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| There is no headquarters and command structure. | | There is no headquarters and command structure. |
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| 70
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| 2.3 TERRITORIAL EXTENSION OF THE CONFLICT IN AFGHANISTAN (THE ‘SPILLOVER EFFECT’)?
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| While it is beyond dispute that an armed conflict between the Karzai government and the Taliban | | While it is beyond dispute that an armed conflict between the Karzai government and the Taliban |
| takes place in Afghanistan,71 the international or non-international nature of this conflict is less | | takes place in Afghanistan, the international or non-international nature of this conflict is less |
| clear. One may consider the NATO-led International Security Assistance Force72 as an extension | | clear. One may consider the NATO-led International Security Assistance Force as an extension |
| of the Karzai government and thus as a party on the government side in its non-international | | of the Karzai government and thus as a party on the government side in its non-international armed conflict against the Taliban; or one may argue that the alliance is an actor which internationalises |
| Monde/La-mort-de-Ben-Laden-ne-met-pas-fin-au-terrorisme-_NG_-2011-05-02-607984. See also Jason Burke,
| | the conflict. Be that as it may, what is of relevance for the spillover argument is |
| Al-Qaida, La veritable histoire de l’islam radical (La Découverte 2005) 19 and 25ff; Leah Farrall, ‘How al
| | that the Taliban, or at least a part of it, has been an ally of Al Qaeda. As may be recalled, the |
| Qaeda Works’ (2011) 90 Foreign Affairs 128, 133; Felix Boor, ‘Der Drohnenkrieg in Afghanistan und
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| Pakistan‘ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 97, 101; Rudolf and Schaller (n 25) 18. In
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| the same sense, see Wieczorek (n 56) 189 and Lubell (n 55) 119 (‘al Qaeda franchises’).
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| 66 Eric Schmitt and Thom Shanker, ‘In Long Pursuit of Bin Laden, The ’07 Raid, and Frustration’, New York
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| Times, New York, 6 May 2011, A1.
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| 67 See n 57.
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| 68 With regard to the qualification of these groups as organised armed groups, see Laurie R Blank, ‘Finding Facts
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| but Missing the Law: The Goldstone Report, Gaza and Lawfare’ (2010–11) 43 Case Western Reserve Journal of
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| International Law 279 passim. See also Laurie R Blank, ‘The Application of IHL in the Goldstone Report: A
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| Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347, 401, in which the Hamas is
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| described as ‘a non-state entity’.
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| 69 Farrall (n 65) 135.
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| 70 Ian Hamel, L’énigme Oussama Ben Laden (Payot 2008) 299; Alain Rodier, Al-Qaida, les connexions mondiales
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| du terrorisme (Ellipses 2006) 190.
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| 71 Adam Roberts, ‘Afghanistan and International Security’ in Michael N Schmitt (ed), The War in Afghanistan: A
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| Legal Analysis (Department of the Navy 2009) 3, 9; Boor (n 65) 100.
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| 72 For a detailed description of the western military coalition in Afghanistan, including Operation Enduring
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| Freedom, dominated by the US, see Alan Cole, ‘Legal Issues in Forming the Coalition’, in Schmitt (n 71) 141.
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| 350 ISRAEL LAW REVIEW [Vol. 45:2
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| armed conflict against the Taliban;73 or one may argue that the alliance is an actor which internationalises | |
| the conflict.74 Be that as it may, what is of relevance for the spillover argument is | |
| that the Taliban, or at least a part of it, has been an ally of Al Qaeda.75 As may be recalled, the | |
| NATO war against the Taliban government in Afghanistan, authorised by the UN Security | | NATO war against the Taliban government in Afghanistan, authorised by the UN Security |
| Council after September 11,76 was waged because the then Taliban government offered Al | | Council after September 11,76 was waged because the then Taliban government offered Al |
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| against Afghanistan was in fact a war against the Taliban, as the then Afghan government, | | against Afghanistan was in fact a war against the Taliban, as the then Afghan government, |
| and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al | | and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al |
| Qaeda existed.77 Yet, this situation changed with the fall of the Taliban government and the | | Qaeda existed. Yet, this situation changed with the fall of the Taliban government and the |
| retreat of its forces and, above all, Al Qaeda to Pakistan and other countries.78 At the current | | retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. At the current |
| state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at | | state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at |
| best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational | | best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational |
| armed conflict79 (although Pakistan itself does not engage, by and large, in armed | | armed conflict (although Pakistan itself does not engage, by and large, in armed |
| operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement | | operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement |
| operation’).80 | | operation’). |
| As for the involvement of the US, one would have to argue, with a view to an armed conflict | | |
| between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, | | As for the involvement of the US, one would have to argue, with a view to an armed conflict between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, |
| ‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in | | ‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in |
| 73 cf Generalbundesanwaltschaft (German Attorney General), Press release 8/2010, 19 April 2010 (case of
| | |
| Oberst Klein regarding bombing of tanks in Kunduz), para 1, available at http://www.generalbundesanwalt.
| | |
| de/de/showpress.php?themenid=12&newsid=360; Kai Ambos, ‘Afghanistan-Einsatz der Bundeswehr und
| | Christian Schaller, ‘Gezielte Tötungen und der Einsatz |
| Völker(straf)recht’ (2010) 63 Neue Juristische Wochenschrift 1725, 1726.
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| 74 See Yoram Dinstein, ‘Terrorism and Afghanistan’ in Schmitt (n 71) 43, 51 and 53; generally, for an international
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| armed conflict if the territorial state is assisted by external forces: Rosemary Abi-Saab, Droit humanitaire
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| et conflits internes (Pedone 1986) 109ff.
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| 75 Bruce Riedel, ‘Pakistan: The Critical Battlefield’ (2008) 107 Current History 355, 355; Shaun Gregory, ‘The ISI
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| and the War on Terrorism’ (2007) 30 Studies in Conflict & Terrorism 1013, 1019; Dinstein (n 74) 52 (‘intimate
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| relationship’).
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| 76 UNSC Res 1368(2001), UN Doc S/RES/1368 (2001), 12 September 2001, para 3; UNSC Res 1373(2001), UN
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| Doc S/RES/1373 (2001), 28 September 2001, Preamble.
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| 77 In this vein, see Lubell (n 55) 88.
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| 78 On the Taliban in Pakistan, see Gregory (n 75) 1024ff; Bruce Riedel, ‘Pakistan and Terror: The Eye of the
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| Storm’ (2008) 618 The Annals of the American Academy of Political and Social Science 31, 32; Thiessen
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| (n 2) 78ff; Amir Mir, Talibanization of Pakistan (Pentagon Press 2009) 1; Nasreen Akhtar, ‘Pakistan,
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| Afghanistan, and the Taliban’ (2008) XXV International Journal on World Peace 49, 50. On Al Qaeda’s presence
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| in Pakistan, see Imtiaz Gul, The Al Qaeda Connection, The Taliban and Terror in Pakistan’s Tribal Areas
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| (Penguin Global 2009) 26ff; Riedel (n 75) 355. For a description of a growing co-operation between the
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| Pakistani Taliban and Al Qaeda, see Mir ibid 9 and 14; Christian Schaller, ‘Gezielte Tötungen und der Einsatz
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| von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht- | | von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht- |
| Informationsschriften 91, 95. | | Informationsschriften 91, 95. |