Home Archive for category "Armed Conflict" (Page 25)

The Taliban’s New “Code of Conduct”, Compliance with the Laws of War and POW status

Published on August 31, 2009        Author: 

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry…

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Has North Korea Terminated the Korean Armistice Agreement?

Published on July 24, 2009        Author: 

Seunghyun Sally Nam is 3rd Secretary for the Korean Peninsula Peace Regime Division at the Ministry of Foreign Affairs and Trade, Republic of Korea. She is writing in her personal capacity and her views do not necessarily represent those of the South Korean government.

In his recent post, Dapo Akande refers to a recent article by Gordon Chang in which Mr Chang argues that North Korea’s announcement that it is no longer bound by the 1953 Armistice Agreement means that the Korean War has resumed as a matter of law. The issue comes down to whether North Korea’s announcement that it ‘will not be bound by the armistice’ terminates the armistice or not. Gordon Chang makes his assertion based on the idea that the Korean armistice agreement is subject to termination by the announcement of either party. However, Article 62 of the Armistice Agreement states that the Armistice agreement is effective until it is expressly superseded either by mutually acceptable amendments and additions or provision in an appropriate agreement for a peaceful settlement. Article 61 also states that ‘amendments and additions to this Armistice Agreement must be mutually agreed by the Commanders of the opposing side’.

Gordon Chang mentions in his article that the U.N. Command, a signatory to the armistice, responded to North Korea’s argument by insisting that the Armistice is in force and by referring to the termination provision. However, the Korean Armistice Agreement does not have a termination provision. The two provisions which I mentioned in the above are the only provisions which regulate any ‘amendments and additions’ to the agreement. Read the rest of this entry…

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The Korean War has Resumed !! (Or so we are told)

Published on July 22, 2009        Author: 

Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice). Read the rest of this entry…

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The Application of Human Rights Treaties in Wartime

Published on December 12, 2008        Author: 

This year the EJIL has been marking the 60th anniversary of the Universal Declaration of Human Rights by publishing a series of articles on international human rights law. The international human rights movement was birthed in response to the atrocities during the second World War. It is therefore appropriate to examine the extent to which international human rights law, and international human rights treaties in particular, apply in time of armed conflict.

There are a number of key, overlapping, questions which need to be answered in considering the application of international human rights treaties in time of armed conflict.

  • What are the advantages of relying on human rights treaties in the context of armed conflicts?
  • Do human rights treaty obligations continue to apply in time of armed conflict?
  • To what extent do human rights treaties apply extraterritorially?
  • If human rights treaties apply, what is their relationship with international humanitarian law?

I discuss the first two questions below and will discuss the last two in a further post

Read the rest of this entry…

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