VI. Legal Standards

The parties to the armed conflict in Afghanistan are bound by international humanitarian law (the laws of war). These include the forces of the Afghan government, NATO, the US and other coalition members, and the Taliban and other insurgent groups.

International humanitarian law imposes upon warring parties legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. It is applicable to all situations of armed conflict, without regard to whether the conflict itself is legal or illegal under international law, and whether those fighting are regular armies or non-state armed groups. Individuals who commit serious violations of international humanitarian law with criminal intent can be prosecuted for war crimes before national or international courts.

Under International humanitarian law, because the conflict in Afghanistan is between states and non-state armed groups, it is considered a non-international armed conflict. The First Additional Protocol of 1977 to the Geneva Conventions (Protocol I),68 which provides the most detailed and current codification of the conduct of hostilities during international armed conflicts, is thus not directly applicable to the fighting in Afghanistan. Nevertheless, many provisions of Protocol I have been recognized by states, including the United States, to be reflective of customary international law.69 Thus the legal analysis applied in this report cites Protocol I as an important codification of customary law rather than as a treaty obligation. Customary humanitarian law as it relates to the fundamental principles concerning the conduct of hostilities is now recognized as largely the same whether it is applied to an international or a non-international armed conflict.70

The principle of distinction is the keystone of the law regulating conduct of hostilities. It requires parties to a conflict to distinguish at all times between combatants and civilians. Operations may only be directed against military objectives, and civilians and civilian objects may not be deliberately attacked.71

Military objectives are members of the armed forces, other persons taking a direct part in hostilities for the duration of their participation, and “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”72

International humanitarian law also prohibits indiscriminate attacks. These are attacks of a nature to strike military objectives and civilians or civilian objects without distinction.73 Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use means that cannot be directed at a specific military objective.74

Also prohibited are attacks that violate the principle of proportionality because they are expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive compared to the concrete and direct military advantage anticipated from the attack.75

In the conduct of military operations, constant care must be taken to spare the civilian population and civilian objects from the effects of hostilities. Parties to a conflict are therefore required to take precautionary measures with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects. These precautions include:

  • Doing everything feasible to verify that the objects to be attacked are military objectives and not civilians or civilian objects or subject to special protection.
  • Taking all feasible precautions in the choice of means and methods of warfare.
  • When circumstances permit, giving effective advance warning of attacks which may affect the civilian population.
  • When a choice is possible between several military objectives for obtaining the same military advantage, carrying out the attack that may be expected to cause the least danger to civilian lives and civilian objects.76

International humanitarian law does not prohibit fighting in urban or residential areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. These include:

  • Avoiding locating military objectives within or near densely populated areas.
  • Endeavoring to remove the civilian population from the vicinity of military objectives.77

As noted at the start of the chapter above on Taliban “shielding,” international humanitarian law prohibits belligerents from using civilians to shield military objectives or military operations from attack. “Shielding” refers to intentionally using the presence of civilians to render certain points, areas, or military forces immune from military attack.78 Taking over a family’s house and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of using “human shields.” The prohibition on shielding is distinct from the requirement that all warring parties take “constant care” to protect civilians during the conduct of military operations.79

68 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978.

69 See, for example, Yorem Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, (Cambridge: Cambridge University Press, 2004) pp. 10-11.

70 One important difference relates to reprisals, which are permitted in very limited circumstances during international armed conflicts but not in non-international armed conflicts.

71 Protocol I, art. 48.

72 Ibid., arts. 51(3), 52.

73 Ibid., art. 51(4).

74 Ibid., art. 51(4)(a,b).

75 Ibid., art. 51(5)(b).

76 Ibid., art. 51.

77 Ibid., arts. 57, 58.

78 Protocol I, art. 57(7).

79 Protocol I, Arts. 57, 58.