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Book Review: “What Went Wrong in Afghanistan?”

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Reviewed by: Millie Radovic

Gurcan, Metin. What Went Wrong in Afghanistan?: Understanding Counter-Insurgency Efforts in Tribalized Rural and Muslim Environments. Helion and Company, 2016. ISBN: 978-1-911096-00-9.

 

The term ‘Counter-Insurgency’, also known as COIN, has in the post-9/11 era become synonymous with Afghanistan. Nearing its sixteenth year, the NATO-led campaign to defeat the Taliban insurgency that followed the US invasion in 2001, is not short of critical literature. In Metin Gurcan’s What Went Wrong in Afghanistan?, the author tackles several questions: Why have so many efforts in Afghanistan been futile? Why has this been such a persistent conflict? And, what are we missing in our current understandings of the Afghan state and society? His answer to all these is Tribal Rural and Muslim Environments (TRMEs) and it is their characteristics that he goes on to analyze.

As a seasoned veteran in the practice and theory of Western military interventions, Gurcan uses his personal experiences of growing up in a rural Muslim environment in Turkey and working in Afghanistan as a military consultant between 2000 and 2008 to introduce a new perspective on COIN strategy – the primacy of tribalism. In other words, he argues that TRMEs are the defining feature of Afghanistan[1]. While conventional literature deems these ‘ungoverned’[2], he contends that they very much are regulated by their own norms, rules, and structures. In the first chapter, Gurcan defines TRMEs and outlines their key characteristics in relation to the state, family, Islam, justice, and violence. Thereafter, he uses this framework to examine modern Afghan history, and finally outlines the implications that TRMEs have on the nature and success rates of NATO-led COIN efforts in Afghanistan.

Gurcan’s key contribution to the current modern literature on Afghanistan is his emphasis on the importance of tribal order, a unique prevalence of Islam, and a rural landscape. Tribal order, as he defines it, “is a particular form of socio-economic and political control that completely rejects other belief systems introduced by the outsiders into the traditional way of life.”[3] He highlights that tribal orders are not resistant to adaptation and change, but that any transformation must be on their terms and that the very core tenets of their modus operandi do not change. Therefore, “any political solution disregarding the fact of territorial identities of the tribes or violating them may be confronted by strong reactions from the tribes.”[4] Gurcan’s well-defined framework of the Afghan tribal order and its relationship with society lends a perspective into Afghan society that is often undermined or ignored in COIN literature, and implies that our failures in COIN have been fashioned by our misunderstanding of the local environment. For example, Gurcan observes that state borders are meaningless for tribes[5], how in TRMEs “authority not reasoning comes to the conclusion about correct action”[6], yet that also “battles between tribes are never fought so fierce that one side attempts to annihilate the other completely”[7]. His observations challenge common value-based perceptions of what the social structure of a state ought to be.

Another highlight of Gurcan’s book is his poignant use of anecdotes and hypotheticals. He immerses the reader in the milieu of a local Afghan in the middle of the insurgency. His continual use of hypotheticals to explain the mentality of tribal leaders, or to explain the dilemmas of ISAF commanders, and show the importance of interpreters offer a candid picture of the Afghan environment.

The niche theme suggests that the target audience is not broad, but aims at a readership that has already in some way engaged with COIN and Afghanistan before. If this indeed is the case, many of components of the book are arguably redundant and unnecessary. For example, the second chapter spends much unnecessary time on outlining the geography, demography and modern history of Afghanistan. If an informed audience is assumed, then the section itself is excessive. It gathers commonly known facts into a chapter to conclude that these factors have had four commonly known impacts on rural Afghanistan. Such impacts are the removal of tribal structures from governance, the emergence of new networks of political Islamists under the Taliban’s flag, the development of violence as a ‘norm’ in settling socio-political and economic issues, and the destruction of traditional economic structures making room for warlordism.[8] Meanwhile, in the final chapter, Gurcan states that he will address ‘generally unknown’ issues of COIN strategies in Afghanistan. However, much of it reads like a compilation of existing work on counterinsurgency theories – those of David Galula, David Kilcullen, and John Nagl – together with contemporary literature on Afghanistan and the Taliban. However, Gurcan’s first-person insight into Afghan society makes this book authentic.

Finally, all of Gurcan’s arguments on how we have misunderstood Afghanistan are convincing, yet his angle of analysis is so narrow that he straps himself into a policymaking straightjacket. By stressing local level understanding as the sole most important component of COIN efforts, Gurcan avoids broader overarching factors. His understandings of corruption, even norms, and security and justice appear solely defined by his experience of Afghanistan. This eliminates any value-based judgment of the issues and – as he admits himself – setting this book up for a problem-structuring, but not problem-solving narrative. As such, in order to yield results, this book must be accompanied by multiple other readings on the issues he refers to and a thorough knowledge of the COIN campaign in Afghanistan. Nevertheless, with vast tactical implications, What Went Wrong in Afghanistan is an essential contribution to the literature on COIN in Afghanistan. It is yet another reminder that as books like Gurcan’s improve our understanding of Afghanistan, our efforts must begin capitalizing on them.

Millie Radovic (@millie_radovic) is a final-year British student reading for a BA in International Relations at the Department of War Studies in King’s College London.

Notes:

[1] Gurcan, Metin. What Went Wrong in Afghanistan?: Understanding Counter-insurgency Efforts in Tribalized Rural and Muslim Environments. Helion and Company, 2016. p.15

[2] See Mills, Greg. “Calibrating Ink Spots: Filling Afghanistan’s Ungoverned Spaces.” The RUSI Journal 151, no. 4 (2006): 16-25; Rabasa, Angel. Ungoverned territories: Understanding and reducing terrorism risks. Vol. 561. Rand Corporation, 2007; Schetter, Conrad. “7 Ungoverned territories.” The Spatial Dimension of Risk: How Geography Shapes the Emergence of Riskscapes 27 (2012): 97.

[3] Metin, What Went Wrong in Afghanistan? (2016). p.33

[4] Ibid. p.35

[5] Ibid. p.52

[6] Ibid. p.39

[7] Ibid. p.50

[8] Ibid. p.91

Feature image credit: Tomas Munita for The New York Times at http://www.nytimes.com/2007/10/05/world/asia/05afghan.html

Book review: 'America’s Modern Wars: Understanding Iraq, Afghanistan and Vietnam' by Christopher Lawrence

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Reviewed by: Cheng Lai Ki

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Christopher Lawrence. America’s Modern Wars: Understanding Iraq, Afghanistan and Vietnam. Oxford, UK. Casemate Publishers, 2015. ISBN: 978-1612002781. Hardcover. £19.99

Compared to other countries around the world, the United States military possesses the largest expenditure rate in the world of around $640,221million, according to a study conducted by the Brookings in 2014.[1] Within the last century, the United States has proven its military capabilities in multiple conflicts. The rise of advanced warfare tactics through technological developments (i.e. Unmanned Combat Vehicles) has allowed distancing from direct confrontation or engagement in hostiles. The increased distance from the battlefield and development of new combat tactics avoiding confrontation makes the determination of conflict victories increasingly elusive. Despite the existence of multiple detailed and comprehensive studies on insurgency and counterinsurgency, most are limited to specific cases or conflicts. Adding complexity to the phenomenon of insurgencies, the lack of detailed (and accurate) information ultimately inhibits the understanding and formation of effective counterinsurgency strategies.

In America’s Modern Wars: Understanding Iraq, Afghanistan and Vietnam, Christopher Lawrence offers a more systematic, quantitative approach towards the subject of insurgency and counterinsurgency. This was accomplished utilising resources obtained from his role at The Dupuy Institute (TDI), a non-profit organisation focused on academic research and studies around historical data associated to armed conflicts and acclaimed resolutions. TDI has collaborated in the past with the governmental agencies. Between 2002 – 2004, TDI produced three annual reports developed for the United States Department of the Army regarding the combat effectiveness within cities.[2] Through extremely comprehensive quantitative studies, the book critically examines the Iraq, Afghanistan, and Vietnam wars to determine the various elements and factors supporting the ultimate outcome of each conflict.

Studies and publication conducted by TDI revolve around the examination of historical resources. This academic and research discipline allows for evidentiary based analyses to be conducted. Ergo, Lawrence was able to conduct an extremely comprehensive strategic analysis and its outcomes of several conflicts where United States played a significant role. The book begins with TDI outlining their casualty estimate for the United States government agencies. Impressed by their statistical collection methodologies supporting their estimates, other agencies ultimately expanded their contracts with the institution for additional data collection and subsequent studies. Over the course of the Iraq War, Lawrence coordinated multiple projects involving quantitative researchers. TDI’s relationship with various department within the United States government has thus allowed its researchers access to the extensive material available from internal departments and centers (i.e. United States Army Center of Military History). As an individual, Lawrence has also published several papers and monographs for the Congressional Office of Technology Assessment and the Vietnam Veterans of American Foundation in addition to an amalgamation of assessments for the Department of Defense.[3] The book fundamentally centres upon quantitative variables of indigenous and intervening government typologies, insurgency motivations, insurgency structure, typology of counterinsurgency waged, rules of engagement and the nature of the conflict’s resolution.

Throughout the book, Lawrence identifies several correlations between variables that could be applied consistently throughout the three major wars in Iraq, Afghanistan and Vietnam. His analysis revealed a correlation between force ratios and insurgent motivations. Comparing his discoveries towards conventional counterinsurgency assessments and studies, Lawrence has quantifiably identified that although overwhelming force ratios (between counterinsurgents and insurgents) are not required for counterinsurgency success, it is larger fighting forces that ultimately yields counterinsurgency victory. Within the analysis, Lawrence also suggests several other variables that might influence the outcome of counterinsurgencies. However, it would appear from the text that limited statistical emphasis or research was placed into these considerations. Throughout the book, Lawrence develops several statistical models to describe and analyse the dynamics of the counterinsurgency campaigns that essentially defined the Iraq, Afghanistan and Vietnam wars. However, acclaimed to examine the three modern wars of the United States has devoted a considerable amount of focus on the Iraq and Afghan War in contrast to Vietnam. Any book of this scope often focuses on specific reader categories. Therefore, the following section briefly addresses overarching benefits and limitations of the book for two main categories of readers: Academics and Practitioners.

With multiple elements within warfare categorically quantified within the book, academics could find the level of depth significantly beneficial to their studies. This book is an invaluable resource that both analyses and summarizes – with statistical support – three counterinsurgencies fought by the United States. For example, in Iraq, Lawrence argues that the counterinsurgency by the United States (Coalition) and the Iraqi Government was a success due to the generation of an overwhelming force-ratio compared to the insurgents. Given the nature of academia, criticism/rebuttal against his assentation is a given, as some would question the true definition of successfulness of the United States during Iraq, given its current state-of-affairs.[4]  Its limitations reside in its dense and hyper-focus upon statistical analysis; how the ‘numbers’ reflect reality could be (at times) difficult to understand and internalise – let alone contextualise against other theories within security studies.

Practitioners on the other hand might be initially overwhelmed by the sheer amount of quantitative/statistical data Lawrence goes into. However, it does not remove the quantitative benefits of the book for individuals within military domains. Providing an extremely comprehensive statistical analysis of the three counterinsurgencies, policy-makers would also benefit from this source of information. Fundamentally taking a historic approach, reflective analysis of the book can be a valuable resource for strategists to evaluate the effectiveness of American decisions during the wars. However, limitations of the book arguably depend heavily on the statistical knowledge (and interest) of the reader; especially when addressing practitioners. Regardless, to practitioners, the book is an invaluable resource to expand their horizon and understanding of United States activities during the three counterinsurgencies. The professional data collection and analytics compiled into this singular source makes America’s Modern Wars a valuable resource to understand (quantifiably) elements that can influence the outcome of counterinsurgencies.

Despite the sheer depth of statistical analysis into the elements within counterinsurgencies, Lawrence’s analysis places significant value on available (and accessible) information. America’s Modern Wars is unlikely to end any debates regarding the effectiveness of counterinsurgency strategies used in the three campaigns – as it may prove controversial should any such claim be made. It is commendable that Lawrence acknowledges the propensity for analyses to be revised in light of new data. The analysis does, however, provide an interesting perspective for practitioners and academics focusing on security issues associated to the activities of the United States. This source of analysis that utilises quantifiable information is a useful source – especially to practitioners drafting approval papers/plans. However, there remains a widespread belief that the complexity of warfare (and more importantly insurgencies) cannot be categorised or exclusively studied solely through quantifiable research. Regardless, Lawrence does manage to quantifiably identify one of the largest flaws of the United States strategies in the three conflicts, which is their inherent misunderstanding of counterinsurgency.[v] Nonetheless, America’s Modern Wars is still recommended for anyone aiming to obtain a comprehensive quantitative understanding of United States strategies in Iraq, Afghanistan and Vietnam.

Formerly with the Singapore Armed Forces, Cheng holds a Bachelor’s Honors degree in Criminology. During his military service, he was a senior tactical and operational instructor for the Armour Formation. He is currently reading for an MA in International Intelligence and Security at King’s where his academic specialties revolve around proxy strategies such as private military security companies, drones and cyber-warfare. In May 2016, he published an article on the vulnerabilities of transatlantic submarine cables in IHS Jane’s.

Notes:

[1] Dews, F. ‘Charts: U.S. Army size and defense expenditures relative to other nations’, Brookings [Online], (Oct 14 2015), Available from: http://www.brookings.edu/blogs/brookings-now/posts/2015/10/charts-us-army-size-defense-expenditures, (Accessed May 21 2016)

[2] ‘Publications’, The Dupuy Institute [Online], Available from: http://www.dupuyinstitute.org/tdipubs.htm, (Accessed May 21 2016)

[3] Lawrence, C.A. ‘President Obama’s Casualty Estimates’, Mystics & Statistics [Online], (Dec 27 2015); Available from: http://www.dupuyinstitute.org/blog/2015/12/27/president-obamas-casualty-estimates/ (Accessed Jan 2016)

[4] Cordesman, A.H., ‘American Strategic and Tactical Failures in Iraq: An Update’, Center for Strategic and International Studies Arleigh A. Burke Chair in Strategy [Online], (Aug 8 2006); Available from: http://csis.org/files/media/csis/pubs/060808_iraqfailures.pdf, (Accessed Dec 2015).

[5]Ubaldi, J. ‘Why Civil Military Operations will be a Combat Multiplier in Counterinsurgency Operations’, SmallWarsJournal.org [Online], (2009).

The limits of US security cooperation in Jordan

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By: Peter Kirechu

Barack_Obama_and_Abdullah_II
President Barack Obama Meets with King Abdullah II of Jordan in the Oval Office on 26 April, 2013. Source: Wikimedia.

The most notable feature of President Barack Obama’s partnership-based counterterrorism doctrine­–roughly defined–is its central focus on training and arming local security services to independently deal with emerging terrorism threats. The President’s doctrine is unfortunately fraught with inconsistent performance of US-trained security services, especially among fragile states in the Middle East and beyond. Whether in Iraq, Yemen, or Afghanistan, singular focus on capacity building within the security sector has failed to remedy the governance failures that fuel instability within the region.

In Jordan, the United States (US) enjoys a long history of sustained political, economic and military cooperation which dates back to 1951. However, since the self-styled Islamic State established a cross-border presence in Syria, concerns with the contagion of trained militants across Jordan’s borders have led to substantial increases in US security assistance. In February 2015, the United States expanded its annual aid to Jordan from $660 million to $1 billion. The funds were directed towards core counterterrorism priorities (border protection, C4ISR, quick-reaction airlift capabilities) and also the immediate humanitarian demands incurred by the Syrian refugee crisis.

Though the US-Jordanian security relationship is less fraught with discord when compared with other states in the region, this assessment slightly deceives a growing angst within the Jordanian public. Since the brutal loss of Jordanian pilot, Muath al-Kasaesbeh, to the Islamic State in 2014, the public is increasingly apprehensive of its government’s support of US policy prerogatives. The pilot’s death stood as a stark reminder of the costs paid by the Jordanian military–and the public writ large–in small part due to the government’s role within the US-led anti-Islamic State coalition.

Despite this fomenting anxiety, the United States appears squarely focused on the more proximate security threats borne by the Syrian conflict. But as the Salafi-Jihadist landscape evolves throughout the region, Jordan will remain an attractive target due to the available reservoir of disenchanted locals eager for a brighter economic future and resentful of the government’s stunted reforms. Unless the United States adopts a more balanced security assistance approach, one that emphasizes comprehensive governance reforms, the current policy will remain inadequate to the underlying causes of domestic instability. 

Jihadist entreaties on a vulnerable public

Since 2013, Jordan has served as the training and staging ground for Syrian rebels battling the Islamic State in Southern Syria. This training effort has slowly expanded and now includes the provision of Anti-Tank Guided Missiles (ATGM) to various US-supported rebel factions. This covert effort proceeded under limited public scrutiny until the Islamic State’s capture and subsequent beheadings of several western journalists and aid workers. These gruesome executions ultimately triggered the US-led aerial bombing campaign against the jihadist group in both Iraq and Syria.

The Jordanian government joined the US effort, viewing its participation as a necessary measure aimed at shoring up Jordan’s national security. At the outset, the public’s response was initially quite supportive but subsequent research polls conducted by the Arab Center for Research and Studies revealed that a majority of respondents viewed the campaign as more beneficial to the United States, Israel and Iran, rather than to Jordan’s security and stability. Though Jordanians expressed early support for their government’s role within the coalition, many did not consider the country’s security interests under direct threat.

But once Lt. Muath al-Kasasbeh was captured and gruesomely executed, his death elevated formerly muted discontent with Jordan’s role within the coalition. Those who not normally involve themselves with the ebbs and flows of foreign affairs found themselves participants in a growing conversation on the merits of their government’s continued involvement in the US-led coalition.

Nonetheless, the participation of roughly 2,200 Jordanian citizens in active battlefronts in Syria and Iraq underscores the government’s concerns with the return of trained militants who may seek to undermine the current governing order. As such, the government’s participation in the US-led coalition appears to be a reasonable response to the rising threat of both domestic and foreign militancy.

On the domestic front, Jordanian authorities have banned cleric that are sympathetic to the Islamic State from delivering public sermons. Other measures include the release of some prominent Salafist clerics with the intent of enlisting their assistance in combatting jihadist rhetoric within the public domain. The government has also adopted a more repressive approach to public dissent, detaining Muslim Brotherhood members and introducing new amendments to the Anti-Terrorism Law. These changes have criminalized the criticism of foreign countries and their leaders while permitting the prosecution of journalists and activists for speech-related crimes–as widely interpreted by the State Security Court.

The crackdown on public speech under the cover of combatting terrorism weighed heavily on Jordan’s decline from a ‘Partially Free’ to a ‘Not Free’ State according to the Freedom’s House  Freedom in the World rankings. This ranking has endured since 2010 and is not likely to improve under current conditions. Unfortunately, the government’s embrace of these policy prerogatives harms the state’s long-term security by ignoring legitimate public grievances and broadening public apathy with stagnated reforms that were once viewed as a bulwark against domestic instability.

Crises of Socio-Economic Patronage

The Hashemite Kingdom’s most urgent economic ails are grounded in the patronage and subsidy system which secures the monarchy’s rule. Regime loyalty underscores the long-running history of generous welfare benefits accorded to East Banker tribes and the pervasive use of personal friendships and tribal relationships to secure professional positions throughout the government. The patronage system is particularly acute within some sectors of the security services, where political and personal relationships often supersede professional conduct and competency.

The unprecedented nine to ten percent increase of the overall Jordanian population as a result of Syrian refugees has pushed the import-heavy Jordanian government into further reliance on foreign financial aid. Through IMF, EU, and US financial support, the country’s budget deficits have narrowed though public debt remains at 90 percent and unemployment increased from 14 percent to 22 percent in 2014. Due to the government’s overdependence on a politically motivated patronage system, systemic reforms are anathema to those who have historically thrived under public benefits. Thus efforts to curb this reliance ultimately undermine the Monarchy’s ability to institute meaningful economic changes. Nonetheless, progress towards this difficult objective remains a worthwhile goal for Jordan’s overall security.

The international community’s traditional responses to Jordan’s precarious economic position often focus on broadening the country’s financial reserves through infusions of foreign aid. But as long as foreign direct investments serve as the preferred model of external financial support, the government should channel these funds towards economic activities that utilize the immense labor reserves offered by the refugee population and Jordan’s unemployed youth.

By adopting economic policies that target this readily available labor pool, the government can provide opportunities for a highly vulnerable population in the low-skill manufacturing, agriculture, and construction sectors. Due to the widespread destruction of Syria’s manufacturing output, and the slow disappearance of formerly productive commercial centers and trade routes, the Jordanian government has the opportunity to develop these lost capabilities within its borders. Such an approach similarly coopts the potential diversion of marginalized youths and refugees into criminality or radicalization.

This approach not only addresses the socio-economic grievances that threaten the government’s long-term stability, but also changes public perceptions of the government’s commitment to meaningful reforms.

Due to the inflamed crises that characterize the Jordan’s neighborhood, the opposition movement has so far restrained itself from overt agitation for regime change. This patient resolve is perhaps rooted in the hopes that meaningful change might emerge through cooperation with the monarchy, rather than the revolutionary violence that has resulted in widespread human suffering elsewhere in the region. Unlike other places in the region, the government has the unlikely benefit of a relatively subdued opposition movement. It should capitalize on this level of calm agitation for change and dedicate more of its foreign assistance toward addressing the full breadth of opposition grievances.

The Limits of Narrow Counterterrorism Approaches

It is likely that the more visible results of effective counterterrorism support occur on the operational theater. Local security services elevate their targeting, surveillance, and response capabilities and gain an operational edge against insurgents and terrorist networks through US training and equipment support. However, when partner states accept US assistance, these transactions are also de facto political decisions with immense implications on the governed.

Recipient governments that focus their enhanced counterterrorism capabilities on regime survival or personal enrichment, as seen in Iraq, are unlikely to survive in the long-term. For others, security assistance and cooperation becomes a publically poisonous symbol of US encroachment on state sovereignty as seen in Yemen and Pakistan. In these environments, security-centered assistance is commonly squandered and US national interests harmed in the long-term.

The United States must therefore balance its security-dominant engagement with the Jordanian government and dedicate more resources to the socio-political and economic factors addressed herein. Placing governance and economic reform conditions on US security assistance, is the first step towards changing the United States’ reception within the Jordanian public. These conditions also incentivize the Jordanian government to balance security-based expenditures with the socio-economic investments that target the governance roots of instability. Over time, it is these investments that build economic, political, and social resilience throughout the Jordanian public and prevent radicalization among the most vulnerable sectors of the general public.

 

 

Peter Kirechu is a graduate student at the Mercyhurst Institute for Intelligence Studies where he focuses on civil strife, insurgencies and counterterrorism. Mr. Kirechu was also a 2013 Boren Scholar to Jordan where he studied the security and humanitarian effects of Syria’s civil conflict. Twitter: @PeterKirechu

To kill or to capture? The conundrum facing the Supreme Court and military operations

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By: W. M. Hart

Provincial Reconstruction Team Farah Conducts Quality Assurance Visit to Farah Prison
A local boy watches an inspection at a new prison in Farah province, Afghanistan (ISAF photo/ USAF 1st Lt Mark Graff). Source: Flickr

On 4 February 2016, heads of state and international organisations gathered in Westminster to discuss aid to Syria. At the same time, a mere stone’s throw away in the Supreme Court, the UK Government was finishing its argument in a case which could have profound impact on the way the UK undertakes future military detention operations.

Mohammed and others v Ministry of Defence is one of a number of cases the UK has fought in domestic and European courts regarding the conduct of hostilities in Iraq and Afghanistan.[1] The case before the Supreme Court is of particular interest as it crystallises a number of key issues, not least whether the UK had a legal power to detain people in non-international armed conflict and whether that detention is regulated by international humanitarian law or by human rights law.

The case principally concerns Serdar Mohammed, who was detained by British forces in Afghanistan in April 2010. He was suspected of being a senior Taliban Commander in the area and forensic tests showed that he had indeed come into contact with explosive material used in making IEDs. Mohammed was held by the UK on grounds of ‘mission accomplishment’ for the 96 hours allowed under ISAF standard operating procedures; he then continued to be held longer for ‘logistical reasons’. The UK wanted to transfer Mohammed to the Afghan authorities but they had no room to take him, their detention facilities in Lashkar Gah already being full. The UK held Mohammed for a total of 110 days, using internal military protocols to review and authorise his continued detention. Mohammed challenged the legality of his detention, arguing the UK was mistaken in fact (he was a farmer, not a fighter); that the UK had no legal power to detain him; and that in doing so the UK had breached the European Convention on Human Rights, in particular Article 5, which protects the right to liberty and security of the person.

In May 2014, the High Court found that while Mohammed was a lawfully detained by the UK for 96 hours, the rest of his detention was unlawful.[2] Subsequently, the Court of Appeal found that the Security Council Resolutions which authorised detention applied to ISAF, not specifically the UK, and that there was no basis in English law for Mohammed’s continued detention beyond that authorised by ISAF.[3]

These conclusions pose particular challenges for future military operations in non-international armed conflicts. Simply put – and there are some fiendishly complex legal arguments cutting across these points – there are four main issues. First and foremost, what do UN Security Council Resolutions actually authorise? Second, does a UNSCR trump regional or domestic human rights obligations? Third, to whom do these authorisations apply? And fourth, what law regulates the procedural protections in place when a person is detained?

What do UN Security Council Resolutions actually authorise?

UNSCR 1386, which set up ISAF, authorised ‘Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate’. The Supreme Court has to consider whether the phrase ‘all necessary measures’ includes detention as well as the use of lethal force. The Government argue it must, a fortiori: if the resolution authorises the use of lethal force, it must, as a matter of humanity, authorise the lesser measure of detention. The question of whether that authority to detain extends only to those who would otherwise be legitimately targeted, or a wider group of people (which is contemplated in international humanitarian law), is up for debate. To the defence establishment in the UK this ‘kill or capture’ dilemma is an absurdity. The lawyers acting for the claimants reject that logic, arguing instead the issue isn’t one of practical context but legal validity, and the UK simply didn’t have a legal basis in place at the time of Mohammed’s detention.  A valid legal basis, they argue, could be a UNSCR which explicitly authorises internment – such as UNSCR 1546 for Iraq – or domestic legislation performing the same function as the U.S. Authorization for Use of Military Force.[4]

Does a UNSCR trump regional or domestic human rights obligations?

The relationship between the ECHR and UN Security Council resolutions has been broached – some might say sidestepped – before. In Al-Jedda, Strasbourg concluded that the Security Council resolutions authorising internment in Iraq did not conflict with any of the UK’s obligations under Article 5(1) of the ECHR, because the Security Council did not ‘intend to impose “any obligation’’ on member states to breach fundamental human rights’.[5] The preceding decision in the House of Lords disagreed, finding that Article 103 of the UN Charter created an obligation for the UK to detain and thus affected Article 5(1), but that the UK ‘must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention’.[6] The Ministry of Defence would prefer to follow the House of Lords and modify the content of Article 5. Whether Strasbourg or the Supreme Court is better placed to interpret the legal effect of Security Council Resolutions on the UK depends on one’s perspective of whether human rights law should be the dominant lens through which international legal obligations are viewed.

To whom do these authorisations apply?

The argument goes that if the UNSCR authorised ISAF to detain people, and the UK deviated from ISAF standard practice, the UK cannot subsequently claim that the UNSCR authorised it to detain. But as Aughey & Sari point out, the resolution authorises Member States and not ISAF itself. In addition, each nation in ISAF retained the discretion to apply national caveats depending on policy and legal obligations. If the court finds that either the ECHR trumps the UN Resolution in these circumstances, or that Article 5 governs the procedure for detention, the discretion the UK retains vis a vis coalition procedures could in future potentially be circumscribed by the ECHR.

Which brings us onto our last point; can international humanitarian law (IHL) guarantee a sufficient level of protection for the detainee’s due process rights in a non-international armed conflict (NIAC) as opposed to an international armed conflict (IAC)?

What law regulates the procedural protections in place when a person is detained?

The question of whether IHL, acting as lex specialis, can modify or displace Article 5 in an IAC was addressed by the European Court in Hassan.[7] In this decision – which is a critical part of the Government’s argument, and which wasn’t made at the time the Court of Appeal heard Mohammed – the ECtHR recognised that IHL is specially designed for armed conflict, and the Geneva Conventions have procedural protections designed for captured combatants and civilians. Unfortunately, treaty law covering IAC is far more extensive than for NIAC, which is reduced to relying on Common Article 3 of the Geneva Conventions, Additional Protocol II and customary international law.

The Government argued that IAC protections should apply to NIAC by analogy, and do in any event by custom. For example, the Iraq conflict went through various characterisations – international armed conflict, occupation, non-international armed conflict. Each of these classifications has different legal rules and to have different rules applying from one day to the next is logically and practically challenging, if not impossible. In addition, the mouth twisting phrase ‘internationalised non-international armed conflict’ is used to describe the situation in Afghanistan from 2001 onwards – regardless of whether it was officially a NIAC, the British experience in Helmand looked, sounded and felt very much like any other international conflict on the ground. However, if Article 5(1) was engaged, as Mohammed and others claim, their rights were infringed by the lack of due process afforded to them on detention. Even if applicable, neither CA3, APII or custom provided any procedural protections for detainees, but human rights law did and was not applied.

The way the Supreme Court reasons this issue will have implications for the structure of the detention operations and for the level of protections afforded to detainees in future. Will they, for example, have their detention approved by a military official, a military judge, or a civilian judge? How would the practicalities of such hearings be managed?

Serdar Mohammed shows us that the relationship between international humanitarian law and human rights law is not necessarily a bed of roses; at times it more closely resembles a nest of thorns. The case also raises many other questions; what locus do different courts have to decide how international law should be balanced and interpreted? How can IHL be applied by analogy to NIACs, despite clear reluctance of states in the treaty negotiation process to do so? Can human rights be divided and tailored, or derogated from in an implied manner by states? Is it possible to establish customary international law from practice in non-international armed conflicts?

The Supreme Court is in the unenviable position of having to decide a host of principles which will affect the scope and shape of future military detention operations. The UK Government has ruled out boots on the ground in Syria for now.[8]  But if it did deploy the armed forces, it would have to shape the jus ad bellum justification in the UNSCR, the rules of engagement and the process of detention operations in line with this, and other, legal precedents.

 

W. M. Hart is a doctoral candidate at the Department of War Studies, King’s College London, researching the effect of human rights litigation on military operations.

 

 

Notes:

[1] Mohammed and others (Respondents) v Ministry of Defence (Appellant), currently before the Supreme Court, Case ID: UKSC 2015/0218 is joined with Abd Ali Hameed Ali Al-Waheed v Ministry of Defence. Mr. Al-Waheed was detained by British forces in Iraq.

[2] Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB)

[3] Serdar Mohammed v Secretary of State for Defence [2015] EWCA Civ 843

[4] Authorization for Military Use of Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). See Curtis A. Bradley and Jack L. Goldsmith, ‘Congressional Authorization and the War on Terror’, Harvard Law Review, 118 (2005) 2047-2133

[5] Jelena Pejic, ‘The ECtHR’s Al-Jedda Judgment: Implications for IHL’, Yearbook of International Humanitarian Law, 14 (2011) 237-253

[6] R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58

[7] European Court of Human Rights, Case of Hassan V. The United Kingdom (Application no. 29750/09), 16 September 2014

[8] Reuters, ‘Cameron rules out British ground troops in case for Syria airstrikes’ (26 November 2015). Available at: https://www.rt.com/uk/323525-cameron-parliament-syria-airstrikes/ Accessed on: 8 February 2016

 

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A war on humanitarianism?

by

By: Mélanie Thienard

GBU-38_munition_explosions_in_Iraq.jpg
Source: Wikimedia

 

Is the United States waging a war on humanitarianism?

On 26 October 2015, a Médecins Sans Frontières (MSF) hospital in Northern Yemen was struck by airstrikes, allegedly conducted by the US-supported, Saudi-led coalition, who have denied any implication in the destruction of the hospital. Earlier that month, on the 3rd of October, another MSF hospital was destroyed by the sustained fire of a US Air Force AC-130U gunship in Kunduz, Afghanistan.

In a series of press articles, French academic Gilles Dorronsoro claimed that these attacks in fact reflect a criminalisation of humanitarianism. According to him, former US Secretary of state Colin Powell tried to use humanitarian organisations in the War on Terror. It is the refusal of MSF to become ’essential contributors to the United States’ “combat team”’ which, according to Dorronsoro, led the organisation to become a legitimate target for the US army in what he described as a ‘war on humanitarianism.’ Whilst this remains speculative, other matters arose from the Kunduz bombing and the US justifications: a lack of verification of targets and/or a disregard for the core International Humanitarian Law (IHL) principle of proportionality.

International humanitarian law, hospitals, and the principle of caution

The body of law governing the conduct of hostilities is clear on the status of hospitals:

’Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited[1].’

The UN General Assembly reaffirmed this principle with a resolution: ‘places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations’.[2]

To uphold their protected status, hospitals set up by humanitarian organisations, such as MSF, must communicate their geographical position to all fighting parties on a regular basis. MSF is well aware that it is crucial to ensure the relative safety of both staff and patients. In fact, the GPS coordinates of the Kunduz hospital were last communicated to the coalition forces only days before its destruction.

Military necessity and proportionality

Only a few hours after the first US statements attributing the attack to a ‘mistake’, US commander in Afghanistan General John Campbell hinted that the attack on the Kunduz Trauma Hospital was justified by military necessity after Afghan forces allegedly came under Taliban fire. In this approach, the hospital was engaged deliberately rather than ‘mistakenly struck.’ Is that legal? In certain circumstances, yes.

‘The “principle of military necessity” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.[3]’

The surviving MSF staff in Kunduz however strongly denied the presence of active combatants in their facilities at the time of the attacks.

Military necessity is, however, not unlimited. It is in fact bound by another essential component of IHL:  proportionality. In terms of IHL, proportionality ‘seeks to limit damage [to civilians and civilian objects] caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought’.[4]

Considering the above IHL principles, let’s imagine that Taliban combatants were indeed using the hospital to target coalition forces.

Two questions remain unanswered. On a tactical level, was Taliban fire sustained enough to justify the call of an air strike on a civilian building? Strategically, would razing a perfectly functional hospital to the ground – killing 30 staff and patients and depriving thousands of civilians from accessing medical treatment – be critical to regain control of the city of Kunduz after it had been seized by Taliban fighters? If the answer to both is yes, the strike could be legally justified. If, however, the answers are uncertain, so is the legality of the attack.

An intelligence failure and the role of the Afghan forces

A final question, potentially the most important one, remains. Did the Afghan forces deliberately provided flawed intelligence to the US forces to justify the call of the airstrike?

As mentioned previously, the Afghan forces have claimed the presence of Taliban fighters in the hospital’s main compound, which prompted a muted, even sympathetic Afghan response to the attack.

A military coalition must be based on a certain degree of trust. It is doubtful that the US forces in Afghanistan possess the capability of double-checking every action of their Afghan allies. Such a policy could furthermore create a hierarchy between US and Afghan forces, which could undermine the coalition as a whole. If it turns out that the Afghan forces indeed provided flawed intelligence, drastic measures need to be taken to ensure the verification of targets by US operatives before a strike.

However, let’s not forget that, in the end, US forces pulled the trigger. Communication transcripts show that the gunship’s crew questioned the legality of the airstrike, but were nevertheless ordered to engage the hospital. General Campbell also admitted that ‘the decision to provide aerial fires was a US decision, made within the US chain of command.’ No one forced the US forces to take Afghan intelligence at face value. To the General director of MSF, it is clear that the attack constitutes a war crime as well an attack on the Geneva conventions.

Claiming that a ‘war against humanitarianism’ is being waged is in this case far-fetched and misleading. Such claims however show that, when it comes to foreign military intervention, the US is walking on eggshells and faces grave accusations of disregard of IHL and civilian lives.

The destruction of the Kunduz hospital shows two worrying trends at the operational level: a flawed chain of command, and the dissemination of flawed intelligence by Afghan forces. Whilst the advancements in targeting technology led some to argue that only the US army was capable of conducting warfare in accordance with the principles set forth by IHL, incidents such as the Kunduz bombing show a critical lack of communication between units with regard to the selection of targets. This makes the US army vulnerable to embarrassing ‘mistakes’ and war crime accusations as well as putting humanitarian NGOs working in active combat zones even more at risk.

The only way to address these issues in a constructive manner is for President Obama to answer the calls of MSF and consent to an independent and impartial investigation of the Kunduz attack.

Even war has rules.

 

 

Notes:

[1] Article 15, Fourth Geneva Convention, § 3, available at https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter11_rule35

[2] UN General Assembly, Res. 2675 (XXV), §6 available at http://www.un.org/documents/ga/res/25/ares25.htm

[3] https://www.icrc.org/casebook/doc/glossary/military-necessity-glossary.htm

[4] https://www.icrc.org/casebook/doc/glossary/proportionality-glossary.htm

 

 

Mélanie is a 3rd year IR student specializing in the Middle East, human rights and humanitarian law, president of the Amnesty International Society at King’s and has worked at Amnesty International UK since 2014 as a national student representative. Prior to coming to King’s she studied law and economics in Marseille, France.