There have been objections to their use, principally on the ground that they have a tendency, like anti-personnel land-mines, to kill people long after the conflict is over. Reports from Kosovo and elsewhere have confirmed the general seriousness of the problem. On the other hand, some evidence from the Afghanistan campaign suggests that cluster bombs were an effective weapon. As the law stands, there has been no firm agreement to outlaw cluster bombs, and while they cannot be said to be illegal per se, their use does raise questions regarding their compatibility with fundamental principles of the laws of war.
They are certain to be the subject of further pressures to limit or stop their use, or to ensure more effective safeguards against later accidental detonations. A second issue concerns the use of bombing in the hunt for Taliban and al-Qaeda personnel, following the fall of the Taliban regime in early December In the preceding phase, bombing had been used primarily in support of Northern Alliance frontal operations aimed at capturing the main Taliban-held cities.
Once this was achieved, a good deal of the bombing was directed against remnant Taliban and al-Qaeda forces and their leaders. Several incidents were reported in the press in which those killed were neither. The reports drew attention to the difficulty of distinguishing between civilians and these forces.
They also raised the question, of broader significance in anti-terrorist wars: to what extent is bombing an appropriate form of enforcement once a state is, to a greater or lesser degree, under the control of a government that is opposed to the terrorists? At that point, to what extent can the focus be transferred to other forms of police and military action that may be less likely than bombing to cause civilian casualties? One long-standing prohibition in warfare is the rule against use of gas and bacteriological methods of warfare.
The US repeatedly expressed concern that al-Qaeda might be preparing to use such methods in terrorist attacks. In addition, there were situations in which there could have been pressures for the US to use gas. When, in , the US ratified the Geneva Protocol, it indicated that it considered that certain uses of riot-control agents in armed conflict did not violate the protocol. In early December , Rumsfeld was asked at a press conference if the US might use gas in the hunt for Taliban and al-Qaeda personnel in mountain caves.
Well, I noticed that in Mazar, the way they finally got the dead-enders to come out was by flooding the tunnel. And finally they came up and surrendered, the last hard core al-Qaeda elements. And I guess one will do whatever it is necessary to do. Prisoners From late November , the status and treatment of prisoners taken in the war on terror became a major international controversy. Within the Pentagon, if not necessarily at the political level, it had been recognised early on that the prisoner issue could be difficult.
A suspected terrorist captured by US military personnel will be given the protections of but not the status of a PoW. Initially, international attention focused on one event: the killing of a large number of Taliban and al-Qaeda prisoners following the revolt at Qala-e Jhangi Fort near Mazar-e Sharif in the period 25 November-1 December Even before the prisoners were taken at Kunduz at around the time of its fall on November, it was evident that the surrender and imprisonment of the non-Afghan forces fighting alongside the Taliban would be extremely difficult.
At the same time, there was very little sign of serious preparation for handling prisoners, large numbers of whom were likely to be particularly dangerous. The precise chain of events leading to the revolt has yet to be established, but the causes appear to include the following heady mix: these were particularly fanatical soldiers, for whom the whole concept of surrender would be anathema; the arrangements for receiving, holding and processing the prisoners appear to have been ad hoc and casual; a number of prisoners had not surrendered all their weapons, and by not having laid down their arms they failed to meet the requirements for PoW status; the prisoners were held in a place where there was a large store of weapons, to which they gained access; and some reports suggest that the prisoners feared that they were about to be killed, so had nothing to lose by revolt.
When asked at a press conference whether the suppression of the prison revolt at Mazar-e Sharif had been proportionate, Rumsfeld indicated bafflement:. It might also persuade the people who are still in there with weapons, killing each other and killing other people, to stop doing it. The revolt at Qala-e Jhangi Fort was a desperate struggle in which not only many prisoners, but also a number of Northern Alliance troops in charge of the fort, died.
US bombing, and sharp-shooting by UK special forces, played a part in the defeat of the uprising. Public discussion in the UK and elsewhere has focused on the events at the fort, including the question of whether the force used to quell the rebellion was excessive.
If the situation was as desperate and threatening as reports indicated, the use of force is hardly surprising. Public discussion should more usefully focus on how prisoners should be received and dealt with. Events at the fort raised the issue of whether the US and, in particular, the Northern Alliance, had a clear policy for treating prisoners, including the foreign fighters.
The real cause of the disaster was probably a failure to think the issue through before the prisoners arrived at the fort, and especially the failure to disarm all prisoners. Other reports of maltreatment and deaths of prisoners elsewhere confirm that the overall approach of the Northern Alliance was defective. In particular, by late December there had been numerous reports of Afghan captors beating their detainees, and the ICRC was reported as expressing concern that it had been able to register only 4, of the 7, prisoners which the US said it and its Afghan allies had in custody.
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Coalition members have expressed different views on this. In his Pentagon press briefing on 30 November, Rumsfeld indicated—in general terms, not in connection to the prisoner question—that the US does have influence with the forces with which it operated in Afghanistan:. We have a relationship with all of those elements on the ground. We have provided them food.
We have troops embedded in their forces and have been assisting with overhead targeting and resupply of ammunition. The question of the status and treatment of al-Qaeda fighters taken prisoner in Afghanistan, arguably distinguishable from the status and treatment of Taliban fighters taken prisoner, involves the important but difficult issue of whether or not such combatants are considered lawful.
The key factor in determining the lawfulness of a combatant, and therefore the entitlement to participate directly in hostilities, is the affiliation of the combatant to a party to the conflict. Lawful combatants comprise the organised armed forces including militias and volunteer corps of a state or otherwise recognised party to a conflict. They also include members of certain other militias and volunteer corps, including those of organised resistance movements, belonging to a party to the conflict, provided that they meet certain criteria: they must be under a responsible command system; wear a fixed distinctive sign; carry arms openly; and conduct their operations in accordance with the laws of war.
Members of regular armed forces who meet such criteria may well be lawful combatants even if the regime that they serve is not recognised as the lawful government of the state. Lawful combatants cannot be punished for the mere fact of having participated directly in hostilities, but they can be tried for any violations of international law, including the laws of war, they may have committed.
What is the status of those many people who are involved in hostile activities in various ways, but who fail to meet the above criteria? See Richard R. Many belligerents failing to meet one of the criteria were viewed as entitled to PoW status, but not all were. Howard S. Such combatants can face penal sanctions for participating directly in hostilities and for other acts they may commit, and they do not have the right to PoW status; but they do retain a claim to certain fundamental guarantees regarding their detention and any judicial proceedings against them.
The distinction between lawful and unlawful combatants is important. The possibilities that the proceedings could take place after a trial for an offence, and also in camera in the interest of state security, are not excluded. In US official manuals the general principle that Article 5 tribunals must be held is not contested. The fact that certain prisoners may be viewed as unlawful combatants, and may after a tribunal has so determined be denied PoW status, does not mean that they have no legal rights at all.
A strong argument can be made that, whether or not they are formally entitled to such rights, they should have certain of the basic safeguards accorded to PoWs.
Furthermore, Article 75 of the Geneva Protocol I elaborates a range of fundamental guarantees that are intended to provide minimum rules of protection for all those who do not benefit from more favourable treatment under other rules. Any state with a claim to act legally in international relations, even if not itself a party to the Geneva Protocol I neither the US nor Afghanistan is a party , must take the rules in Article 75 seriously as the minimum standards, especially as these provisions are viewed as customary law. While denying that there was an armed conflict whether international or otherwise, and strongly resisting any granting of PoW status to detainees and convicted prisoners, the UK did come to accept that international standards had to apply to their treatment.
The UK Commission of Inquiry whose report in led to this conclusion is an interesting example of asserting the wider relevance, even in an internal conflict, of certain international legal standards, including some from the main body of the four Geneva Conventions.
This was despite the existence of doubts and ambiguities as to whether these forces met all the criteria in Article 4 of the Geneva Convention III. However, there was a significant exception in respect of terrorism. There was provision for establishing Article 5 tribunals to determine, in doubtful cases, whether individual detainees were entitled to PoW status.
Those not entitled to such status were to be transferred to the South Vietnamese authorities. Both were reprinted in American Journal of International Law , vol. The quotation is on p. US policy regarding prisoners taken in Afghanistan appeared initially to leave only limited room for application of the rules of protection contained in the laws of war. The, as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention.
We have indicated that we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate, and that is exactly what we have been doing. In cases where there is doubt they have the right under Article 5 to have their status determined by a tribunal. In the event, ICRC officials started interviewing detainees at Guantanamo on 18 January, and were able to establish a permanent presence there.
On 7 February, the White House, in the first major policy statement on the issue, announced that Taliban prisoners were covered under Geneva Convention III, but al-Qaeda members were not. While neither group was accorded full PoW status, the White House gave detailed assurances about their treatment. Two considerations contributed to the US determination not to classify as PoWs prisoners taken in Afghanistan: the first related to conditions of detention of prisoners, and the second to the conduct of judicial proceedings.
On conditions of detention, the Geneva Convention III famously states that PoWs are only obliged to give name, rank, date of birth and personal or serial number.
Desperate Lands - The War on Terror Through the Eyes of a Special Forces Soldier (Hardcover)
The US was anxious to obtain considerably more information from them, although whether a different classification actually improves the prospects of securing accurate information is debatable. As regards judicial proceedings, from early on in the war, the US reportedly intended to prosecute a number of al-Qaeda and Taliban leaders, including Osama bin Laden if captured. Such procedures, US officials feared, could provide opportunities for al-Qaeda suspects and their lawyers to prolong legal processes and attract publicity. There was also concern that in cases involving defendants with no documents and no willingness to collaborate with any of the procedures, and where evidence might be largely based on intelligence sources, it could be difficult to provide evidence that met high standards of admissibility, and equally high standards of proof of direct personal involvement in terrorist activities.
Further, al-Qaeda might learn valuable information, for example, about its vulnerability to intelligence gathering, from evidence in open court. In addition, following the normal US military procedures for appeals was seen as posing problems. In certain other respects, too, there could be difficulties in treating some of the prisoners as normal PoWs. For example, a practice that is normally pursued after a war—releasing and repatriating prisoners—is complicated in this case by three considerations.
Third, their countries of origin might refuse to accept them back, except perhaps as prisoners. It also contains some extremely brief provisions for humane conditions of detention, and provides for the Secretary of Defense to issue detailed regulations on such matters as the conduct of proceedings of the military commissions.
Federal Register , Washington DC, vol. Roosevelt, Proclamation No. One test of the detailed regulations, which had not been issued at the time of writing, will be whether the procedures of the military commissions conform with the ten recognised principles of regular judicial procedure outlined in Article 75 4 of Geneva Protocol I. Overall, the US handling of questions relating to the treatment and status of prisoners, especially those under Northern Alliance control, has caused widespread concern and criticism. The principles briefly indicated in the above-mentioned USAF document of 21 September were not consistently followed, and practical arrangements, especially around the time of the rebellion at Mazar-e Sharif, were inadequate.
Although many key US positions were defensible, especially that certain prisoners might not qualify for PoW status, aspects of US policy and procedures were poorly presented, and in some cases did not appear to be fully thought-out. The prisoner issue—always sensitive anyway—was especially significant in this war: if the coalition was perceived to have treated prisoners inhumanely, or to have regarded their status and treatment as being in an international legal limbo, there would be risks of a general weakening of the prisoner regime, including for any coalition personnel taken prisoner in the ongoing war on terrorism.
The handling of this issue was a potential threat to coalition unity. The controversies over the prisoner question had a special resonance because of the concern of other countries that the US had been moving towards unilateralism generally, on a wide range of matters: in this perspective, fairly or unfairly, the US reluctance to accept the full application of the Geneva Convention III on PoWs to those particular prisoners was seen as one more example of a selective approach to international law.
The White House statement of 7 February, while not answering all concerns, provided reassurance that US polices would follow provisions of the Geneva Conventions. Bush administration policies on these laws-of-war issues have evolved in a generally sensible direction. However, neither the United States nor its critics have shown a clear understanding of how the laws of war should be applied to military counter-terrorist operations.
This is in no small part because the application of those laws is complicated, as a return to the three questions set out at the beginning of this essay shows:.
Where anti-terrorist operations have the character of civil war, the parties must apply, as a minimum, the rules applicable to civil wars. They may differ from the provisions for both international and non-international armed conflict. Recognising that there are difficulties in applying international rules in the special circumstances of anti-terrorist war, the attempt can and should nevertheless be made to apply the law to the maximum extent possible. This conclusion is reinforced by decisions of commissions of inquiry, a resolution of the UN Security Council, some practice of states and considerations of prudence.
However, in an anti-terrorist war, as in other wars, there are likely to be certain individuals who do not meet the criteria. Such individuals, for example, members of a terrorist organisation, may present special problems as prisoners, and may pose a continuing threat even after the end of a war.
The standard presumption outlined in treaty law and in US military manuals is that such people should be accorded the treatment, but not the status, of a PoW until a tribunal convened by the captor determines the status to which the individual is entitled. In cases where it is determined that they are not PoWs, there are certain fundamental rules applicable to their treatment, including those outlined in Article 75 of Geneva Protocol I.
Any prisoner, whether or not classified as a PoW, can be tried for offences, including those against international law, that were committed prior to capture.
Desperate Lands: The War on Terror Through The Eyes of a Special Forces Soldier
There are ample grounds for questioning whether military operations involving action against terrorists constitute either a new, or a wholly distinct, category of war. The coalition operations in Afghanistan, and the larger war against terrorism of which they are a part, are not completely unlike earlier wars. Many forms of military action and issues raised are similar to those in previous military operations, and concern issues addressed by the laws of war.
Events in Afghanistan have confirmed that there are particular difficulties in applying the laws of war to anti-terrorist operations. A war that has as a fundamental purpose the pursuit and bringing to justice of people deemed to be criminals involves many awkward issues for which the existing laws of war are not a perfect fit.
The use of proxies in an anti-terrorist war risks creating a situation in which major powers are at the mercy of their local agents, whose commitment to the laws of war may be slight. Despite such problems, treating, or appearing to treat, the law in a cavalier manner risks creating new problems.
If a major power is perceived as ignoring certain basic norms, this may have a negative effect in a coalition, or on enemies. It may also affect the conduct of other states in other conflicts. In that wider sense, the principle of reciprocity in the observance of law retains its value. There has been no serious suggestion that the existing legal framework can or should be abandoned, and no proposals for alternative detailed rules. I salute Steven Mattoon for his Dedication and Service to our Country and for sharing this fascinating story with me.
I look forward to his next coming novel. A portion of the book proceeds will go to the: National Ranger Memorial Foundation. His email is: stevemattoon gmail. Army fighting the Taliban. A glimpse of the horror, anger, fear, camaraderie and a first hand look of the exceptional difficulties, and emotional challenges of Infantry Airborne soldiers face in battle.
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Winner Sundance Film Festival. Subscribe in a reader. Older Posts Home. Subscribe to: Posts Atom. Author - Regulo Zapata Jr. About the Author Former U. Regulo Zapata Jr, U. Army Retired joined the Special Forces in Since then he has participated in numerous operations in several countries.
Regulo Zapata Jr.
Desperate Lands: The War on Terror Through The Eyes of a Special Forces Soldier
He enjoys reading other books on non-fiction or fiction, thrillers, action, adventure, horror, suspense, crime, drama, etc If you know of a good book to read and share The true story comes at a time when our nation has divided feelings and opinions about the war-a division that exists among both government leaders and the American people. These pages offer a different perspective-that of the lower enlisted soldiers-reflecting their personal experience in combat zones in Africa and Afghanistan as they witness and experience the fog of war.
Here are true stories-of sacrifice, bravery, excitement, horror. Tags afghanistan , africa , americanhistory , army , cia , desperatelands , gihadist , greenberets , islam , middleeast , militaryhistory , muslim , navyseals , pakistan , qatar , regulozapata , specialforces , specialoperations , taliban , terrorism , terrorist , and war. Add a reference: Book Author.