Recent events in Afghanistan where US soldiers desecrated the Taliban corpses gained a lot of media coverage in the US. Moreover, they were supported by some public figures who justified these actions by comparing them to the behavior of the Taliban soldiers. The recent events indicate that retaliation and relativity are present in the international community’s actions against the Taliban soldiers. These events also depict problems of asymmetric warfare, which should be avoided in the future.
Recent events confirm predictions made in 2002 by Michael N. Schmitt in his article, “Ethics and Military Force: The Jus in Bello” about relativity of force and standards. The author argued that disproportionate military strength would leave the other side at a disadvantage in the eyes of the court, the Geneva Convention, and thus also of the international community. The Taliban forces do not possess the military force and equipment the USA does. They are not a military force representing the Afghani government. They do not wear any signs or have a direct hierarchy in their lines the way official military of a state would have. Thus, according to many in power, their status is obscure under the Geneva Convention.
The Bush administration decided already in 2002 that the Taliban did not apply under the Geneva Convention, but still were to be treated accordingly. According to the White House memorandum released on February 7, 2002, the Taliban neither applied as illegal combatants nor as participants in an internal war. Thus, the US had no obligation towards the Geneva Convention. Yet, the Bush Administration decreed that the US would abide by the Geneva Convention.
The decree led to many irregularities. The terrorists were exported to countries such as Syria, Egypt and Jordan, where they were tortured in order to have information extracted from them (Mayer, 2005). Obviously, their rights were not respected, as the Geneva Convention forbids use of torture in order to abstract the information from enemy combatants.
Then the Supreme Court ruled in favor of Common Article 3 of the Geneva Convention with regard to Al Qaeda and international terrorists in 2006. The U.S. Supreme Court’s June 29, 2006, in Hamdan vs. Rumsfeld ruled that Common Article 3 applied to a global conflict with a non-state actor, al-Qaeda, taking place within the territory of a country, Afghanistan, that is a party to the Geneva Conventions (Welsh, 2006). Terrorists engaged in a global conflict anywhere on earth involving the territory of a party to the Geneva Conventions have a right to protection from torture, inhumane treatment and are entitled to medical care (Welsh, 2006).
However, violations of the rights of the Taliban soldiers continued and have been further consolidated by the most recent legislation. The 2012 National Defense Authorization Act (NDAA) provides legal ground for “indefinite detention of suspected terrorists or suspected supporters of terrorists/terrorism by the military with no due process” (McDermott, 2011). McDermott (2011) argued that whereas these provisions previously applied only to foreigners, now the US citizens are not immune either, which is against the 6th Amendment. The Taliban fighters who will be under suspicion of collaborating with any terrorist groups will apply under this Act.
Why is this important to us? The US is a signatory to the Geneva Convention, and thus cannot engage in its violations. Violations portray the US in negative light, and send a wrong message to non – signatories, discouraging them even further from joining the Convention. Moreover, a lack of consistency creates distrust on behalf of our allies and opponents. Negotiations to end conflict in Afghanistan might be stalled by US behavior. In the future, US opponents might apply this approach in their treatment of the US soldiers and citizens.