1

NMIMS SCHOOL OF LAW

POLITICAL SCIENCE III- FINAL DRAFT

ON
HUMAN RIGHTS, HUMANITARIAN LAW AND THE WAR ON
TERRORISM IN AFGANISTAN
SUBMITTED BY:-
VIDISHA SHARMA
ROLL NO. : A045
TRIMESTER-IV
B.A. LL.B. (HONS.)

DATE OF SUBMISSION: DECEMBER 1, 2016

SUBMITTED TO:
PROFESSOR RAVI SAXENA
 2

INDEX

SR.NO CHAPTERISATION PAGE NO.

1. INTRODUCTION 4

2. LITERATURE REVIEW 7

3. RESEARCH METHODOLOGY 9

4. JUS AD BELLUM 11

5. JUS IN BELLI: THE CONVERGENCE OF HUMAN RIGHTS 15

AND HUMANITARIAN LAW

6. CONCLUSION

7. BIBLIOGRAPHY
 3

ABBREVIATIONS USED

1. US………………………………………………………. United States

2. GC……………………………………………………..... Geneva Convention

3. IHL……………………………………………………… International Humanitarian Law

4. POW…………………………………………………….. Prisoners of War

5. GWOT…………………………………………………... The Global War On Terrorism

6. ICISS……………………………………………………. International Commission on

Intervention and State Sovereignty.

7. UN………………………………………………………. United Nations

8. ICJ………………………………………………………. International Court of Justice

 4

CHAPTER-1

INTRODUCTION

Humanitarian intervention is characterized as "coercive measures by outside military

strengths to guarantee access to regular folks or the assurance of rights without the assent of
local political powers." The humanitarian intervention discussion is currently confined in
connection to the standard of the 'responsibility to protect' created by the International
Commission on Intervention and State Sovereignty (ICISS) and published in December 2001.
The rule and routine of the international community's 'responsibility to protect' is basic
keeping in mind the end goal to save individuals from butchered and mass killings when the
sovereign state itself can't or unwilling to do as such. Be that as it may, the international
community is isolated on the issue of coercive intercession with the end goal of human
assurance in instances of mass killings and genocide.1

Generally, humanitarian actors have not concerned themselves about the rights and wrongs of
war in essence (in legitimate terms, the ius ad bellum), but instead with the manner in which
the wars are fought, and how to moderate their impacts on regular citizens what's more,
others not straightforwardly occupied with battle (ius in bello). In many regards, The Global
War On Terrorism (or 'GWOT', as it has turned out to be known in a few quarters) is simply
one more war, or arrangement of wars, in which the battles are fought and won,
administrations changed and individuals murdered, injured and uprooted from their homes. In
this sense, the commitments of humanitarian actors have changed little since that critical
September day, both in the fundamental theatres of the worldwide war on fear
mongering(from Afghanistan to Iraq to Chechnya and Colombia), and on the fringe of the
contention - in the Democratic Republic of Congo and West Africa, for instance.2

The law of war has always contained prohibitions and restrictions on methods and means of
combat, including the use of specific weapons (e.g. poison, the dum-dum bullet). Later on,
states have accepted limitations on their peacetime armaments as well. The recent law of
arms control and disarmament has provided a new perspective for that part of the law of war
which deals with methods and means of combat and the use of weapons in war3. The concept
of humanitarian law is confined to situations of armed conflict ('international humanitarian
law applicable in armed conflicts'),that is, situations of war in a material sense. But some
authors use the concept of humanitarian law in a still wider sense, to include human rights
law, that is, law which is essentially applicable in peacetime.

1
Johannessen, A-M. “Humanitarian Intervention and the “Responsibility to protect” After September 11”. AM
Johannes.wikidot. Ed. AM Johannes. 3 July, 2008. wikidot. http://amjohannes.wikidot.com/humanitarian-
intervention-and-the-responsibility-to-protect. Accessed on Nov 25,2016 at 22:34.
2
Macrae and Harmer. “Humanitarian action and the ‘war on terror’: a review of issues”. Humanitarian Policy
Group. July 2003, https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/287.pdf.
Accessed on Nov 30, 2016 at 23:47
3
Rosas, Allan, and Pär Stenbäck. “The Frontiers of International Humanitarian Law.” Journal of Peace
Research, vol. 24, no. 3, 1987, pp. 219–236. Jstor www.jstor.org/stable/424363. Accessed on Nov 28, 2016 at
23:30.
 5

The scope of humanitarian law has widened, its content has become more influenced by
human rights, peace, and disarmament considerations, and at the same time its frontiers have
been blurred. In consequence, the legal and conceptual situation has also become more
bewildering. To a certain extent this development has been inevitable. One cannot imagine
humanitarian law, dealing with highly sensitive issues such as collective violence and the
status of the individual, developing in isolation.4

The war on terrorism constitutes not only a series of actual and potential armed conflicts, but
also a framework within which international and national policy, including humanitarian aid
policy, will be defined and implemented. The humanitarian enterprise has, of course, always
been influenced and shaped by its geopolitical environment. In Afghanistan during the Cold
War, for example, the majority of humanitarian agencies saw themselves as being in
solidarity with the anti-Communist movements, with principles of impartiality and neutrality
virtually absent from the discourse on relief. The language of principles, if not the systematic
adherence to them, became mainstreamed into relief programming only when agencies
started to engage with the Taliban.5

In 2001, preceding September 11, it appeared as if the world was moving unyieldingly
towards another compassionate standard of military mediation in instances of huge human
enduring, and specifically, genocide, ethnic purifying, and expansive scale human rights
infringement. A few reports were distributed in 2000 and 2001 that fortified the case for
humanitarian intercession. The Independent International Commission on Kosovo concluded
up in 2000 that the NATO intercession in Yugoslavia went for keeping the ethnic purging of
Albanians was "illicit yet true blue" and that there was a need to take measures to close the
crevice amongst lawfulness and authenticity. That same year, Report of the Panel on United
Nations Peace Operations (Brahimi Report) set forward viable proposition to enhance the
limit of the Assembled Countries to react to emergencies. Also in 2001, the International
Commission on Intervention and State Sovereignty came up with the concept of
“responsibility to protect” -the possibility that the worldwide group has an obligation to
ensure regular people when their own particular states neglect to do as such.6

The force with which the two hijacked planes hit the World Trade Centre on 11 September
has been equated to a small nuclear device. The attacks killed 2,792 people in New York,
with further deaths from the attack on the Pentagon and the crash of the fourth hijacked plane
in Pennsylvania. The scale of the strike, and its organised and premeditated character, led
American officials to describe the events of that day as an ‘armed attack’, and paved the way

4
Rosas, Allan, and Pär Stenbäck. “The Frontiers of International Humanitarian Law.” Journal of Peace
Research, vol. 24, no. 3, 1987, pp. 219–236. Jstor www.jstor.org/stable/424363. Accessed on Nov 28, 2016 at
23:50.
5
Macrae and Harmer. “Humanitarian action and the ‘war on terror’: a review of issues”. Humanitarian Policy
Group. July 2003, https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/287.pdf.
Accessed on Nov 30, 2016 at 23:47
6
Kaldor Mary. “a decade of the “war on terror” and the “responsibility to protect”: the global debate about
military intervention”. 10 years after September 11 SSRC, Ed. SSRC Forum. Spring 2012, SSRC,
http://essays.ssrc.org/10yearsafter911/a-decade-of-the-%E2%80%9Cwar-on-terror%E2%80%9D-and-the-
%E2%80%9Cresponsibility-to-protect%E2%80%9D-the-global-debate-about-military-intervention-2/ Accessed
on Nov 28, 2016 at 21:20
 6

for the US to take measures in self-defence in accordance with the UN Charter.1 Terrorism,
which previously had been primarily a matter of domestic policing, became an issue of
international peace and security.

The US declared war not only on al-Qa’eda, but on terrorism as a phenomenon. ‘Terrorism’
is generally understood to refer to the deliberate or reckless killing of civilians, or to the
doing of extensive damage to their property, with the intention of spreading fear through a
population and communicating a political message to a third party, usually a government. As
a term, it dates back at least to the French revolution. It was used in 1794 to refer to the use of
terror by the French revolutionary state against its opponents, and the Bolsheviks used it to
legitimise their actions against enemies of the state.7

The attacks on the World Trade Centre and the Pentagon on September 11, 2001, shook the
kaleidoscope of worldwide political level headed discussion. September 11 denoted the start
of the "War on Terror" and solid intercessions in Afghanistan and Iraq, and additionally
backhanded, or less obvious, interventions in Pakistan, Somalia, and Yemen. The talk of the
War on Terror has been utilized to legitimize Israeli assaults on Palestinians, the Russian
intercession in Chechnya, and different interventions. Also, in numerous nations, including
the United States, the War on Terror has been connected with a scope of measures expanding
observation and limiting human rights. Specifically, President Bush obtained expansive
forces that permitted him to keep suspects for uncertain periods and build up the famous jail
at Guantanamo. The result was a polarization of feeling between the individuals who
bolstered the War on Terror and the individuals who were against it. This verbal
confrontation separated the human rights and philanthropic group and crushed the space for
the individuals who supported the standard of helpful mediation. All things considered, this
was likewise a period when duty to ensure and related ideas, for example, human security,
peacebuilding, and adjustment, were progressively embraced by global establishments and
governments, even in the United States, and the energy of the thoughts of the 1990s was
conveyed forward.8

The researcher has divided this research into two parts. The first part describe the new
geopolitical reality of the “Bush doctrine” and access its implications for the international law
governing the resort by states to the threat or the use of force (jus ad bellum). The Second,
against this background the researcher has examined how the US- led “war on terrorism”
poses a radical challenge to the existing rules of humanitarian law (jus in belli) and human
rights.

7
Macrae and Harmer. “Humanitarian action and the ‘war on terror’: a review of issues”. Humanitarian Policy
Group. July 2003, https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/287.pdf.
Accessed on Nov 30, 2016 at 23:55
8
Kaldor Mary. “a decade of the “war on terror” and the “responsibility to protect”: the global debate about
military intervention”. 10 years after September 11 SSRC, Ed. SSRC Forum. Spring 2012, SSRC,
http://essays.ssrc.org/10yearsafter911/a-decade-of-the-%E2%80%9Cwar-on-terror%E2%80%9D-and-the-
%E2%80%9Cresponsibility-to-protect%E2%80%9D-the-global-debate-about-military-intervention-2/ Accessed
on Nov 28, 2016 at 21:40
 7

CHAPTER-2

LITERATURE REVIEW

In this research the researcher has used:

1. Kittrie, Nicholas N. “THE INTERNATIONAL LAW OF WAR AND AMERICA'S

WAR ON TERRORISM.” International Journal on World Peace, vol. 25, no. 3, 2008,
pp. 85–106. Jstor, www.jstor.org/stable/20752849. Accessed 30 Nov. 2016 at 16:00

The events of 9/11 perpetrated by Al Qaeda, a non-state actor, and the subsequent
capture of "terrorists" by U.S. forces and detention in Guantanamo, raises questions
about how international law should function in such cases. This article examines the
military rationale of the international law of war and the challenges to it by human
rights organizations and the U.S. justice system. Should suspected terrorists be treated
as POWs or international war criminals? Granting prisoner of war privileges to
suspected belligerents in detention has been resisted, particularly for its lack of
reciprocity. Current developments in international law have failed to vigorously
address this situation.

2. Denike, Margaret. “The Human Rights of Others: Sovereignty, Legitimacy, and

‘Just Causes’ for the ‘War on Terror.’” Hypatia, vol. 23, no. 2, 2008, pp. 95–121.
Jstor, www.jstor.org/stable/25483177. Accessed on Nov 25 at 20:00.
In this essay, Denike assesses the appropriation of international human rights by
humanitarian law and policy of "security states." She maps representations of the
perpetrators and victims of "tyranny" and "terror," and their role in providing a "just
cause" for the U.S.-led "war on terror." By examining narratives of progress and
human rights heroism Denike shows how human rights discourses, when used
together with the pretence of self-defence and preemptive war, do the opposite of
what they claim-entrenching the sovereignty of Western imperialist states while
eroding the conditions necessary for the recognition of the human rights of others.

3. Hoffman, Paul. “Human Rights and Terrorism.” Human Rights Quarterly, vol. 26,
no. 4, 2004, pp. 932–955. Jstor, www.jstor.org/stable/20069768. Accessed on Nov 28,
2016 at 19:00.
In this article, Paul Hoffman, the Chair of the International Executive Committee of
Amnesty International, presents Amnesty's view that the way in which the "war on
terrorism" has been waged threatens to undermine the international human rights
framework so painstakingly built since World War II. Written before the Abu Ghraib
revelations became public, the paper argues that abandoning human rights in times of
crisis is short-sighted and self-defeating. A "war on terrorism" waged without respect
for the rule of law undermines the very values that it presumes to protect. We must
 8

restore the balance between liberty and security by reasserting the human rights
framework, which provides for legitimate and effective efforts to respond to terrorist
attacks.

4. Foot, Rosemary. “The United Nations, Counter Terrorism, and Human Rights:
Institutional Adaptation and Embedded Ideas.” Human Rights Quarterly, vol. 29, no.
2, 2007, pp. 489–514. Jstor, www.jstor.org/stable/20072807. Accessed on Nov 28,
2016 at 20:40.
How resilient is the human rights norm in the counter-terrorist era? This question is
explored through examining the record of two of the UN Security Council's counter-
terrorist committees. The article argues that, initially, the procedures of these two
committees damaged human rights protections, an outcome criticized by UN officials,
human rights NGOs, and certain, mainly middle-power, states. Using the UN as a
platform, they made the argument that a failure to ensure that anti-terrorist measures
were in accordance with human rights standards would be counter-productive. As a
result, Committee procedures have evolved and now give greater attention to the
human rights consequences of counter-terrorist action.

5. KAPONYI, ELISABETH KARDOS. “UPHOLDING HUMAN RIGHTS IN THE

FIGHT AGAINST TERRORISM.” Society and Economy, vol. 29, no. 1, 2007, pp. 1–
41. Jstor, www.jstor.org/stable/41472069. Accessed on Nov 28, 2016 at 22:51.
This article is about counterterrorism and terrorism-related human rights concerns.
We are living in a globalising world in which people are increasingly faced with the
dilemma of fighting against terrorism while protecting human rights. This paper
suggests that eradicating terrorism can have a far-reaching effect on the overall
respect for human rights. Human rights have to be seen as the basis of counterterrorist
legislation and are never to be regarded as a hindrance of the struggle against
terrorism. The paper argues that the threat of terrorism requires specific measures, but
these provisions neither would violate human rights and fundamental freedoms nor
undermine legitimate dissent.

6. Feldmann, Andreas E., and Maiju Perälä. “Reassessing the Causes of

Nongovernmental Terrorism in Latin America.” Latin American Politics and Society,
vol. 46, no. 2, 2004, pp. 101–132. Jstor. www.jstor.org/stable/3177176. Accessed on
Dec 1, 2016 at 22:46
This article investigates the validity of a number of hypotheses by applying a pooled
time-series cross-section regression analysis to data from 17 Latin American countries
between 1980 and 1995. Findings indicate that nongovernmental terrorist acts in Latin
America are more likely to occur in poorly institutionalized regimes characterized by
varying degrees of political and electoral liberties, a deficient rule of law, and
widespread human rights violations.
 9

CHAPTER-3

RESEARCH METHODOLOGY

The research is done under the process of proper doctrinal research. The main idea of this
research will be to analyse what is the relation between human rights, humanitarian law and
war on terrorism. The scheme of idea will be explained through proper resources, articles and
prior research done by the legal experts and activists. This research project will be initially
starting with a basic overview of the topic and then the research will be done mostly through
the source of internet and books. After understanding the basics of the research topic

The method of data collection is purely in SECONDARY form.

OBJECTIVE OF THE RESEARCH

1. To describe the new geographical reality of the “Bush doctrine” and assess its
implications for international law governing the resort by states to the threat or the use
of force (jus ad bellum).
2. To analyse and examine how the U.S. led “war on terrorism” poses a radical
challenge to the existing rules of the humanitarian law (jus in belli) and human rights
law in general.
3. To analyse the effects of the US Exceptionalism.

LIMITATIONS OF RESEARCH

As the researcher has done the research there are many limitations also to this research. As
we know that this topic is very vast in itself the researcher cannot research on the all the areas
concerned with the research topic. The researcher could not bring out all the issues because
neither the time permitted nor the page limit.

RESEARCH QUESTIONS

1. What is the new geographical reality of the “Bush doctrine” and how its implications
are assessed for international law governing the resort by states to the threat or the use
of force (jus ad bellum)?
2. How the U.S. led “war on terrorism” poses a radical challenge to the existing rules of
the humanitarian law (jus in belli) and human rights law?
 10

TENTATIVE CHAPTERISATION

CHAPTER 1: INTRODUCTION
In this chapter the researcher has introduced the research topic. Explaining human rights,
humanitarian law and what is the war against terrorism focussing on Afganistan.
CHAPTER 2: LITERATURE REVIEW
In this chapter the researcher has written about the all the literature reviewed before this
research.
CHAPTER 3: RESEARCH METHODOLOGY
In this chapter the researcher has explained the research methodology used in this research
project.
CHAPTER 4: JUS AD BELLUM
In this chapter the researcher has focussed on what new laws were implemented by the
Security Council after September 11.
CHAPTER 5: JUS IN BELLI: THE CONVERGENCE OF HUMAN RIGHTS AND
HUMANITARIAN LAW
In this chapter the researcher has focussed on the status of detainees under international
humanitarian law, the rights and future trials of the detainees under international
humanitarian law.
CHAPTER 6: CONCLUSION
In this chapter the researcher has concluded the research topic with findings and suggestions.
CHAPTER 7: BIBLIOGRAPHY
 11

CHAPTER-4

JUS AD BELLUM

Jus ad bellum can be defined as the rules regulating the resort to armed force. As long as war
was considered as "just another means of settling disputes," jus ad bellum was quite
developed. With the gradual prohibition of the resort to armed force, which culminated in the
adoption of the UN Charter, jus ad bellum became increasingly limited. As of today, it is
limited in practice to self-defence (Article 51 of the Charter) and collective security
operations (Chapter VII of the Charter).9 Articles 10-17 of the League of Nations Covenant
are relevant for definition of the jus ad bellum. Three general comments may serve to isolate
the overall thrust of these Articles. First, the emphasis on arbitration of international disputes
is as pronounced here as it was weak in the Hague Convention of 1899. The language of
Articles 12 and 13 embraces, respectively, disputes "likely to lead to a rupture" and any
others "suitable for sub mission to arbitration or judicial settlement" (the latter provision
added in 1924). 10

International law has moved on the premise that competence de guerre as understood in the
nineteenth and early twentieth centuries must be denied. The confluence of contemporary
legal and theological doctrine on the jus ad bellum derives in large part from their common
effort to renounce what war had become by the beginning of this present century. And yet
therein also lies the weakness of these contemporary doctrines, which have become in effect
a single doc trine: in focusing too closely upon specific historic conditions, they have not
adhered sufficiently to the principles of justice contained in classic just war doctrine. 11

On September 11, the members of al-Qaeda, the international terrorists, carried out attacks on
the World Trade Centre in New York and on the Pentagon in Washington D.C.. These attacks
killed 2,996 people and over 6,000 people were injured in the same, and caused
approximately $10 billion in property and in infrastructural damage. The terrorists had
hijacked four civilian air-craft and flew them into these targets (with one aircraft crashing in
Pennsylvania) killing all the passengers on the board and caused mass deaths and injuries to
the civilians and massive destruction of property.12

Before 9/11, a restrictive standard of attribution prevailed in international law, which largely
insulated states harbouring irregular forces from becoming subject to military responses at
least in theory. The global fight against terrorism, however, has strengthened the notion that
sovereignty entails responsibility for the effective control of one’s territory and that failure to
discharge this obligation legitimates a military response. The toppling of the Afghan Taliban,
which had neither directed nor controlled the perpetrators of 9/11, broke with traditional

9
http://ezproxy.svkm.ac.in:2067/stable/pdf/25660071.pdf
10
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf
11
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf
12
Carter, Shan and Cox A. “One 9/11 tally: $3.3 Trillion.” The New York Times, September 8, 2011, p B2,
InfoTrac Newspapers, www.nytimes.com. Accessed on Nov 29, 2016 at 1:43.
 12

norms for attributing private action to a state but was nonetheless greeted with widespread
approval or at least tacit acquiescence by the vast majority of states. Although the old rules
governing the use of force are thus clearly in flux, no new, full-fledged legal regime
regulating the right to self-defence in response to irregular warfare has yet to emerge. Post-
9/11 state practice has been described as “disrupted and confused,” and the conservative
pronouncements of the International Court of Justice (ICJ) on self-defence have further
muddied already murky waters.13 The underlying legal rationale of the U.S. response to the
events of September 11 was made clear the very night of the attacks. In a speech to the
nation, President George W. Bush stated, "We will make no distinction between the terrorists
who committed these acts and those who harbour them.”14

U.N. Security Council Resolution 1368 was adopted unanimously on the day following the
September 11th attacks, recognizing the "inherent right of individual or collective self-
defence" in its preamble. It also refers to its "readiness to take all necessary steps to respond"
to the attacks, and "to combat all forms of terrorism, in accordance with its responsibilities
under the Charter of the United Nations."15

Again on September 28, 2001, the Security Council, reacting to the events of September 11,
departed from its previous limited and cautious practice. Acting on a draft proposed by the
United States and explicitly referring to Chapter VII of the Charter, the Council adopted
Resolution 1373 (2001), by which it decided in two operative paragraphs "that all States
shall" take certain actions against the financing of terrorist activities, as well as a miscellany
of other actions designed to prevent any support for terrorists and terrorist activities.' A
further operative paragraph "calls upon all States" to take certain additional actions.'
Furthermore, the resolution established a plenary committee of the Council (since referred to
as the "Counter-Terrorism Committee") to monitor implementation of the resolution and
called on all states to report on their compliance with it, initially within ninety days and there-
after according to a timetable to be proposed by the committee. In the past, as pointed out
above, the Security Council has often required states to take certain actions, such as to
implement sanctions against a particular state or to cooperate with an ad hoc tribunal,' but
these requirements always related to a particular situation or dispute and, even though not
explicitly limited in time, would naturally expire when the issue in question and all its con-
sequences were resolved. By contrast, as Resolution 1373, while inspired by the attacks of
September 11, 2001, is not specifically related to these (though they are mentioned in the pre-
amble) and lacks any explicit or implicit time limitation, a significant portion of the
resolution can be said to establish new binding rules of international law-rather than mere
commands relating to a particular situation-and, moreover, even creates a mechanism for
monitoring compliance with them. Of particular interest are the provisions of operative
paragraph 1 of Resolution 1373, designed to cut off financing for terrorists. These are clearly

13
http://ezproxy.svkm.ac.in:2067/stable/pdf/10.5305/amerjintelaw.105.2.0244.pdf
14
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070687.pdf
15
http://ezproxy.svkm.ac.in:2067/stable/pdf/40707702.pdf
 13

based on the International Convention for the Suppression of the Financing of Terrorism,
adopted by the General Assembly without a vote on December 9, 1999.16

The Challenge to Prior Understandings of Jus ad Bellum

Academic critics of the U.S. use of force have made numerous legal arguments. Although
space does not permit discussing them all, several hinge on the legitimacy of self-defence
against Afghanistan as a state in response to the actions of Al Qaeda there. These challenges
raise questions as to (1) the appropriate interpretation of the Charter, in particular the
definition of an "armed attack" in Article 51; (2) the requirements under customary
international law of necessity and proportionality in reactions of self-defence; and (3) the
customary law of state responsibility, in particular whether a state is liable for actions
undertaken by those with a nexus to it, in this case the planning of terrorist acts by non-state
actors on its territory. Numerous decision makers in the international legal process have
addressed these questions. On the first issue, the General Assembly's 1974 Definition of
Aggression, conceived as a guide to the Security Council in carrying out its functions under
the Charter, offers a list of activities by armed forces that constitute aggression. Although the
definition does not define "armed attack," it confirms governmental understandings that
aggression includes a variety of actions, from cross-border attacks to attacks on naval ships,
and then adds " the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity as to
amount to [the previously listed acts of aggression], or its substantial involvement therein."

The International Court of Justice (ICJ) stated in Nicaragua v. United States 17 that such
sending of armed bands amounts to an armed attack only if "because of its scale and effects"
it would be more than a "mere frontier incident" (or, as it later said, if it were "on a
significant scale"), and famously rejected the notion that mere assistance to rebels was an
armed attack triggering the right of self-defence. On the second issue, regarding necessity, the
most frequently invoked pronouncement is the exchange of diplomatic correspondence from
the 1837 Caroline incident, in which both the United States and the United Kingdom seemed
to accept the idea that a state asserting self-defence must demonstrate its "necessity ... [as]
instant, overwhelming, and leaving no choice of means, and no moment for deliberation."
Scholars have already reached vastly different conclusions about the application of the
Caroline to September 11 or terrorist attack generally.18

Criticism

By condemning first resort to force, it opens the way for aggression by means other than
force: economic manipulation, subversion, ideological "warfare" by propaganda, and so forth.
It is not at all clear that recent papal proscription of war for vindication or to recover

16
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070686.pdf
17
Nicaragua v United States, [1986] ICJ Rep 14
18
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070687.pdf
 14

something unjustly taken is a morally or politically proper modification of classic just war
doctrine. In the second place, while all-out nuclear war remains an undertaking no one in his
right mind wants to embrace, the last twenty years have shown that conflicts can still be
conducted with conventional arms for limited ends without escalation to the nuclear level.
Given the limited character of such "modern" war as this, the judgment that war today must
always produce more evil than good is simply not true prima facie. This requires that we look
further into the causes and effects of actual and potential wars, and to do so re quires laying
aside the condemnation of first use of force per se. In the third place, the contemporary
doctrine pays insufficient attention to the criterion of right intention. As first stated by
Augustine, this rules out cupidity, cruelty, implacable animosity, a rebellious spirit, a wish to
dominate, and the like. In its excessive preoccupation with denying first resort to force, the
contemporary doctrine on the jus ad bellum has lost sight of what Augustine knew: that the
moral quality of the use of force is determined by the reason for its use.19

19
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf
 15

CHAPTER-5
JUS IN BELLI: THE CONVERGENCE OF HUMAN RIGHTS AND
HUMANITARIAN LAW

There are three basic principles which may nonetheless be discerned from the historical
account as underlying traditional theories of restrictions in war. These encompass the
principle of discrimination, which prescribes moral immunity of non-combatants from
deliberate direct attack; the principle of proportionality which requires that the evil to be
prevented be greater than the destruction involved in war; and chivalry which forbade resort
to dishonourable or treacherous means, expedience or conduct.

The principle of discrimination

The basic principle of discrimination remained constant throughout the history of the laws of
war, different interpretations of the combatants/non-combatants dichotomy were evident.
Thus the non-combatant idea was perceived under the chivalric code in terms of class
distinction, limiting warfare as between knights and sovereigns. Theological considerations
also affected the concept, resulting in a division of the enemy in accordance with their
religious affiliations. Reasons of morality prompted a further distinction between 'guilty' and
'innocent'. Yet another, and more popular, definition of non-combatants reflected a
'functional' approach according to which protection was granted to those who were engaged
in some occupation other than that of warfare (for instance, merchants, travellers, farmers) or,
negatively, were unable to function as soldiers (for instance, women, children, harmless and
undefended persons).20

The principle of proportionality

Some form of allowance in respect of military expedience was invariably also acknowledged
in connection with the second fundamental limitation on the conduct of war, namely
proportionality. It was clear in any event that while the principle of discrimination
incorporated some element of 'absoluteness', at least as a defined goal, proportionality
involved a relative calculation of the amount of military force that could be justified by the
legitimate military necessity to achieve a specific war objective. No precise guidelines were
provided however. Jurists merely reiterated the general principle that there should be a
proportion between the amount of evil that was brought and the amount of evil it intended to
avert.

The principle of chivalry

More concrete rules were expressed with respect to the third limiting principle of chivalry,
although the principle itself was never articulated as such. It has been generally explained as
deriving from the sense of fair play and honour in combat and requiring 'a certain amount of
fairness in offence and defence and a certain mutual respect between the opposing forces.
Falling into this category were restrictions concerning the use of 'dishonourable and
20
O'Brien , William V . “The Meaning of Military Necessity in International Law”. World Polity, 9. (1957), pg.
120.
 16

treacherous means' such as the hiring of assassins and traitors, the use of unscrupulous
methods like poison, wild animals and the pollution of drinking water, the maiming of one's
enemy and perfidious behaviour towards him.21

STATUS OF DETAINEES UNDER THE INTERNATIONAL HUMANITARIAN LAW

The origins of the concept of combatant status lie rooted in the Rousseau Portalis doctrine
which dictates that war is a contest between nations and not men. This seemingly simple
statement contains a number of distinct, but related strands. The first is that there needs to be
some kind of distinction between nations and individuals - in the sense that those who are
identified with the state in this context are permitted to participate in an armed conflict,
whereas other individuals may not participate in an armed conflict. This is the fundamental
principle of distinction which distinguishes participants (i.e. military) from non-participants
(i.e. civilians).

The other important consequence flowing from the Rousseau-Portalis doctrine is that,
precisely because war is a contest between nations and not individuals, participants cannot be
punished for mere participation. The effect of this is that, so long as participants are able and
willing to participate in hostilities, they are legitimate objects of attack by the opposing side.
However, the moment these participants are rendered hors de combat, and fall into the hands
of the opposite side, they no longer pose a threat and are entitled to demand protection from
the latter.22 More importantly, they cannot be punished by this opposite side for having taken
up arms against it and may only be detained as prisoners of war (POWs). It is on this basis
that the principles of International Humanitarian Law (particularly those relating to the
protection of POWs) dictate that the individual soldier must be distinguished from the state
that he represents, and must instead be protected as an individual, no longer representing a
threat to the detaining power. This is notwithstanding that such individual is a member of an
armed force engaged in a conflict against the detaining power.23

Combatant Status Detained At Guantanamo Bay: The Taliban and Al-Qaeda Detainees

As pointed out above the US intervention in Afghanistan satisfied the conditions set out in
GC common Article 2 for an 'international armed conflict'. At the time both Afghanistan and
the US were party to the GCs, while Al-Qaeda, as a non-state actor, was legally incompetent
to ratify the GCs. Initially the US administration argued that their lack of recognition of the
Taliban as the de jure ruling party in Afghanistan would deny the Taliban the right to claim
POW status under the GCs, although the their combatant commanders to treat all detainees

21
Mushkat, Roda. “Jus in Bello Revisited.” The Comparative and International Law Journal of
Southern Africa, vol. 21, no. 1, 1988, pp. 1–51. Jstor. www.jstor.org/stable/23247645. Accessed on
Dec 1, 2016 at 14:50.
22
Jensen, E. “Combatant status : it is time for intermediate levels of recognition for partial compliance”.
Virginia Journal of International Law 46, (2005-6), pg. 217.
23
Gillard, EC. “Private military companies: the status of their staff and their obligations under IHL”,
International Review of the Red Cross 88, (2006), pg. 4
 17

humanely. Instead, they classified all detainees as 'unlawful enemy combatants'.24 Later the
US administration had to concede that the GCs applied in all cases of armed conflict which
may arise between two or more of the high contracting parties, and the lack of de jure
recognition of the Taliban government was not relevant to the determination of combatant
status of the Taliban fighters. Finally in 2006 the US Supreme Court in Hamdan v Rumsfeld25
pronounced that the GCs did apply to all detainees held at Guantanamo Bay.

In particular, the administration maintained that 'the Taliban had not effectively distinguished
themselves from the civilian population in Afghanistan, nor had they conducted their
operations in accordance with the laws and customs of war ... instead, they had knowingly
adopted and provided support to the unlawful terrorist objectives of the Al-Qaeda'26.
According to Donald Rumsfeld, the Taliban 'did not wear distinctive signs, insignias,
symbols, or uniforms' and instead of seeking to distinguish themselves from the civilian
population they 'sought to blend in with the civilian non-combatants, hiding in mosques and
populated areas'. It was argued that their dark turbans did not constitute a recognisable
uniform distinguishing them from the civilian population. Moreover, the open carrying of
arms did not distinguish the Taliban from Afghan civilians (who habitually carry their arms
openly).27

Al-Qaeda members who are detained but who fail to show that they are either part of the
Taliban armed forces or a militia group which fulfils the requirements of GC III Article
4A(2), is protected civilian status as set out in GC IV. There is no 'intermediate status'
between combatants and civilians. Those detainees who fail to satisfy GC III combatant
status requirements will fall within the ambit of GC IV protected civilian status. In order to
claim protected civilian status, an Al-Qaeda member would need to show that he is 'not a
national of the party to the conflict under whose control he finds himself (i.e. the US or its
allied forces). However, the situation is less clear with respect to members of Al-Qaeda or
other terrorist groups captured in Afghanistan who are not Afghan nationals. In those cases
the applicability GC IV depends on their nationality as article 4(2) excludes from the
category of protected persons.28 'Nationals of a State which is not bound by the Convention
(...) nationals of a neutral State and nationals of a co-belligerent State (...) while the State of
which they are nationals has normal diplomatic representation in the State in whose hands
they are.'"" The only other possible category which has been suggested, particularly for the
non-Afghan members of the Taliban and Al-Qaeda, is that of mercenary. However, even if
some foreigners may have been members of the Taliban's armed forces, this alone does not
deny them or all other members of the Taliban and Al-Qaeda possible entitlement to
combatant status. Foreign nationality alone is not sufficient to deny combatants their status.

24
Wallach, E. “Afghanistan, Quirin, and Uchiyama: does the sauce suit the gander” Army Lawyer November,
(2003), pg. 2.
25
Hamdan v Rumsfeld [2004] US Dist LEXIS 22724, at 21-27.
26
Johns, F. “Guantánamo Bay and the annihilation of the exception”. September European Journal of
International Law 613, (2005), pg. 166.
27
Schindler. “International humanitarian law and internationalized internal armed conflicts “ International
Review of the Red Cross 22, (1982), pg. 255
28
Elsea, J. “Treatment of ‘battlefield detainees’ in the war on terrorism”, CSR Report, (2007), pg.33
 18

The stance taken by the US administration to classify all the detainees (both Taliban and Al-
Qaeda) as 'unlawful combatants', (a category not explicitly provided for in IHL), effectively
suspended the operation of the GCs and the protections they provide for detainees in times of
armed conflict.

Whatever the final analysis might reveal, GCIV requires high contracting parties to afford all
'who ... find themselves, in the case of conflict or occupation, in the hands of a party to the
conflict or occupying power of which they were not nationals' certain minimum standards of
treatment enshrined in both the GCs, and customary international law. While the detainees
may not be treated as combatants with full POW privileges, they are nevertheless entitled
under conventional and customary IHL to 'prompt notification of the particulars of any
charges; to present necessary evidence in their defence; to legal counsel and an interpreter;
right to petition against the finding and sentence.29

One of the first acts performed by newly elected US president Barak Obama after taking
office was to order the closure of the detention facility at Guantánamo Bay. Although
problems have arisen in regard to repatriating some of the detainees, this decision is none-
the-less to be welcomed. But it cannot turn back the clock on seven years of blatantly
unlawful detention in circumstances and conditions that constituted a flagrant violation of
international standards.

Of even greater significance is the fact that the foremost powers in the international
community ignored one of the fundamental principles of IHL. And this principle is that the
legitimate participants in an armed conflict should not be punished for mere participation.
This is not to say that all of the Critmo detainees were legitimate participants. Some could
well have been classified as mercenaries or spies whereas others could have been labelled as
'irregulars' falling outside the field of protection conferred by IHL. This applies particularly
to those participants who are not nationals of any of the parties to the conflict.

But this cannot distract from the fact that a number of detainees are members of the Taliban
or Al-Qaeda. It also does not detract from the fact that there is no legal basis in IHL for the
term 'unlawful enemy combatant'. Nor is there any basis for forfeiture of combatant status
along the lines presumed by the US government. On the other hand, the actions of the US
government in this regard have tended to cast the spotlight on the concept of combatant status
with the result that much research, discussion and debate on this particular issue has taken
place over the past few years.

It has also illustrated the dangers of auto interpretation since the US approach provides a
classic example of avoiding obligations under IHL. But it is submitted that the most
important consequence of Gitmo Bay is that it has created a fresh opportunity to examine

29
Cowling, Michael, and Shannon Bosch. “Combatant Status at Guantánamo Bay — International
Humanitarian Law Detained Incommunicado.” The Comparative and International Law Journal of
Southern Africa, vol. 42, no. 1, 2009, pp. 1–35. Jstor, www.jstor.org/stable/23253212. Accessed on
Dec 2, 2016 at 17:51
 19

combatant status. To a large extent this has necessitated stripping the concept of all the
mystique and complexities that have tended to surround it. This in turn reveals that the core
characteristic of combatant status is membership of an armed force recognised by IHL (not
the parties) as a participant in an armed conflict. Membership confers entitlement to
participate in hostilities and individual members acquire combatant status by reason of that
fact. 30

As pointed out above, combatants cannot be punished for mere participation. Those who are
not members of any participating force but who participate do not change their status to
combatant (albeit 'unlawful' or 'underprivileged') merely because they choose to participate.
They remain civilians but may be punished by the other side for mere participation -
irrespective of how they participate. As far as identification is concerned, although the
principle of distinction is one of the fundamental underlying principles of IHL, it must
nonetheless be placed in the context of modern warfare. The first point that can be made in
this regard is that, although the wearing of military-type uniforms is common practice
amongst national armed forces, it is not obligatory in terms of IHL. This is contrary to the US
position where the labelling of members of the Taliban as 'unlawful enemy combatants' has
been based upon the latter's alleged failure to wear military uniforms.31

30
See endnote 27
31
See endnote 28
 20

CHAPTER-6

CONCLUSION

Michael Ignatieff argues that “America’s entire war on terror is an exercise in imperialism”
and that its capacity “to shape outcomes in Afghanistan, still less to create a state, is
constrained by the way it won the war against Taliban”. More than any others these two
factors- the effect of US imperialism and overriding security concerns- threaten to undermine
international human rights and humanitarian law and attempts to create transitional justice
mechanisms in the fraught political and economic condition post-Taliban Afghanistan, as
well as pots Saddam Hussein Iraq.32

The lessons of other transitional society suggests that addressing criminal responsibility for
serious violations of international humanitarian law and ensuring respect for human rights
law is pivotal to creation of a stable, accountable government subject to rule of law. Without
appropriate legal and political mechanisms to address both past and ongoing atrocities in
Afghanistan, these objectives will remain elusive. Humanitarian crisis are then likely to
reoccur. As the ongoing struggle between completing security conceptions and humanitarian
unfolds, the age of rights must act as constant reminder of human dignity in facing dangers of
Age of terrorism.

Identification does play an important role in IHL. But this takes the form of distinguishing
between the military and civilians. In practical terms, this translates into an obligation on the
part of the combatants to carry arms openly thereby ensuring that they do not shield behind
civilians or feign civilian status. To do so is tantamount to a serious breach of IHL for which
participants may be punished. But it is important to emphasise that failure on the part of the
participant to distinguish himself from civilians will not result in forfeiture of combatant
status. Instead, such participant will be punished for the manner in which he participated.33

It is submitted that this approach not only simplifies the concept of combatant status, but also
renders it more capable of implementation in the field. It also significantly reduced any
opportunities for auto-interpretation whereby one of the parties to a conflict can subjectively
label the opposing side as 'unlawful enemy combatants' thereby avoiding the safeguards and
obligations imposed by IHL. It is hoped that a proper understanding of the fundamentals of
combatant status will ensure that the mistakes arising from detention of the Gitmo detainees
are not repeated in the future.34

32
Ignatieff, Michael. “ Nation Building Lite “ New York Times Magazine, (2002), pp 26, 28-29
33
Cowling, Michael, and Shannon Bosch. “Combatant Status at Guantánamo Bay — International
Humanitarian Law Detained Incommunicado.” The Comparative and International Law Journal of
Southern Africa, vol. 42, no. 1, 2009, pp. 1–35. Jstor, www.jstor.org/stable/23253212. Accessed on
Dec 1, 2016 at 17:59
34
Ibid
21