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There is no headquarters and command structure.  
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2.3 TERRITORIAL EXTENSION OF THE CONFLICT IN AFGHANISTAN (THE ‘SPILLOVER EFFECT’)?
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 armed conflict against the Taliban; or one may argue that the alliance is an actor which internationalises
of the Karzai government and thus as a party on the government side in its non-international
the conflict. 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. As may be recalled, the NATO war against the Taliban government in Afghanistan, authorised by the UN Security
Monde/La-mort-de-Ben-Laden-ne-met-pas-fin-au-terrorisme-_NG_-2011-05-02-607984. See also Jason Burke,
Council after September 11,76 was waged because the then Taliban government offered Al Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring
Al-Qaida, La veritable histoire de l’islam radical (La Découverte 2005) 19 and 25ff; Leah Farrall, ‘How al
Qaeda Works’ (2011) 90 Foreign Affairs 128, 133; Felix Boor, ‘Der Drohnenkrieg in Afghanistan und
Pakistan‘ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 97, 101; Rudolf and Schaller (n 25) 18. In
the same sense, see Wieczorek (n 56) 189 and Lubell (n 55) 119 (‘al Qaeda franchises’).
66 Eric Schmitt and Thom Shanker, ‘In Long Pursuit of Bin Laden, The ’07 Raid, and Frustration’, New York
Times, New York, 6 May 2011, A1.
67 See n 57.
68 With regard to the qualification of these groups as organised armed groups, see Laurie R Blank, ‘Finding Facts
but Missing the Law: The Goldstone Report, Gaza and Lawfare’ (2010–11) 43 Case Western Reserve Journal of
International Law 279 passim. See also Laurie R Blank, ‘The Application of IHL in the Goldstone Report: A
Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347, 401, in which the Hamas is
described as ‘a non-state entity’.
69 Farrall (n 65) 135.
70 Ian Hamel, L’énigme Oussama Ben Laden (Payot 2008) 299; Alain Rodier, Al-Qaida, les connexions mondiales
du terrorisme (Ellipses 2006) 190.
71 Adam Roberts, ‘Afghanistan and International Security’ in Michael N Schmitt (ed), The War in Afghanistan: A
Legal Analysis (Department of the Navy 2009) 3, 9; Boor (n 65) 100.
72 For a detailed description of the western military coalition in Afghanistan, including Operation Enduring
Freedom, dominated by the US, see Alan Cole, ‘Legal Issues in Forming the Coalition’, in Schmitt (n 71) 141.
350 ISRAEL LAW REVIEW [Vol. 45:2
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
Council after September 11,76 was waged because the then Taliban government offered Al
Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring
state responsibility. Thus, at that time, one could have plausibly argued that the war
state responsibility. Thus, at that time, one could have plausibly argued that the war
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. Yet, this situation changed with the fall of the Taliban government and the
Qaeda existed.77 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. At the current
retreat of its forces and, above all, Al Qaeda to Pakistan and other countries.78 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’).
operation’).80
 
As for the involvement of the US, one would have to argue, with a view to an armed conflict
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 Afghanistan to Pakistan, fighting the same parties there.81 Yet, this would misread the spillover
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
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
Völker(straf)recht’ (2010) 63 Neue Juristische Wochenschrift 1725, 1726.
74 See Yoram Dinstein, ‘Terrorism and Afghanistan’ in Schmitt (n 71) 43, 51 and 53; generally, for an international
armed conflict if the territorial state is assisted by external forces: Rosemary Abi-Saab, Droit humanitaire
et conflits internes (Pedone 1986) 109ff.
75 Bruce Riedel, ‘Pakistan: The Critical Battlefield’ (2008) 107 Current History 355, 355; Shaun Gregory, ‘The ISI
and the War on Terrorism’ (2007) 30 Studies in Conflict & Terrorism 1013, 1019; Dinstein (n 74) 52 (‘intimate
relationship’).
76 UNSC Res 1368(2001), UN Doc S/RES/1368 (2001), 12 September 2001, para 3; UNSC Res 1373(2001), UN
Doc S/RES/1373 (2001), 28 September 2001, Preamble.
77 In this vein, see Lubell (n 55) 88.
78 On the Taliban in Pakistan, see Gregory (n 75) 1024ff; Bruce Riedel, ‘Pakistan and Terror: The Eye of the
Storm’ (2008) 618 The Annals of the American Academy of Political and Social Science 31, 32; Thiessen
(n 2) 78ff; Amir Mir, Talibanization of Pakistan (Pentagon Press 2009) 1; Nasreen Akhtar, ‘Pakistan,
Afghanistan, and the Taliban’ (2008) XXV International Journal on World Peace 49, 50. On Al Qaeda’s presence
in Pakistan, see Imtiaz Gul, The Al Qaeda Connection, The Taliban and Terror in Pakistan’s Tribal Areas
(Penguin Global 2009) 26ff; Riedel (n 75) 355. For a description of a growing co-operation between the
Pakistani Taliban and Al Qaeda, see Mir ibid 9 and 14; Christian Schaller, ‘Gezielte Tötungen und der Einsatz
von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht-
Informationsschriften 91, 95.
79 cf ICRC, Annual Report (2010) 260, available at http://www.icrc.org/eng/resources/annual-report/index.jsp;
Boor (n 65) 100; Schaller (n 78) 94. Rudolf and Schaller (n 25) 16 (identifying a non-international armed conflict
throughout the entire Pakistan territory independent of any spillover effect from the Afghan conflict).
80 E-mail of the Pakistan Permanent Mission to the international organisations in Geneva to the authors, 31 May
2011. See also, with regard to the ‘intensity’ criterion for the qualification as armed conflict, Prosecutor v
Boškoski/Tarˇculovskias (n 44) [177] as well as Prosecutor v Haradinaj/Balaj/Brahimaj (n 55) [49].
2012] HAS ‘JUSTICE BEEN DONE’? 351
Afghanistan to Pakistan, fighting the same parties there.81 Yet, this would misread the spillover
argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the
argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the
Tadić criteria,82 may entail ‘spillover effects’ such as those caused by the retreat of one of the
Tadić criteria, may entail ‘spillover effects’ such as those caused by the retreat of one of the
parties to the conflict into the territory of a neighbouring state,83 the extraterritorial reach of
parties to the conflict into the territory of a neighbouring state,83 the extraterritorial reach of such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot
such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot
exist independently.84 In this case, the location where the killing took place (Abbottabad) is
exist independently.84 In this case, the location where the killing took place (Abbottabad) is
not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the
not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the Afghan border), but also outside the actual Pakistan battle zone.
Afghan border), but also outside the actual Pakistan battle zone.85 Thus, we are, in fact, not concerned
 
Thus, we are, in fact, not concerned
with a simple extension of the Afghan conflict involving the Taliban into neighbouring
with a simple extension of the Afghan conflict involving the Taliban into neighbouring
Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial
Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial
link whatsoever.86 Following this view means proclaiming a worldwide ‘war on terror’87
link whatsoever.
involving all states in which terrorists reside without a formal or substantive armed conflict
 
between these host states and the state waging this war on terror, namely the US. Our whole
Following this view means proclaiming a worldwide ‘war on terror’87
81 In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in
involving all states in which terrorists reside without a formal or substantive armed conflict between these host states and the state waging this war on terror, namely the US. Our whole
Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74) 52; similarly
 
In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in
Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74); similarly
stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine
stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine
Fair and Seth G Jones, ‘Pakistan’s War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the
Fair and Seth G Jones, ‘Pakistan’s War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the
US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed
US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed
Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff.
Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff.
82 For the Tadić criteria, see nn 34 and 41.
83 See Paulus and Vashakmadze (n 55) 115ff, particularly 119. For the Tadić criteria, see nn 34 and 41.
84 In this vein, denying an armed conflict between a state and an international terror network because of the
84 In this vein, denying an armed conflict between a state and an international terror network because of the
impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an
impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an
Zeile 210: Zeile 146:
TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram%
TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram%
3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster.
3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster.
352 ISRAEL LAW REVIEW [Vol. 45:2
 
planet would thus become a battlefield without bounds, and the classic understanding of an
The whole planet would thus become a battlefield without bounds, and the classic understanding of an
armed conflict linked to state territory and involving a specific military confrontation would
armed conflict linked to state territory and involving a specific military confrontation would
lose all its restraining and humanising force.88
lose all its restraining and humanising force.
 
2.4 COMBATANT AND CIVILIAN STATUS
2.4 COMBATANT AND CIVILIAN STATUS
Let us, for the sake of argument, assume that there exists an armed conflict between the US and
Let us, for the sake of argument, assume that there exists an armed conflict between the US and
Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the
Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the
basic assumption that only individuals holding the status of combatants can, under certain circumstances,
basic assumption that only individuals holding the status of combatants can, under certain circumstances,
lawfully be killed during an armed conflict. While this status does not exist formally
lawfully be killed during an armed conflict. While this status does not exist formally in a non-international armed conflict,89 there can be no doubt that civilians do take part in hostilities
in a non-international armed conflict,89 there can be no doubt that civilians do take part in hostilities
in such conflicts and that they then are – for all practical reasons, notwithstanding the rather
in such conflicts and that they then are – for all practical reasons, notwithstanding the rather
terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto)
terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto)
Zeile 1.116: Zeile 1.052:
fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/
fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/
2012]
2012]
Christian Schaller, ‘Gezielte Tötungen und der Einsatz
von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht-
Informationsschriften 91, 95.
Rudolf and Schaller (n 25) 16 (identifying a non-international armed conflict
throughout the entire Pakistan territory independent of any spillover effect from the Afghan conflict).
80 E-mail of the Pakistan Permanent Mission to the international organisations in Geneva to the authors, 31 May
2011.
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