Does Being At War Make Them All Warriors? Categorization of Persons Involved in an Armed Conflict and Whether a Different Categorization Would Yield a Different Result in the Conflicts in Iraq and Afghanistan Jan Fleckenstein*
On Saturday, February 13, 2010, American, British and Afghan forces swept down on the town of Marjah, Helmand Province, Afghanistan, in an offensive designed to wrest the town from Taliban control.
1
Unlike most previous offensives into Taliban-held territory in Afghanistan, this military action was announced to the region’s inhabitants weeks in advance
2
on the theory that the Taliban would abandon the town before the North Atlantic Treaty Organization (NATO)
3
forces arrived and that local elders would convince young Afghans not to resist.
4
The U.S. and Afghan governments also announced that once secured, the troops would not leave Marjah to be retaken by the Taliban; this time, Coalition forces were in Helmand for the long haul to support the Afghan government’s establishment of control over the province.
5
But once on the ground in Marjah, NATO forces encountered stiff resistance in an initial battle
*
Jan Fleckenstein, J.D., M.L.S., M.S./I.R.M, Syracuse University. Associate Director, H. Douglas Barclay Law Library, Syracuse University College of Law. A version of this paper was originally submitted in satisfaction of a requirement for Law 840, Laws of Armed Conflict, Professor David M. Crane, Syracuse University College of Law, April 2010.
1
Michael M. Phillips & Matthew Rosenberg,
U.S. Starts Afghan Surge
, Wall St. J., Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html (
see also
http://online.wsj.com/article/SB10001424052748703382904575059921198076854.ht ml#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26articleTabs%3Dinteractive).
2
Id.
3
NATO joined the military action in Afghanistan that was initially named
Operation Enduring Freedom
, a U.S.-led defensive action under Article 51 of the United Nations Charter, later sanctioned by U.N. Security Council Resolutions 1379 and 1401. L
ESLIE
C. G
REEN
, T
HE
C
ONTEMPORARY
L
AW OF
A
RMED
C
ONFLICT
, 3
RD ED
. 19 (2008).
4
Phillips & Rosenberg,
supra
note 1.
5
Id.
2
that lasted for fourteen days.
6
In the weeks after the battle of Marjah, Afghans and U.S. forces alike complained that the Taliban were still present in the area, killing, beating and intimidating local residents, and even coming to collect compensation from the Marines for property damages in the February offensive. “You shake hands with them, but you don’t know they are Taliban,” Colonel Sakhi said. “They have the same clothes, and the same style. And they are using the money against the Marines. They are buying I.E.D.’s
7
and buying ammunition, everything.”
8
The frustration of troops fighting in Afghanistan, who were driving Taliban fighters out of various regions of the country only to have them re-infiltrate villages and towns as soon as U.S., NATO and International Security Assistance Force (ISAF) forces moved on, was echoed by a segment of American public opinion
9
and a broader swath of criticism from around the world as to how the U.S. was conducting “its” wars in Afghanistan and Iraq.
10
Support for the 2010 surge of troops into Afghanistan was tempered by frustration that, after eight years, the Afghan government led by President Harmid Karzi controlled only 20% of the sovereign
6
Interactive Map: Regional Violence Follow Events in Afghanistan and Pakistan, Day by Day
, W
ALL
S
T
. J. O
NLINE
, Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904 575059921198076854.html#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26 articleTabs%3Dinteractive.
7
Improvised Explosive Devices.
8
Richard A. Oppel , Jr.,
Violence Helps Taliban Undo Afghan Gains
, N.Y. T
IMES
, Apr. 3, 2010, http://www.nytimes.com/2010/04/04/world/asia/04marja.html.
9
Jackie Northam,
Afghan Deaths Threaten Support For U.S. Offensive
, N
ATI
’
L
P
UB
. R
ADIO
, Apr. 23, 2010, http://www.npr.org/templates/story/story.php?storyId=126195738.
10
Jennifer Agiesta & Jon Cohen,
Public Opinion in U.S. Turns Against Afghan War
, W
ASH
. P
OST
, Aug. 20, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/19/ AR2009081903066.html.
3
territory of Afghanistan.
11
Meanwhile, Iraq continued to be plagued by sectarian violence and a growing insurgency, which threatened the scheduled removal of American fighting forces in 2010 and the withdrawal of all U.S. military forces by the end of 2011.
12
C
AUSES OF
F
RUSTRATION
F
OR
T
ROOPS IN
A
FGHANISTAN AND
I
RAQ
The inability of the U.S. and its allies to decisively defeat al Qaeda and the Taliban in Afghanistan, or to end the sectarian insurgency in Iraq, has raised questions about the sufficiency of international law to govern armed conflicts between a national military and extremist militants, and to control the conduct of militant forces with regard to civilian populations. While armed conflicts between national armies and rebel groups are not new, the laws of armed conflict grew out of the experience of the horrors of war between nations with regularly-constituted national armies, not civil wars, insurgencies or terrorist plots.
13
Additionally, the assertions of the U.S. government under President George W. Bush that the U.S. was engaged in a “global war on terror,” and that the Geneva Conventions did not apply to the conflicts in Iraq and Afghanistan, have raised questions about the role and sufficiency of the laws of war to control the actions of state parties when national armies are arrayed against terrorist groups or
11
Eight years after 9/11 Taliban now has a permanent presence in 80% of Afghanistan
, IC
O
S, Sept. 10, 2009, http://www.icosgroup.net/modules/press_releases/eight_years_after_911 (According to the International Council on Security and Development, Taliban forces have moved back into regions once secured by the U.S.).
12
Iraq
, N.Y. T
IMES
O
NLINE
, http://topics.nytimes.com/top/news/international/countriesand territories/iraq/index.html?scp=2&sq=american%20public%20opinion%20iraq&st=cse (last updated Feb. 24, 2012).
13
See generally
Denise Plattner,
Assistance to the Civilian Population: the Development and Present State of International Humanitarian Law
, I
NT
’
L
C
OMMITTEE
R
ED
C
ROSS
, June 30, 1992, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmar?opendocument.