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Last Thursday, Mullah Muhammad Omar, the reclusive Afghan Taliban leader, issued a 7-page statement to the Afghan people. Published ahead of the Eid al-Fitr festival, the statement urged Taliban insurgents to avoid civilian losses.
Mullah Omar’s statement is the latest in a long succession of ‘instructions’ to Taliban fighters to avoid civilian casualties. In 2006, 2009 and 2010, the Taliban leadership published a succession of codes of conduct – known as ‘Leyeha’ – which, to varying degrees, have urged Taliban fighters to win over the hearts and minds of the population by protecting civilians.
Yet the statement from Mullah Omar came after a series of suicide bombings in Afghanistan took 63 civilian lives. It also came in the wake of the publication of the United Nations Assistance Mission in Afghanistan (UNAMA)’s mid-year report on the Protection of Civilians in Armed Conflict which found that anti-government elements were responsible for 80 percent of all civilian casualties in Afghanistan, in the first six months of this year.
According to UNAMA’s figures, anti-government elements in Afghanistan were responsible for the deaths of 882 civilians and the injuring of 1,593 others. The report also found that Improvised Explosive Devices (IEDs) placed by the Taliban remain the biggest threat to civilians. According to UNAMA, the majority of these IEDs are victim operated IEDs, with pressure-plate IEDs being the most common. These function effectively as anti-personnel landmines and are in and of themselves indiscriminate because they explode when they are driven or walked over, no matter whether the victim is a civilian or legitimate target.
What conclusions – if any – can be drawn from this correlation of facts?
One can only imagine that these recent figures are having a negative effect on the Taliban’s battle to win the hearts and minds of the Afghan population. In such a battle, it is crucially important for both sides to present themselves as the ‘protector’ of civilians and the employment of indiscriminate weapons by either side is a clear threat to this image.
Interestingly, it is clear from the UNAMA report that that the Taliban is reading the UNAMA reports on the Protection of Civilians in Armed Conflict. It recounts how on 5th February 2012, the Taliban produced a public reply to UNAMA’s 2011 Annual Report on the Protection of Civilians in Armed Conflict arguing that it was “one-sided” and seeking to correct the facts and figures which it alleged were inaccurate (see p17 of UNAMA Report).
On this basis, is it possible that the statement from Mullah Omar is a response to the UNAMA report and an attempt by the Taliban leadership to reverse these negative trends? Or is that too optimistic an interpretation of the situation? This post explores these questions further and finds that their clarification likely partly lies in the Taliban’s definition of ‘civilian’.
Relevant passage from the Mullah Omar’s address
To set the analysis in context, it is helpful first to set out the full text of the relevant paragraph of Mullah Omar’s address. This states as follows:-
Our Jihad and sacrifice will bear fruitful results if we wage jihad in the manner the holy prophet (peace be upon him) and his companions (may Allah be pleased with them all) have waged it.
25. Pay close attention to the protection of life, property and honor of your miserable people. Behave with them with a behavior, being full of sympathy, love, respect and compassion in the footstep of the lofty characteristics and morals of the holy prophet (peace be upon him). Obtain the hearts of the people by the power of noble morals; strictly desist from the harassment of people and inform your chiefs about those who harass common people.
26. During Jihadic operations, employ tactics that do not cause harm to life and property of the common countrymen. The instructions given to you for the protection of civilian losses are, on you, a religious obligation to observe. Any violation readily incurs loss in this world and in the world to come. Therefore, I urge you emphatically to be careful about the civilian losses and take this on yourselves as an explicit responsibility, disregard of what the enemy may be doing to flare up civilian casualties during battles.
27. Organize your Jihadic activities in the framework of the rules of the general bye-law of the Mujahideen of the Islamic Emirate. Strictly desist from interfering in the affairs of each other in order to ensure effective progress of work; to bring about order and to obtain goals smoothly. All should focus on their own responsibilities, and should perform the task devolved on them.
28. Obey your chiefs, and make it part of your daily routine to recite the holy Quran, keep to the remembrance of Allah, study the life history of the Holy prophet (peace be upon him) and recite his prayers and read books for the uplift of your knowledge.
Appeal to the hearts and minds of the civilian population
It is noteworthy that Mullah Omar’s statement urges the Taliban to “obtain the hearts of the people”. This confirms the Taliban’s deliberate strategy to win the respect and support of the civilian population. Its strategy in this regard is explicitly designed to respond to the counter insurgency tactics which have been employed by NATO troops and the Afghan government in Afghanistan.
Both the Taliban and the Afghan government together with ISAF are doing their best to persuade the Afghan people that they are the party which is the best at providing order and a sense of security to the local population. In doing so, both the Taliban and the Afghanistan government supported by ISAF are competing for the “right and ability to win the hearts, minds and acquiescence of the population” (Kilcullen, Counter Insurgency, p29).While much of this competition is based on the provision of trustworthy governance, it is also crucially important for both sides to present themselves as the ‘protector’ of civilians. The employment of indiscriminate tactics by either side is a clear threat to this image.
Mullah Omar’s recent address is not the first time that the Taliban has appealed to its fighters to act in ways which are intended to have the effect of winning public sympathy and support. In 2006, Mullah Omar released a rulebook – called the Layeha – which included 29 rules relating to military discipline and the chain of command. While the 2006 rule book does not explicitly prohibit killing civilians, the 21st rule seems to imply that such a rule exists. It states: ‘ anyone who has killed civilians during the Jihad…[will] not be accepted into the Taliban movement”.
When the rulebook was reissued in May 2009, it had almost completely been rewritten into a much longer document. One of the purposes of its additions and amendments seem to have been to address the U.S. military’s new counter insurgency strategy (see commentary here and here, p169-171).
The cover of the book of rules read: “Give a special place to your friends and your people in your hearts… Extend a strong bond of loyalty and brotherhood to them so that the enemy is unable to realize its objective of dividing you”. The 2009 rulebook also explicitly instructs Taliban fighters to attempt to win the support of the local population, stating:-
Mujahideed should behave well with the general public and make efforts to bring their hearts closer to them.
The Taliban updated the rulebook againin May 2010, only slightly amending the 2009 version. This latest version seems to have also been partly designed to encourage the Taliban fighters to win the hearts and minds of the civilian population. It contains the instruction:-
The Taliban must treat civilians according to Islamic norms and morality to win over the hearts and minds of the people.
Last Thursday’s statement from Mullah Omar does not fall into the same category as the Taliban’s earlier rulebooks. The section on civilian losses is only a small part of a much longer statement which is mainly addressed to the Afghan people.
The Taliban’s definition of civilians
When looking at Mullah Omar’s statement, the first point an international lawyer will notice is its failure to make any reference at all to international humanitarian law. Instead Mullah Omar relies on religion and ‘the general bye-law of the Mujahideen of the Islamic Emirate’ for his instructions. He calls the protection of civilians as a ‘religious obligation’. This follows the trend of the Taliban’s earlier codes of conduct issued in 2006, 2009 and 2010 (see above) which rely on Islamic Sharia as the source of their rules.
It is also noteworthy that the statement from Mullah Omar last Thursday fails to clarify the Taliban’s definition ‘civilians’ except by using the apparently analogous – but equally unhelpful – term ‘common countrymen’.
It is argued below that herein lies the answers to the questions posed by this post. For it is noted that one of the key concerns of the recently published UNAMA report is the Taliban’s definition of civilian. According to UNAMA, the Taliban employs a narrower definition of ‘civilian’ than is justified by international humanitarian law. In particular, the UNAMA report finds that the Taliban has claimed responsibility for numerous targeted attacks of civilian government officials, tribunal elders, government workers, contractors, drivers, translators and other civilians. It has also included such civilians on lists that it has published of individuals to kill or capture.
Confirming the Taliban’s overbroad approach to targeting in this regard, the UNAMA report refers to an October 2011 statement from the Taliban which identified a broad range of civilians as targets (see p v of the UNAMA report). This states:-
The Islamic Emirate wants to warn every person who wants to participate in this so-called Loya Jirga [a ‘loya jirga’ is a grand assembly of regional chiefs and tribal leaders convened to discuss important political matters] that such traitors will be pursued by Mujahideen of Islamic Emirate in every corner of the country and will face severe repercussions. The country’s trustworthy scholars have passed a decree in this regard and every participant of this convention shall be charged with treason if caught. The Islamic Emirate also calls on its brave and courageous Mujahideen to target every security guard, person with intention, participant and every follower of this convention.
By doing so, the Taliban made clear that it would target all individuals who participated in the government-convened Loya Jirga, irrespective of their precise role in the conflict.
Likewise the UNAMA report remarks that on 2 May 2012, the Taliban announced that their Al-Farooq Spring offensive would specifically aim to kill “all those people who work against the Mujahideen”, including high ranking government officials, members of Parliament, High Peace Council members and contractors (see p16 of UNAMA report).
Both these missives encourage clear breaches of the international humanitarian law which applies to non-international armed conflicts.
The definition of civilian in non-international armed conflicts
The armed conflict inAfghanistan is accepted currently to be a non-international armed conflict. The Afghan government, assisted by the ISAF forces, are fighting against the Taliban and the other anti-government groups. The international humanitarian law which applies to the armed conflict in Afghanistan is recognised to be Common Article 3 and Additional Protocol II (APII).
Before looking at how the term ‘civilian’ should be interpreted in non-international armed conflict, it is helpful to briefly see how the term is defined in international armed conflicts. In international armed conflict, the term ‘civilian’ is defined negatively as anyone who is not a member of the armed forces. Article 50 of Additional Protocol I (API) states:
A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1); (2), (3) and (6) of the Third [Geneva] Convention and in Article 43 of this Protocol.
Together Articles 4A(1); (2), (3) and (6) of the Third [Geneva] Convention and Article 43 of API set out the various categories of individuals which fall into the definition of ‘combatant’ in international armed conflicts.
There not only no equivalent definition of Article 50 of API in Common Article 3 and AP II and no equivalent of Articles 4A(1); (2), (3) and (6) of the Third [Geneva] Convention and Article 43 of API. The closest one comes to an equivalent provision is Article I of APII which refers to the “armed forces” of the High Contracting Party, “dissident forces” and “other organized armed groups”. As a result, a similar ‘negative’ formulation of the notion of ‘civilian’ is difficult.
A lack of guidance in this regard has resulted in extended discussions about which individuals should qualify for civilian status in non-international armed conflicts.
Yet uncertainties in this regard have related to the ability of a State’s armed forces to target members of an armed opposition group. In particular, the wording of APII has raised the following questions: Should members of armed opposition groups always be regarded as having civilian status, and only lose that status when they directly participate in hostilities? Or should members of armed groups be seen to be civilians who are continuously participating in hostilities as a result of their membership in such groups? Or should members of armed groups who are continuously participating in hostilities never be considered to be civilians? And what does ‘membership’ of an armed group entail? Although these questions have been looked at in detail by the ICRC in its Interpretative Guidance on the Notion of Direct Participation in Hostilities, State practice in relation to these questions remains unclear and inconsistent(see ICRC Customary International Humanitarian Law, 2005, Vol I, p19 and ICRC Interpretative Guidance on the Notion of Direct Participation in Hostilities, 2009, p27-34).
But throughout the ICRC’s extensive consultation on the notion of ‘civilian’ in non-international armed conflict, there was consensus on the question of the ability of an armed group to target members of a High Contracting Party’s armed forces. This is the most relevant issue for this post, because it determines which individuals are legitimate targets for the Taliban.
Throughout the ICRC’s consultation on this matter, it was clear that there is a broad agreement that members of State armed forces in non-international armed conflicts do not qualify as civilians (See ICRC Customary International Humanitarian Law, 2005, Vol I, p19 and ICRC Interpretative Guidance on DPH, p27 and 30-31). As a result, State armed forces may be lawfully targeted by armed opposition groups under international humanitarian law even though such acts will remain illegal under domestic law.
This leads to the question of who should be included in the definition of members of State forces. The travaux préparatoires to APII make clear that the term “armed forces” was chosen because of its capacity to cover a broader range of armed actors than those within the regular armed forces. The Commentary to APII states that the term was intended to cover any members of the national guard, customs, or police forces who assume the function of the armed forces (see para 4462 of Commentary to APII). In clarifying the scope of this provision, the ICRC has taken the view that the term State “armed forces” includes “all organized armed forces, groups or units under a command responsible to a State party to the conflict” (see here).
Although there may be exceptions for particular individuals, in general government workers, tribal elders, community leaders and security guards will not fall within the definition of “armed forces” and will therefore considered to be ‘civilians’ in non international armed conflicts (for further reading on private security guards having civilian status, see article by Lindsay Cameron, p582-594).
Against this legal framework, it is clear that the Taliban leadership’s blanket instruction to its fighters to target such individuals is a breach of international humanitarian law and may amount to a war crime under Article 8(2)(e)(i) of the Rome Statute.
In the light of this analysis, Mullah Omar’s instruction last week to the Taliban to protect ‘civilians’ is not as optimistic a development for the protection of civilians in Afghanistan as it might at first seem. For despite urging Taliban fighters to avoid ‘civilian losses’, Mullah Omar’s use of the word ‘civilian’ is unlikely to mean what is generally understood in international humanitarian law.
And the broader lesson of this post is that when reviewing codes of conduct and statements from armed groups, it is important to check their definitions.
For further reading on counter insurgency theory, see Counter Insurgency by David Kilcullen, 2010
For more reading on the definition of ‘civilians’ in non-international armed conflict see ICRC’s Interpretative Guidance on Direct Participation in Hostilities here. For further commentary on the ICRC’s interpretative guidance, see here and here (scroll down to vol 42, no 3 of the Journal of International Law and Politics).
For further reading on the status of security guards, see article by Lindsay Cameron ‘Private military companies: their status under international humanitarian law and its impact on their regulation’, International Review of the Red Cross, Vol 88, No. 863, September 2006.
For further reading about the issuance of codes of conduct by armed groups, see article by Sandesh Sivakumaran the July 2011 volume of the International Review of the Red Cross: “Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war”.