Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict

Air Force Law Review, Spring, 2004 by Joseph P. Bialke

Admittedly, the 1949 Geneva Conventions, and other international laws of armed conflict, do not specifically envisage an armed conflict resembling the armed conflict against al-Qaeda continuing in Afghanistan and elsewhere across the globe. An asymmetric international armed conflict where one party (the Taliban, a de facto state) sponsors and partially incorporates members of a global stateless organization (the al-Qaeda) that directs relatively independent factions to engage in massive and worldwide suicidal terrorism against protected civilian populations, is a fairly new paradigm. Regardless of these atypical attributes of de facto-state sponsored international terrorism, determining the legal status of captured combatant Taliban and al-Qaeda members in accordance with existing LOAC remains a matter of relatively simple analogy.

The unconventional operations and attacks of al-Qaeda and the Taliban in armed conflict are much more dangerous and lethal to protected noncombatant civilians than has been seen historically with saboteurs, spies, guerillas, and other typical unlawful combatants who mask themselves perfidiously as protected civilians. In contrast to merely hiding among protected civilian noncombatants illegally, al-Qaeda has squarely targeted them and has attempted to maximize civilian casualties with the apparent approval of the Taliban. Nonetheless, al-Qaeda and Taliban behavior of exploiting civilian disguise in armed conflict unlawfully is related closely to the conduct of the types of civilian-attired unlawful combatants referenced above. Neither group is entitled to POW status upon capture.

Moreover, the novel and illegal manner in which al-Qaeda and the Taliban wage war bears little if any similarity to how lawful combatants (who would be granted POW status upon capture) conduct military operations. During the global armed conflict ongoing in Afghanistan and elsewhere throughout the world, al-Qaeda and Taliban combatants are much more representative of war criminals than they are of honorable, law-abiding armed forces. It follows that members of al-Qaeda and the Taliban are unlawful combatants, rather than lawful combatants, and therefore are not entitled to POW status upon capture. Further, al-Qaeda and Taliban detainees should be prosecuted, when appropriate, for substantiated violations of LOAC.

B. The Taliban and the Four Criteria of Lawful Belligerency

1. The Geneva Conventions Apply to the Taliban as the De Facto Government of Afghanistan

The Taliban was the primary faction fighting in a civil war within the failed state of Afghanistan from the mid to the late 1990s. Taliban militant extremists loosely controlled the majority of Afghani territory from 1996 to 2001 as a de facto regime. This is despite the fact that neither the United Nations nor the League of Islamic States recognized the Taliban regime as the de jure government of Afghanistan, nor did the rest of the world--only three regional Islamic countries diplomatically recognized the Taliban as the legitimate government of Afghanistan: Saudi Arabia, Pakistan, and the United Arab Emirates. These three countries each severed diplomatic ties with the Taliban during the weeks following al-Qaeda's terrorist attacks of September 11, 2001 and preceding the U.S.-led coalition international armed response in the exercise of their inherent fight of collective self-defense.