Conflict in Afghanistan II PDF
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Conflict in Afghanistan II Volume 93 Number 881 March 2011 V Volume 93 Number 881 March 2011 o Part 2: Law and humanitarian action lu m e Interview with Ms Fatima Gailani 93 N President of the Afghan Red Crescent Society u m b Has the armed conflict in Afghanistan affected the rules on the er 8 conduct of hostilities? 81 M Robin Geiss and Michael Siegrist a rc h International law and armed non-state actors in Afghanistan 2 0 1 Annyssa Bellal, Gilles Giacca and Stuart Casey-Maslen 1 The Layha for the Mujahideen: an analysis of the code of conduct for the Taliban fighters under Islamic law Muhammad Munir Annex: The Islamic Emirate of Afghanistan. The Layha [Code of Conduct] For Mujahids Combatants, not bandits: the status of rebels in Islamic law Sadia Tabassum Between a rock and a hard place: integration or independence of humanitarian action? Antonio Donini The International Committee of the Red Cross in Afghanistan: C reasserting the neutrality of humanitarian action o Fiona Terry n The protective scope of Common Article 3: more than meets f the eye l i Jelena Pejic c t i n A f g h a n i s t a n I I Humanitarian debate: Law, policy, action Conflict in www.icrc.org/eng/review Cambridge Journals Online Afghanistan II For further information about this journal please go to the journal web site at: ISSN 1816-3831 http://www.journals.cambridge.org/irc Editorial Team Editor-in-Chief: Vincent Bernard The Review is printed in English and is Editorial assistant: Michael Siegrist published four times a year, in March, Publication assistant: June, September and December. Claire Franc Abbas Annual selections of articles are also International Review of the Red Cross published on a regional level in Arabic, Aim and scope 19, Avenue de la Paix Chinese, French, Russian and Spanish. CH - 1202 Geneva, Switzerland The International Review of the Red Cross is a periodical published by the ICRC. Its aim is to promote reflection on t +41 22 734 60 01 Published in association with f +41 22 733 20 57 humanitarian law, policy and action in armed conflict and Cambridge University Press. e-mail: [email protected] other situations of collective armed violence. A special- ized journal in humanitarian law, it endeavours to promote knowledge, critical analysis and development of the law and contribute to the prevention of violations of rules protecting Editor-in-Chief Submission of manuscripts Subscriptions fundamental rights and values. The Review offers a forum for Vincent Bernard discussion about contemporary humanitarian action as well ICRC The International Review of the Red Cross invites Requests for subscriptions can be made to as analysis of the causes and characteristics of conflicts so submissions of manuscripts on subjects relating the following address: as to give a clearer insight into the humanitarian problems Editorial Board to international humanitarian law, policy and Ahmed Abou El-Wafa they generate. Finally, the Review informs its readership on action. Most issues focus on particular topics, Cambridge University Press, The Edinburgh Cairo University, Egypt questions pertaining to the International Red Cross and Red decided by the Editorial Board, which can be Building, Shaftesbury Road, Cambridge Daniel Bar-Tal Crescent Movement and in particular on the activities and consulted under the heading Future Themes on CB2 8RU; or in the USA, Canada and Tel Aviv University, Israel policies of the ICRC. the website of the Review. Submissions related Mexico, email [email protected]: Annette Becker to these themes are particularly welcome. Cambridge University Press, 32 Avenue of Université Paris X, France the Americas, New York, NY 10013-2473, Antônio Cançado Trindade Articles may be submitted in Arabic, Chinese, email [email protected]. University of Brasilia, Brazil English, French, Russian and Spanish. Selected Marika Fahlen International Committee of the Red Cross articles are translated into English if necessary. The subscription price which includes Ministry for Foreign Affairs, Stockholm, The International Committee of the Red Cross (ICRC) Sweden delivery by air where appropriate (but is an impartial, neutral and independent organization Submissions must not have been published, sub- excluding VAT) of volume 92, 2010, which Bernard Haykel whose exclusively humanitarian mission is to protect the Princeton University, USA mitted or accepted elsewhere. Articles are sub- includes print and online access is £199.00 lives and dignity of victims of war and internal violence jected to a peer-review process; the final decision (US $385.00 in USA, Canada and Mexico) Venkateswara S. Mani and to provide them with assistance. It directs and coor- Jaipur National University, Jaipur, on publication is taken by the Editor-in-Chief. for institutions; £30.00 (US $57.00 in USA, dinates the international relief activities conducted by Rajastan, India The Review reserves the right to edit articles. Canada and Mexico) for individuals, which the Movement in situations of conflict. It also endeav- Herfried Münkler Notification of acceptance, rejection or the need includes print only. Single parts are £55.00 ours to prevent suffering by promoting and strength- Humboldt University, Berlin, Germany for revision will be given within four weeks of (US $100.00 in USA, Canada and Mexico) ening international humanitarian law and universal Mona Rishmawi receipt of the manuscript. Manuscripts will not plus postage. EU subscribers (outside the humanitarian principles. Established in 1863, the ICRC Office of the United Nations High be returned to the authors. UK) who are not registered for VAT should is at the origin of the International Red Cross and Red Commissioner for Human Rights, Geneva add VAT at their country’s rate. VAT Crescent Movement. Elizabeth Salmón Gárate Manuscripts may be sent by e-mail to: registered members should provide their Pontificia Universidad Católica del Perú, [email protected] VAT registration number. Japanese prices Lima, Perú Members of the Committee for institutions (including ASP delivery) President: Jakob Kellenberger Marco Sassòli Manuscript requirements are available from Kinokuniya Company University of Geneva, Switzerland Vice-President: Olivier Vodoz Articles should be 5,000 to 10,000 words in Ltd, P.O. Box 55, Chitose, Tokyo 156, Permanent Vice-President: Christine Beerli Michael N. Schmitt length. Shorter contributions can be published Japan. Marshall Center (CISS-Dean), under the section Notes and comments. Garmisch-Partenkirchen, Germany Christiane Augsburger Yves Sandoz Cover photo: Afghanistan, Ghor region, Terence Taylor Paolo Bernasconi Rolf Soiron International Council for the Life Sciences, For further information, please consult the combatants. CICR/Pagetti, Franco. François Bugnion Bruno Staffelbach Washington DC, USA Information for contributors and Guidelines for Bernard G. R. Daniel Daniel Thürer Bakhtiyar R. Tuzmukhamedov referencing on the website of the Review: Paola Ghillani André von Moos Diplomatic Academy, Moscow, Russian www.icrc.org/eng/review. Jürg Kesselring Federation Claude Le Coultre Peter Walker ©icrc Feinstein International Center, Friedman Authorization to reprint or republish any text School of Nutrition Science and Policy, Tufts University, USA published in the Review must be obtained from the Editor-in-Chief. Requests should be Wenqi Zhu addressed to the Editorial Team. Law School, Renmin University of China, Beijing, People’s Republic of China Volume93Number881March2011 Humanitarian debate: Law, policy, action Conflict in Afghanistan II Part 2: Law and humanitarian action CONTENTS 5 Interview with Ms Fatima Gailani, President of the Afghan Red CrescentSociety Articles Thelaw 11 Has the armed conflict in Afghanistan affected the rules on the conductofhostilities? RobinGeissandMichaelSiegrist 47 Internationallawandarmednon-stateactorsinAfghanistan AnnyssaBellal,GillesGiaccaandStuartCasey-Maslen 81 The Layha for the Mujahideen: an analysis of the code of conduct fortheTalibanfightersunderIslamiclaw MuhammadMunir 103 Annex: The Islamic Emirate of Afghanistan. The Layha [Code of Conduct]ForMujahids 121 Combatants,notbandits:thestatusofrebelsinIslamiclaw SadiaTabassum Humanitarianaction 141 Between a rock and a hard place: integration or independence of humanitarianaction? AntonioDonini 159 30 years in Afghanistan. ICRC photo archives account by AlbertoCairo 173 The International Committee of the Red Cross in Afghanistan: reassertingtheneutralityofhumanitarianaction FionaTerry 2 Volume93,Number881March2011 ArticlespublishedbytheReviewreflecttheviewsofthe authoraloneandnotnecessarilythoseoftheICRCorof theReview.OnlytextsbearinganICRCsignaturemaybe ascribedtotheinstitution. Selected articles on international humanitarian law 189 TheprotectivescopeofCommonArticle3:morethanmeetstheeye JelenaPejic Reports and documents 227 Nationalimplementationofinternationalhumanitarianlaw Biannualupdateonnationallegislationandcaselaw: July–December2010 Books and articles 239 RecentacquisitionsoftheLibraryandResearchService,ICRC THE FOLLOWING PAPERS APPEARED IN Vol. 92 No. 880 (Conflict inAfghanistanI): 841 Editorial Conflict in Afghanistan I 847 InterviewwithDrSimaSamar ChairpersonoftheAfghanIndependentHumanRightsCommission. Articles Socio-politicalandhumanitarianenvironment 859 Afghanistan:anhistoricalandgeographicalappraisal WilliamMaley 3 Volume93,Number881March2011 ArticlespublishedbytheReviewreflecttheviewsofthe authoraloneandnotnecessarilythoseoftheICRCorof theReview.OnlytextsbearinganICRCsignaturemaybe ascribedtotheinstitution. 877 DynamicinterplaybetweenreligionandarmedconflictinAfghanistan KenGuest 899 TransnationalIslamicnetworks ImtiazGul 925 Impunityandinsurgency:adeadlycombinationinAfghanistan NorahNiland 951 The right to counsel as a safeguard of justice in Afghanistan: thecontributionoftheInternationalLegalFoundation JenniferSmith,NatalieRea,andShabirAhmadKamawal 967 State-buildinginAfghanistan:acaseshowingthelimits? LucyMorganEdwards 993 ThefutureofAfghanistan:anAfghanresponsibility TaibaRahim Books and articles 1003 RecentacquisitionsoftheLibraryandResearchService,ICRC 4 Volume93Number881March2011 Interview with Fatima Gailani* PresidentoftheAfghanRedCrescentSociety. Ms Fatima Gailani was appointed as the President of the Afghan Red Crescent Society in 2005. She was born in 1954 in Kabul and is the daughter of Pir Sayed Ahmed Gailani, the leader of the National Islamic Front of Afghanistan, who fought againsttheSovietoccupationofAfghanistaninthe1980s.Shelivedinexileduringthe Soviet invasion of Afghanistan and acted as spokesperson in London for the Afghan Mujahideen. After her return to Afghanistan she was chosen as a delegate to the Emergency Loya Jirga (Grand Council) of June 2002 and was appointed as a constitution-drafting and -ratifying commissioner. Ms Gailani is the author of two books(TheMosques ofLondonandabiographyofMohammadMusaShafiq). HowdoyouseetheconflictinAfghanistan? It’s been going on now for more than thirty years, and I should get used to it. In Afghanistan we went through different stages of conflicts, from an invasion by the superpower of the time to civil war between ethnic or linguistic groups and Islamic sectarian fighting. As Afghans we should get used to it, but conflict is neithernormalnornatural, soofcoursewewillnot. My hope is that one day we will see the end of it. I am an optimist by nature,andinmyplansandmyimaginationIalwayslookaheadtothetimethat,if Godwills,therewillbenoconflict,asitwaswhenIwasbroughtupinAfghanistan. I was lucky enough to see Afghanistan before the wars: a country that was re- spected,wherewelivedinharmony.ThisisallIhavebeenabletodo–tohopefor thebestanddealwithwhatcomestoday. * The interview was conducted in Kabul, Afghanistan, on 8 March 2011 by Walid Akbar Sarwary, SpokespersonandHeadoftheInformationandDisseminationDepartmentoftheAfghanRedCrescent Society. doi:10.1017/S1816383111000257 5 InterviewwithFatimaGailani Whatarethebiggestchallenges thatwarbringstotheAfghancommunity? Itdependswhoyouarespeaking to.Therearepersonalproblems,ofcourse,such aslosingone’slivelihoodorhealth.Youknow,forinstance,thatwehavemillions ofdisabled people. Afterlosingalimb theyhave toliveon,andthey haveto cope with their disability for the rest of their lives. Some do, some can’t. Some lose all interest in life; they turn to drugs, they get up to mischief and suchlike. We have seenitall. But as someone who was exiled because of the conflict and came back hoping that it was over, but then saw it erupt again, I take a more professional point of view. As the head of the Afghan Red Crescent Society I ask myself what I can do, and, if I cannot end the conflict for these people, how best to approach themtoatleasteasesomeoftheirproblems.Theseproblemsincludepovertyand instability,orbeinganorphan,orawidowwithyoungchildren.SowhateverIcan do,Iwanttodoitperfectlyfortheirsake. The people working for the Afghan Red Crescent certainly are here to provide servicesforthepeoplewhoareaffectedbywar.Whotypicallyseekshelpfromthe AfghanRedCrescent? In conflict we can take different approaches. They will depend on the number of people affected, whether they are wounded, whether they are internally displaced persons,andsoon.Iftherearelargenumbersofsuchpeoplewithinacertaintime, such as soon after the conflict, we at least have the luxury of being helped by the ICRC [International Committee of the Red Cross]. With that help we are able to lookafterthem.Buttherearetimeswhenasmallernumberofpeopleareaffected by that same conflict: they lose their livelihood, their homes, their health–their ordinary everyday life is destroyed. Though there are not so many of them, this happensquitefrequently.Sincetheycometousalittlelate,theydon’tcorrespond tothecriteria forICRC assistance. Then, of course, wehave todealwiththem on ourown. For instance, in the minds of people who are disabled, either mentally or physically,theRedCrescentSocietyisthefirstplacetogotoseekhelp.Theycome to us for initial treatment, and sometimes, when they are totally exhausted, they come to us again for support. And you cannot argue with them. You cannot tell them theyhave cometoolate andthatitisnolonger within ourmandate tohelp them,orthattheydon’tmatchourcriteria.Whensomeoneissick,tired,withonly apennyintheirpocket,youcannotreasonwiththem.Somehowyouhavetohelp them.Again,aconsiderableamountofourtimeandresourcesisdevotedtothose people. Andthentherearethewomenandchildrenwhoarevictimsofconflict–I don’t ever want to get used to that, although I see them every day. You can never imagine how it is when a widow comes with small children. They have lost their father, the family’s only breadwinner, and there the woman is, illiterate, without anyskills,youngandvulnerable,withatleastthreechildrentocarefor.Sowehave tostepin.Andthereisnowhereelseforhertogo. 6 Volume93Number881March2011 Whatarethebiggestchallengesyoufaceinhelpingthosepeople? Wedon’thavetheluxury of singlingoutone ortwo oreven threechallenges. We have lots of challenges because the needs are so vast and our funds are so often inadequate. So lack of funds is themain problem. Another problem is that some- timeswe cannot get tothose people because Afghanistan is full of mountains and deepvalleys,andtheroadsarenotgood.Evenifyouarenotempty-handedanddo have something to give, it is extremely hard to reach them. And sometimes, for instanceaftertheearthquakethatstruckavalleysouthofSamangan,ittakesthema longtimetogettousoreventocontactthegovernmentsomewheresothatweare informed. The terrain is extremely difficult, and, although telecommunication is nowreallygood,therearestillplaceswithoutaccesstoit. So sometimes we are too late in getting to them, or–most of the time– they are too late in coming to us. Even so, we are in a much better position than anyoneelsebecauseofthepresenceofourvolunteers.Wewillknowmuchsooner thanothers,butstillnotassoonasIwantittobe. The armed conflict in Afghanistan is ongoing, and many provinces or districts that were safe before are now increasingly facing security challenges. What are yourconcernsaboutthisdevelopment? Naturally, as a normal Afghan, my concern is: when will peace come? When am Igoingtohaveanormallife?Thatismyquestionmark.Butapartfromthat,asthe president of such a big humanitarian institution and speaking on its behalf, our concernisthattheexpectationsaremuchgreaterthanourpossibilities.Thismeans that we will have more of a problem financially. And then, of course, even access to areas where people need our help is of constant concern. It is thanks to our neutrality that we have been able to reach people, be accepted by both sides, and havefarbetteraccessthananyoneelseinAfghanistan.Buttomaintainthataccess, wehavetobepoliticallyverycareful,veryalert,awarethattheslightestviolationof our neutrality or independence could endanger it. That is vitally important to ensurethatwedonotloseourabilitytoreachthosepeople. Yetevenifwepreserveourindependenceandneutralityperfectlyandthus haveaccessandareacceptedbyallsides,howcanwedealwithsuchvastproblems ifourhandsareempty?Anddon’tforget,inAfghanistanit’snotjustconflictalone, but conflict and natural disasters everywhere. So we can really do very little when confrontedwiththeproblems theretoday. WhatarethefutureplansfortheNationalSociety,andespeciallyitsactivitiesin aidofpeoplewhoareormayinfuturebeaffectedbytheconflict? My hope is to gain the support of people or organizations that can help us. But again, we have to be extremely careful not to violate our neutrality and inde- pendence. That is not easy. It’s like walking on a tightrope: we have to maintain the balance. But we also have to be much better at our own work, so at least, if we are more efficient, our small funds will be too. I hope to introduce reforms in some areas where our efforts have been unsuccessful and thus to attain that objective. 7 InterviewwithFatimaGailani Today Afghanistan is experiencing donor fatigue, whether within the International Red CrossandRed CrescentMovement ormore widely withregard to the country as a whole. For thirty-two years, which is a long, long time, we have needed help from others. So I am trying very hard to set a new course. Our New Year starts very soon, and my promise to myself–more to myself than to others–is that I will reactivate our own resources and capabilities, so that, if one daywestandalone,wewillatleasthavesomethinginhand. 8
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