. They are:

·         Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention)

·         Convention for the Amelioration of the Condition of Wounded and Sick and Shipwrecked Members of Armed Forces at Sea(Second Geneva Convention )

·         Convention Related to treatment of prisoners of War (Third Geneva Convention)

·         Convention Related to the Protection of Civilian Persons in time Of war(Fourth Geneva Convention)

The Geneva Conventions have been supplemented with the two Additional Protocols of 8^th June 1977:

·         First Additional Protocol relating to the Protection of Victims of International Armed Conflicts

·         Second Additional Protocol relating to the Protection of Victims of Non- International Armed Conflicts

Apart from this there are numerous other treaties covering issues like prohibitions upon use of certain weapons, protection of certain categories of persons, cultural property etc. [3] IHL also covers within its ambit number of customary international law rules which are considered to be mandatory to be applied by all parties to an armed conflict.[4]

The enforcement of International humanitarian law depends upon the characterisation of the conflict as international armed conflict or non international armed conflict. In the former two or more sovereign States fight against each other whereas In a non-international armed conflict the existing government is fighting against a faction within its own territory or different factions are fighting against each other without the involvement of governmental power [5] Whereas, the whole body of international humanitarian law applies during the former, during non-international or internal armed conflicts, however, only a small part of the law applies, namely: the common Article 3 of the Geneva Conventions together with Additional Protocol II to the Geneva Conventions.

The Geneva Conventions gives no definition as to what constitutes a non-international armed conflict. Article 3 provides only rules that can be applied in case of non international armed conflict.  However, this much can be said that a non-international armed conflict takes place within the territory of a State, between existing governmental authority and groups of persons subordinate to this authority, which is carried out by force of arms and reaches the magnitude of an armed riot or a civil war.[6]

The ICRC Commentary on common Article 3 sets up a list of conditions relevant to differentiate a non-international armed conflict from mere tensions and disturbances. These conditions include that the insurgents should be organised in some way, have a responsible command and act in a defined territory. The government should also have to involve its armed examples given in the Commentary are not exhaustive but illustrate different scenarios. The criteria all refer to some level of seriousness of the conflict, inter alia the involvement of governmental armed forces or the level of organisation of the opposing faction. The aim and purpose of the insurgents is another criterion to evaluate in order to distinguish a non international armed conflict from tensions or disturbances.[7] Additional Protocol II on the other hand, defines non-international armed conflicts in negative terms, referring to all conflicts not covered by Article 1 of Protocol I.[8]Additional Protocol II also excludes from its scope of application certain types of circumstances as not covered by the term “armed conflict”, with the specific reference to internal disturbances and tensions.[9]

Against this backdrop an attempt will be made in the present work to assesses the application first of Common Article 3 and then of Additional Protocol II to the armed conflict in Afghanistan and also to  throw light upon the implementation of international humanitarian law in non-international armed conflict in Afghanistan.

After the terrorist strike in America on September 11, 2011, the USA launched the ground operation i.e. “Operation Enduring Freedom” in Afghanistan.  This operation was started with the intent to topple the Taliban government and drive out Al Qaeda forces in Afghanistan. Currently, there are multiple conflicts ongoing in Afghanistan and each conflict is regulated by a specific set of legal rules.[10]There is a conflict between the Islamic Republic of Afghanistan against the insurgents, between multinational troops, operating under the NATO, as per the   UNSC Resolutions and then there is the US forces which continue to in Afghanistan against Al Qaeda as part of OEF.[11]

As stated earlier, the protection offered to those affected by an armed conflict is different depending on how a conflict is classified. Therefore, in Afghanistan, since there are multiple conflicts, it becomes important to identify the nature of the conflict so that correct legal rules can be applied.

For this purpose, it can be said that the violence in Afghanistan has moved through four stages.[12]

First stage: The first stage covers circumstances culminating into the US-led invasion of Afghanistan in October 2001. In this stage, the violence between the Taliban government and the Northern Alliance forces constituted an armed conflict of a non-international character.

Second Stage: This stage covers the period between 7 October 2001 to 18 June 2002 [13] when Operation Enduring Freedom (OEF) was launched by US against the Taliban governing Afghanistan. Since Taliban represented at that time the de facto government of Afghanistan, the hostilities between them were subject to the law of international armed conflict.[14]

Third Stage: In June 2002, Afghan Government was established with the election of Hamid Karzai as president. The international armed conflict came to an end because it no longer opposed two or more states. [15]However, the conflict between the Afghan national security forces and the Taliban continued and acquired the character of non-international armed conflict.[16]

 

Application of Common Article 3 and Additional Protocol II

 

Afghanistan ratified the four Geneva Conventions in 1956 and adhered to the two Additional Protocols in June 2009, with Additional Protocol II coming into force for that country on 24 December 2009.[17] Common Article 3[18] of the 1949 Geneva Conventions applies in case of a conflict “not of an international character.” In Prosecutor v. Tadic, International Criminal Tribunal for the former Yugoslavia (ICTY) stated that the two conditions must be satisfied for application of common Article 3: there must be a state of ‘protracted’ armed violence, and any armed non state actor (ANSA) must possess a certain level of organization in order to be considered party to the conflict under international law.[19]

Afghanistan, as noted above, is a state party to the Geneva Conventions, and for most of the last decade the violence between the Afghan government and international military forces and organized armed groups (particularly, but not only, the Taliban) has been of such intensity that an armed conflict has been taking place. It is further asserted that regarding the requisite level of organization of an ANSA to be considered a party to the conflict, the four main groups – the Taliban, the Haqqani network, Hezb-e-Islami, and Al Qaeda operational in Afghanistan – have each demonstrated sufficient organization to be bound directly by international humanitarian law.

Additional Protocol II was enacted in 1977 in order to apply to conflicts not of international character. However, it applies only where it has been ratified by the States.

In its application, its scope is more restricted than that of common Article 3.[20] According to Article 1, paragraph 1, the Protocol applies to all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. This implies that the Protocol governs ‘the most intense and large scale conflicts’.[21]

Thus Additional Protocol II introduces a much higher threshold for application than Common Article 3. Apart from there being an existence of armed conflict between non state actors and the government, ,[22] there are other three conditions which must be fulfilled. There are:[23]

1.      The organized armed group or groups must be under responsible command;

2.      They must exercise such control over a part of the national territory as to enable them to carry out prolonged military operations, and

3.      The control over the territory must be such as to enable them to be able to implement the Protocol.

The above Protocol was ratified by Afghanistan in November 2009 and for its application, as stated above, following conditions must be satisfied:

 

Responsible command- The main groups operating in Afghanistan – Taliban, the Haqqani network, Hezb-e-Islami, and Al Qaeda have each demonstrated sufficient organization to be bound directly by international humanitarian law. Further, the code of conduct issued by Taliban at regular intervals is evidentiary of the fact that the group has a system of allocating authority and responsibility and it can be asserted that the Taliban meets this organizational criterion.[24]

 

Control over a part of the territory– This would require Taliban to control substantial territory of Afghanistan so as to enables them to ‘carry out sustained and concerted military operations. [25] The Taliban armed seems to have succeeded in establishing a ‘shadow government’ throughout Afghanistan, where they control parts of the Afghan population.

 

 

Prolonged military operations against governmental armed forces

Prolonged military operations against governmental armed forces refer to continuous operations, while ‘concerted’ indicates operations that are ‘agreed upon, planned and contrived, done in agreement according to a plan’.[26] Given the intensity of combat in Afghanistan and the level of casualties suffered by the forces ranged against the Taliban this criterion has clearly been met.

 

Thus from above it can be concluded that the Common Article 3 and the Additional Protocol II is applicable to the conflict between the armed forces of the Government and the Taliban in Afghanistan.  with respect to the application of the Additional Protocol II to the “armed non state actors” in Afghanistan, it can be inferred from Article 1(1) of AdditionalProtocol II since they fulfil the criteria of ‘organized armed groups’ referred to in that Article.[27]

 

Challenges to Implementationin non-international armed conflicts

IHL makes a distinction between ‘international armed conflict’ and ‘non-international armed conflict’ and this distinction is evident is the implementation mechanism as well. Neither Article 3 common to the four Geneva Conventions nor Additional Protocol II expressly provides for a mechanism for the implementation of IHL in non international armed conflict[28]. Further, the Additional Protocol II does not become applicable unless the State in question is a party to the protocol.[29] Another great issue relating to the implementation of international humanitarian law in internal armed conflicts is the question of recognition.

Whereas States have an obligation under international law to “adopt and carry out measures implementing humanitarian law”[30] they might be reluctant to admit that the hostilities meet the requirements for a non international armed conflict.

another challenge in the implementation of IHL in non international armed conflict is that as the violation of Common Article 3 and Additional Protocol II is not regarded as grave breaches, there is only an obligation to put an to the conflict but no pressure as such to punish the perpetrators.[31] 

Part IV of the Additional Protocol II imposes a ban on the attacks on the civilian population,[32] prohibits starvation of the civilian population[33] and attacks on objects indispensible to its survival.[34] In flagrant disregard to the mentioned provisions, in Afghanistan, Combatants on all sides have shown a lack of sufficient concern for sparing and protecting the lives and property of the civilians Afghans not involved in the fighting and for minimizing the impact of the war on the civilian population.[35]. There have been reported incidents of extrajudicial execution or mutilation of persons alleged to have collaborated with the Afghan government or with international forces. Anti-government groups have also resorted to the taking of hostages, kidnapping protected civilian persons including journalists, aid workers and medical personnel. All these instances are a clear violation of the of protections enshrined in Common Article 3 and AP II.[36]

Thus form above it can be concluded that there is a pressing challenge tofor effective implementation of IHL in Afghanistan.  The protection accorded by IHL varies according to the nature of the conflict. Therefore, first and foremost, for the effective implementation of it is important to clearly determine type of conflict. In case of Afghanistan, the extent to which Additional Protocol II is applicable to the various parties to the conflict in Afghanistan is far from settled.[37] Government of Afghanistan and all foreign forces involved in the conflict should commit publicly to respecting all of the provisions of the Protocol.  Pressure, through peaceful means must be imposed upon Taliban and other non state actors to do the same. There should be dissemination of the IHL as a whole as widely as possible. Lastly, it is the duty of the international community to pressurise all the parties to the conflict to the conflict to adhere to their obligations under international humanitarian law.

Submitted by:
Dr. Asha Verma Assistant Professor, Amity Law School,Noida, U.P
Ms Ruchi Lal Research Scholar, Faculty of Law, University of Delhi