protection of Protocol 11, an armed force must be under responsible command
and exercise control some territory. Protocol 11, Art. 1. This narrowing has
the effect of excluding some from the protections of CA3. Again, keeping in
mind the drafters' perspective, a newly established state with limited armed
forces and resources might be less likely to want to extend protections to
revolutionary powers. Some developing nations expressed concern that the
super powers of the time (1977), namely, the U.S. and USSR, might, as a
subterfi~ge for intervention, assert that they needed to become involved in the
internal conflict to come to the aid of the insurgents pursuant to CA3.a. Protocol I1 as a minimum standard by analogy?(1)United States is not a party to Protocol 11.(2)Unlike Protocol I, it may reflect customary law.(3)Minimum standards at Article 4 (Fundamental Guarantees), Article 5
(Persons Whose Liberty Has Been Restricted), and Article 6 (Penal
Prosecutions).- War on Terrorism. There remains great debate concerning the
characterization of the conflict in Afghanistan. Clearly, the U.S. is in an
armed conflict. The question is whether it is an international armed conflict
(Common Article 2; State vs. State), an armed conflict not of an international
character (Common Article 3; internal), a combination of the two; or some
other type of armed conflict.
a. In regards to the Taliban, it seems clear that the U.S. was in an
international armed conflict with the commencement of Operation
Enduring Freedom (OEF) on October 7,2001. While not recognized by
98% of the International community, arguably, the Taliban was the de
facto government of the Afghanistan since 1996 including at the
commencement of OEF. State recognition is not a requirement for the
application of the Geneva Conventions. However, when the OEF
coalition forces defeated the Taliban regime, they lost control of
Afghanistan and ceased to exist as the de facto government of
Afghanistan. With the new Afghan government headed by President
Karzai firmly in place as the government of Afghanistan, any remaining
armed conflict between the coalition forces and organized armed elements
of the Taliban regime arguably should be characterized as an armed
conflict of a non-international character (i.e. a Common Article 3 internal
armed conflict).
85' !~/l,~ll~,-,
"'I 6 ,