alberto gonzales files - gonzales torture memo

8/14/2019 Alberto Gonzales Files - Gonzales Torture Memo

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January 22,2002Memoraadum for Alberio R GonzalesCounsel to the President,and \YilJiam J. Haynes I1C;eoeraI C o u ~ s e l f th e Deportment of Dcfensc

You have asked for our Ofice's views concerning the effect of international treaties andfederal laws on the treatment of individuals detained by the U.S. Amled Forces dufing theconfl ict in Afghanistan. In particular, you hav e asked w hether certain treaties forming par1 of thejaws of armed conflict apply to the conditions of detention and the procedures for trial ofmembers of a1 Q at da and the Taliban militia. We conclude that these Ireaties do not pro tec tmembers of the al Qaeda organization, which as a non-State actor cannot be a pady to thejntemationaj agreements governing war. We fuurther conclude tho1 rhat President has suflicientg ~ o u n d s o find that these treaties do not protect me mb cn of the Taliban militia. Thismem orandum expresses no view as to w hethe r the President should decide, as a matter of policy ,that the U.S. Armed Forces should adhere to lhc st an da rd so f conduct in !hose treaties wirhrespect to the irealrnent of prisoners.W e believe i t most useful to structure the a n a l ~ i s f these questions by focusing on theWa r Crimes Act, 18U.S.C. $ 2 4 4 1 (Supp. 111 1997) ("WCA"). The WCA directly incorporatesseveral provisions of international treaties governing the laws of war into the federal criminalcode. Part 1 of this memorandum describes the WCA and the most relevant treaty that itincorporates: rhe Geneva Convention Relalive to ihe T realm ent o f ~ r i s o n e d o fWar ("Geneva

IJ1").Parts 11 and 111 of this memorandum discuss why other deviations front the text ofGeneva 111 would not present either a violation o f the treaty or o ft he WC A. Parl I1 explains thata1 Qaeda detainees c a k o t claim the protections o f Geneva I11 because the treaty d o e r not apply

to them. Al Qaeda is merely a violent political mov emen t o r organization and not a nation-State.As a result, it cannot be a state party to a n y treaty. Becallse of the novel nature of [his conflict,moreover, a conflict with al Qaeda is not properly included in non-inrernational forms of armed'The four Gen eva Conventions for h e Protection o f Vicrims o f War, d ~ l e d ugust 12, 1949,wcrc ralified by theUnited S tates on July 14, 1953. These are the Con ventio n for the Amelioration o f the Condilion oft he Wo unde dand Sick in Armed Forces in the Field, 6 U.S.T. 31 I 5 ("Geneva Convention I"); the Convernion foc theAmelioration a it he Condition o f Wounded, Sick and S h ' wrcckcd Members of A m d Forccs a! Sea, 6 U.S.T. 32 19,!!""Geneva C onvention 11"); the Convention Relative lo t e T r c a t n ~ n l f Prisoners o f War, 6 U.S.T. jS 7 ("GenevaConvention Jjj"); and the Convention Relative to h e Protection o f Civilian Persons in Time of War, 6 U.S.T. 3 17

JV").


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conflict to which so m e prov isions of the Geneva Conventions might apply. Therefom , neitherthe Geneva Conventions nor the WCA regulate the detention of 31 Qaeda prisonerr cipturedduring the Afghanistan conflict.J1 ' 1 1

Pad JJJ discusses why the President may decide th3t Geneva 111, as a wh&, does notprotect members of the Taliban militia in the cunent situation. The ~ r e s i d i n ihas lheconstitutional authority to temporarily suspend our treaty obligations to A f ' a n i s l a n under theGeneva Conventions. Although he m ay exercise this aspect of the trealy po w er a1 his dismtjo n,we outline seve ral g o u n d s upon which he could justify that action here. In pmicular, he maydetermine that Afghanistan was not a functioning Slate, and therefore that the Taliban mililiawas not a government, during the period in which the Taliban was engaged in hostilities againstthe United States and its allies. Afghanistan's status as a failed State is s uf ic ie nl ground alonefor the President to suspend Geneva 111, and thus to deprive members of the Taliban militia ofPOW status. Th e President's constitutional p o l w to suspend performan ce of our treatyobligations wjth respect to Afghanistan is not restricted by international law. It encom passes thepower to suspend some treaties but not others, or some but not all obligations under a pmicuJa rtreaty. Should the President make such a detern~ination , hen Geneva I11 would not apply toTaliban and any failure to meet that treaty's requirements would not violate either ourtreaty obligations or the WCA.Part 1V exam ines jusrifications for a ny departlrrcs from Geneva JJJ requirements should[h e President decline to sus pend our treaty obligations loward Afg hanis tan. It explains thatcertain deviations from the text of Geneva IJI may be pcnnissible, as a matter of domestic law, ifthey fall within certain juslifications or legal exceptions, such as those for self-defense orinfeasibility. Further, Part N discusses Ihe President's authority lo find, even if Geneva 111 wereto apply, lhat Taliban members do not qualify as POWs as defined by the treaty.

In Part V, we ad dres s the question whether, in rllc absence o f m y G en eva 111 obligations,customary international Jaw requires, as a matter of federal law, that the President provide certainstandards of treatment f or a1 Qaeda or ' ~ a l i b a n risoners. W e conclude that customaryinlernational law, as a matter of domestic law, does not bind the President, or restrict the actionsof the United S tates military, because it do es not constitute either federal la w m ade in pursuanceo f the Conslitution or a treaty recognized under rhc Supremacy Clau se.1. Backarotrnd ond Overview ofrhe 1-VnrCrimesAcr ond the Geneva Cortvenrions

It is our understanding that your Depaflment is considering tw o ba sic plans regarding thctreatment of mem bers o f a1 Qaeda and the Taliban militia deta ined du ring the Afghanistanconflict. First, the Defens e Department intends to make available a fa cility at the U.S.Navy baseat Guantanamo Bay, Cuba ("GTMO"), for the long-term detention of these individuals, whohave come under our control either through capture by our military or lransfer fiom our allies inAfghanistan. At the present m oment, your Department has co nfin ed these individuals intemporary facilities, pending the construction o f a more permanent cam p at GTMO. While it isat ome might a rgue that these facilities are not fu lly in k eepin g w ith the terms ofwe understand that they meet minimal humanitarian requirements consistent with the

GTMO uthorities are


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providing these individuals with regular food and medical care, and that basic hygiene andsanitary st an da rd s are being maintained. You hav e fu rther informed us that your plans for alonger-term fac ilit y at GTMO are still under deve lopm ent.2ISecon d, yo ur Depanmenl is developing procedures to implemenl the President's M ilitaryOrder of No vem ber 13, 2001,which establishes military con~missionsor the trial bfvioja1jonsoft he jaws of w ar committed by non-U.S. c it h e n r' Th e question has arisen whether Geneva 111would restn'ct th e proposed mles, or even require !hatonly courts-mania1 be used to lry rnembenof a] Qaeda o r t h e Taliban militia for war crimes.

We believe that the WCA provides a useful starting point for our analysis of theapplication o f t h e Gen eva Conventions to the treatment o f de ~a in ee s aptured jn the Afghanistantheater of operations.' Section 244 1 of title 18 renders 'certain acts punishable as "war crimes."m e statute 's definil ion .of that term incorporates, b y reference, c enain treaties o r treatyprovisions relating to the laws of war, including the Geneva Conventions.A. Section 2441: An Overview

Section 244 1 o f Title 18 lists four categories o f wa r crimes. First, i r criminalizes "pavebreaches" of t he Gen eva Conventions, which ar e define d by treaty and will be discussed below.Second, it makes illegal conduct prohibited by arlicles 23, 25, 27 an d 28 o f the.Annex to [heHague Co nvention IV Respecting thc Laws and C usto nls o f War on Land, Oct. 18, 1907,36 Stat.2277 ('Hague Convention N3. Third, it cnnlinalizes violations of what is known as"commonarticle 3," which is a provision common ro all four di'th e Gen eva Conventions. Fo un h,jt cnm inajizes conduct prohibited by cenain orher laws of war treaties, once the United Statesjoins them. A House Rcpon states that the original legislation "carries out the internationalobligations of the Unired States under the Geneva Conventions of 1949 to provide criminalpenalties for cerlain war crimes." H.R.Rep. No. 104-698, at l (1996), reprinted in 1996U.S.C.C.A.N. 2166, 2166. Each of those four conventions includes a clause relating tolegislative implem entation and to criminalWe have discu ssed in a scparalc mc mr an du m the federal jurisdic tion issues that might arise concerningGuantanamo Bay. See Memo randum for William J. Haynes, 11. Gcne ral Counscl, Dcpamnen c of Defense, fr omPam'ck F. Philbin, Depu ty Assistant Anorncy General and John Y w ,Dcputy Assistant Anorncy General, Offie ofLegal C ounscl, Re: Possible HobeasJurisdicrion o w r Aliens Held in Guonronomo Bay, Cuba (Dec.28,2001).'See gtn eral ly Memorandum for Albcno R. Gomles. Counsel to the Presidcnr. from Pahick F. Philbin, D cpu ty

Assistant Attorney G en en l, O fi cc of'Lcgal Counscl, Re: Legoliry of he Use of Mi li l a~ y ommissions lo TryTerro risis (Nov. 6.2001).' he rule of lcnity requires thar the WCA be read so as lo ensure that prospective defendants have adequate noticeof the nature of th c acts thar the statute condemns. See, e.g., Casrillo u. UniiedSlctes, 530 U.S. 120, 131 (2000). Inthose cases in which the application of a treaty incorporated b y thc WCA is unclear, thcrcfore, the rule of lcnityrequires that the intcrprctive issue be rcsolvcd in the defendant 's favor.' hat common clause reads as follows:

The signatory Nations] undcnakc to enact any legislation necessary lo provide effective penal sanctionsfor persons com mh ing, or ordering to be commitred. an y o f the grave breaches of the present C onvention. ... Ea ch [signatory narion] shall be under the oy jg at io n to search for person s alleged to have co-fwd. o rto have ordered to bc comm incd, such grave brea ches, an d 5h311 bring such pcrsons, regardless o f theirfxfore its own courts.. . t m y l so , if it p re fe rs ,. . . and su ch persons over for trial toano thrr [signatory nation), providrd such (nation) has ma de out a p r i n ~ ancir c a x .


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In enacting section 2441, Congress sought to f i l l c e m h perceived gaps in the coverageof federal criminal law. The main gaps were thought (0 be of two kinds: subject matterjurisdiction an d personal jurisdiction. First, Congress found that "[~Jhe reare major , g a p in iheprosecutability of individuals under federal criminal law for war crimes comrpitpd againfi~ m e n ' c a n s . ' ~or exampk, "the simple killing of a[n American] prisoner of &asn was no(covered by any existing Federal statuk .' Seco nd, Congress found that "(t]he ability 10rnafiial members of our armed serv ices who commit war crimes ends when [hey leave rni]jtsy[Secljon 244 11would aljo w for prosecurion even afie r discharge." Congrcss consideredit important to filj this gap, not only in the interest of the victims of war crimes, but also of theaccused. "The Americans proseculed would have available all the procedu ral protections of theAm erican justice system. These migh t be lackin if the United Slates extradited the individuals

to their victim s' home countries for prosecution."' Accordingly, seclion 2441 erirninalizes formsof conduct in which a U.S.national o r a member of the Armed Forces may b e eithe r a victim or aperpe tra or.B.Grave B r e n c l l e s of he G e n e v a Conventions

The Geneva Convenlions of 1949 remain Ihe agreements to which more States havebecome patlies than any other concerning the laws ofw ar. Convention I deals with the treatmentof wounded and sick in armed forces in the field; Convention 11 addresses treatment of thewounded, sick, and shipwrecked in armed forces at sea; Convention 111 regulates treatment ofPOW s; Co nv e~ ~t io n ddresses the ireatmen1 o f citizens.WL-

The Geneva Convenrions, l ike lreaties generally, structure legal relationships betweennation-States, not between nation-Slates and private, transn~lionalor subnational groups ororganizations.10 Article 2, which is common to all four Geneva Conventions, makes the-- - -- -

Geneva Co nwnrion 1, an . 49 ; Geneva Con\*ention11, an. 50; Geneva Convention 111, ad. 129; Gcnc va Conv en tionIV, n. 146.6 H.R.Rep. No. 104-698, at 6, reprinted in 1996U.S.C.C.A.N. at 2 171.' d. at 5, r e p r i n d i n 1996 U.S.C.C.A.N. 8 1 2 170. In projecting our criminal law exn atem toria lly in order toprotect victims who arc United States nationals, co ng re ss was apparently relying on the in ~ern ation a]aw principleofp rssiv e personality. The passive personality principle " ' ~ s S C ~ S hat a state may apply law - paniculrrly criminalJaw- o an act committed ouuide its gcnitory by a person not its national where the victim of the ac t was itsnational.'" United Sfores v. R e x q , 134 F.3d 1 12 I , 1 133 (D.C. Cir.),


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appjjcat ion o f the Conve ntions to rc l~ ti o n s etween state panies clear. It sla tes that: I h c presentConventjon sha ll apply to all cases of declared war or of any other armed connid w/aich maynrisc benveen nva or ntore $ / h e High Conlracring Parries, even if the state of war is notrecagnizedby one of them."" Similarly, il states that "[tJhe Convention shallalsp apply tocases of partial or total occupation o f the t em ~ or y f a High Contracting Pa ny , e v p if the &idoccupation ~ n e e t s ith n o armed resistance." 1'

As noted above, Section 2441(c)(I) criminalires "grave breaches" of the ConventionEach of ;he four Geneva Conventions has a similar def init ion of "grave breaches.'' GenenConvention IJI defines a grave breach as:

wilful killing, torture or inhuman treatment, including biological experiments,wilfully causing great suffering or serious injury to body or health, compelling aprisoner of w ar to serve in the forces of the hostile Power, or wilfully depriving aprisoner ofwar of the rights o ff ai r and regular trial prescribed in this Convention,Geneva Convention Ill , arl. 130. As mentioned before, the Geneva Con ventio ns rquifc theHigh Contracting Paflies to enact penal legislation io punish anyone who commits or orders agrave breach. See, e.g., id m. 129. Furlher, each Stateparly has the obligation to search for andb*ng to justice (eithe r befo re its courts o r by delivering a suspect to anoth er Stale parly) anyonewho comm its a grave breach. No S tatc party is pernlittcd to absolve itself or a ny other natio n ofliability for committing a grave breach.

Given the spec ific defini tion of ''grave breaches," it bears 'noting that not a breaches of theGeneva Conventions are criminalized under Section 2441. Failure to follow some of (heregulations regarding the trcatrnent of POWs, such as dificulty in meeting aII ofthe conditionsset forth fbr POW camp condiiions, does not constitute a grave breach within the meaning ofGeneva Convention 111, art. 130. Only by causing great suffering or sen'ous bodily injury toPOWs, killing or lofluring them , depriving them of access to 3 fair trial, o r forcin g them to servein the Am led Forces, could [he United States actually commit a gra ve breach.

Section 244 1(c)(3) also defines a s a w ar crime condllct that "conslitutes a violation ofcommon anicle 3" o f the Geneva Conventions. Arricle 3 is a unique provision that governs theconduct ofsign atories to the Conve ntions in a parlicular kind o f conflicl that is nor one betweenHigh Contracting Parlies to the Conventions. Thus, comm on article 3 may require the UnitedStates, as a High Contracting Party, lo follow ccflain rules even if oth er partie s to the conflict a renot padies to the Conv en~ ion s.On rhe oth er hand, arliclc 3 requires S tate parties to follow on lycenajn minimum stand ards of treatment toward prisoners, civilians, o r the sick and wounded -standards fhat are much les s onerous and less detailed than those spe lled o ut in theConventionsas a whole."

betwem independent nations."); UrritrdS~otes ~ re/.Sirpop v. G~nrcio,109 F.3d 165, 167 (3 d Cir. 1997)("/T]rcarics are agreements b etw ccn nations.")"Geneva 111an. 2 (emphasis added)."Common A n k l e 3 rcsds in relevant pan 3s follows:


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Com nlon arlicfe3 complements com mon arlicle 2. Article 2 applies to cases of decJartd\var or of a ny o th e r amled conflict that m ay arise between wo or more of the Hi& Contncting) Panjes, even if th e state ofw ar is no, recognized by one of [hem." Comm on article ), 4 o ~ c v . r ~covers "armed conflict not of an international character" - a lvar that does not involve qar&border attacks - hat occurs wilhin the tem tory of one o f the High Contracting pan&. ;Com mon article 3's lext provides substan tial reason to think that it refers specifically t o acondition of civ il war, or a large-scale armed conflict between a State and an armed mo veme ntwithin its own tem tory. First, the text of the provision refers specifically to an armed conflic tthat a) is not o f an international character, and b) occurs in the tem tory of a state party to theConvention. It d oes not sweep in all armed conflicts, nor does it address a gap leR by commonarticle 2 for in terna tiona l armed conflicts that involve non-state entities (such as an in~ernatjona]tenonst organization) a s parties to the conflict. Fufiher, common article 3 addresses on ly non-jntemationaJ con fli ct s that occur within the te mtory of a single state party, again, Jike a civil war.This provision would not reach an armed conflict in which one of the parties operated from

multiple bases i n several direrent states. Also, the language at the end of article 3 states that"[t)he application o f rhe preceding provisions sha ll not affect the legal status of the Parties 10 heconflict." Th is provision was designed to ensirre that a state pa ny that observed article 3 duringa civil war wou ld not be understood to have granted the "recognition of the insurgents as anadverse parly."'4

mis interpretation is st~ pp om d y comm entators. One ell-known commentary statesthat "3 non-inrern ational armed conflict is distinct from an inl&alional armed conflict be ca use.of he legal sta tus o f the entities opposing each other: the parties lo the conflict are n ot.sov ereig nStates, but the go ve rn n~ en ro f single State in conflict with one or more amled factions w ith in itsterritory."'5 A legal scholar wri~ ingn the same year in which the Conventions were prepare d

In the case 01 rmed conflict not of an international character occurring in the territory of one of t k HighConhacling panics, each Party to the conflict shall be bound to apply, as a minimum, the following provisiorr~:(1) Persons taking no active pan in the hostitilics, including members of armed forces who have laid down [heira m nd those placed hors de comba~ y sickness, wounds, detention. or any other cause, shall in al l circumstancesbe bcated humanely, without any adverse distinction founded on race, color, religion or faith sex, binh or wc~lth ,rany other similar criteria-To his end, the following acts arc and &all re mi n prohibited at any time and in any placc whatsoever with

respect to the above-mentioned persons:(a) violence to life and person, in panicular murder ofall kinds, mutilation, cruel heahncnl and torture;(b) raking of hostages;(c) ounages upon personal dignity, in particular humiliaring and degrading neamnl;(d) the passing ofsenfenccs and the canying out of executions without previous judgment pronounced by a -regularly constifutcd court, affording aIJ the judicial guarantees u-hkh arc recognized as indispensable by ct-. , I t led

peopks.(2 ) The woundcd and sick shall bc collcc#d and cared for. .The application of the prcceding provisio~ kl l no1 affect the legal slams of the Partics lo the conflict.l3 Article 2's jcferencc to a state ofwar "not recognized" by a belligerent was apparently inicnded to refer toconflicts such as ,he 1937 war between China a n d ~ a ~ a n .oth sid& denied that a state of war existed. See Joyre A.C . Guneridgc, The Geneva Con~mrions 1949, 26 Brit///Y.B. Inr'l t. 294 ,298-99 (1949)." F ~ I Salshoven, Corrslrain~s n the H'oging o War 59 (1987)." Comm4n,0,-y on ,he Adhiona1 ProtocoL of 8 J m e 1977 10rhe Geneva C o n ~ ~ r t ~ ~ i o r ~ sf 12Afcgusr 1949, 31 9 1 ;9(Yvcs Sandor et a l. cds.. 1987)


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stated that "a conflict not of an internalional character occumng in the temtory of one of rheI4igh Contnci ing Panies. ..must normally mean a civil tvar."16

~ ~ ~ j ~ s i ~f the background to the adoption ofthe Geneva Conventions in,j%) confirmsour of common article 3. It appears that the drafiers of the Convqntjons had inonly the nvo forms ofsrmed conflict that were regarded as matters of genen't&erna,ion.Iconcern at the time: armed conflict between nation-Slates (subject to anicle 2), and large-scale

civil within a na~ion-State subject to article 3). TO understand Ihe context in which theGeneva Conventions were draffed, it will be helpful 10 identify three distinct phases in thedevelopment o f the Jaws of war.

First, [he raditional laws of war were based on a stark dichotomy between "be1ligcrencyWand uinsurgen~y."The category of "belligerency" applied 10 armed conflicts between sovereignStates (unless there was recognition of belligerency in a civil war), while the category of"insurgencyn applied lo armed violence breaking out within the territory of a sovereign State."lntemalionaJ law treated rhe two classes of conflict in different ways. Inter-state wars w aby a body of intemational legal rules governing both the conduct o f hostilities and theof noncombatants. By contrast, there were very few international rules governingarnled conflict within a state, lor states prefencd to regard internal strife as rebellion, mutiny andtreason coming within the purview of national criminal law, which precluded any possibkintrusion by other ~tata." This was a "cle~rly overeignty-oriented" phase of intcmatiorujlaw.I9

The second phase began as early as the Spanish Civil War (1936-39).nd extendedthrough the time of the drafling of the Geneva Conventions until relatively recently. ..During thisperiod, Stale practicc began to apply cerlain general principles of humanitarian law beyond thetraditional field of Slate-to-State conflict to "those internal conflicls that constituted large-scalecivil wars."'' Jn addition to the Spanish Civil War, events in 1947 during the civil war betweenthe Communists and the Nationalist regime in China illustrated this new tendency.'' Commonarticle 3, wllich was prepared during this second phase, was apparently addressed to armedconfljcts akin to h e Chinese and Spanish civil wars. As one commentator has described it,

article 3 was designed to restrain governments "in the handling of armed violence directedagainst rhem for the express purpose of secession or at securing a change in the government ofa16 Guncridgc, s~pro, t 300."See Joscph H. eale , Jr., 73eRecognitionof Cubon Belligerency, 9 Haw. L. Rev. 406,406 n.1 (1896)."See rite Prosmtror v. Dusho Todie (Jurijdicrion o / l e Tribunal) (Appeals ~ h i r n b cr f the fn tem t iom l CriminalTribunal for thc F o m r Yugoslavia 1995) ("~odic").105 I.L.R. 453,504-05 (E. Lautcrpacht & C.J. Grccnw*cds., 1997).

l9 Id. at 505; see obo Gcrald Irving Draper, ReJectiom on Low and Armed Con/licu 107 (1998) ("Before J 949, in~ h cbsence of bclligcrcncy accorded 10 rhc elcmc nts opposed to h e govcmmcnt of a Slate, thc la w ofwar . . .had M, pplication ro infcm l a m d onflicts. . Inrcm a~ional aw had linlc or nothing to say as to how the3-d rcbcllion was crushcd by rhc govcrnmcnl conccmcd, for strch mancrs fell within the domestic jurisdiction ofStates. Such conflicts wcrc ofrcn waged with great lack of restraint and cruclty. Such cond uct was a domesticmancr."). /To&, 105 j.L:R. at 507. Indeed, the evcnts orthe s h n i s h Civil War, in lvhich "borh the republican Gov ernme nt(of Sp ain] and third Stares rcfuscd lo recognize the IN alionalisrJ insurgents as b elligcrcnts," id. 31 507, m a y bercflccted in common Aniclc 3's rcferencr to he legal status of th e Panics lo #he onflict."

See id. a1 508.


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Slate," but even ofier the adoption ofthe Conven~ionst remained "unceriain whether [Anicle 31applied to fu ll-scale civil war.""The third phase represenls a more complele break than the second with thp traditional

"State-sovereignly-oriented approach" of international law- This approach gives c c n t d place oindividual human rights. As a consequence, it blurs fhe distinction between in tm 'ati& al andinternal armed conflicts. This approach is well illustrated by the decision of the InternationalCriminal Tribunal for the Form er Yugoslavia in Prosecutor V. Todk, which appean to take theview that common article 3 applies to all armed conflicts of any description other than those- between state parties, and is not limited lo internal conflicts bemeen a State and an insurgentgroup. In this conception, comm on a d c l e 3 is not just a complement to common article 2;rather, it is a catch-all that es tablishes standards for any and all armed conflicts not included incommon adcle z . ' ~

Such an interpretation of common arlicle 3, however, ignores the text and the context inwhich it was ratified by the United States. Jr the stale parlies had intended the Conventions toapply to all form s of armed conflict, [he y could have used broader, c leare r language.. interpret common a nicle 3 by expan ding its scope w l j beyond the meaning borne by its t a t iseffectively to amend the Geneva Conventions without the approval of the State parties to th eogreemenls. Furlher, 3s we have discussed, article 3 was ralified during a period in which thetradilional, State-centered view of international law was still dominant and was only justbeginrling to give way to a human-rights-based approach. Giving due weight to the state prac ticeand doctrinal understanding o f the time, the idea of an armed c.onflict behveen a natio n-S tate anda transnational ten on st organization (or between a nation-St% and a failed State harboring andsupporiing a transnalion ai terrorist organ ization) could not have been within 111eontemplarion ofthe draflersof common article 3. Conflicts of ~ he se inds would have been unforeseen an d w erenot provided Tor in the Conventions. Further, it is telling that in order to address this unforeseencircumslance, ~ i l e tare parties to the Geneva,Con ventions did not a ttempt to distort the te rm s of

21See Drapcr, Reflccrions on Low andArmed Co n/l i c~,upra, at 108." ome intcm ationd law authorities seem to suggest that common Anicle 3 is bcncr read a s applying to al l forms ofnon-international arm cd conflict. The Cornmentory on the Adnirionol Protocols o 8 June 1977 to the GenmwConwntions 0f/2Augu ~f /949. supra, afier frnt stating that Article 3 applies when "the government of a singleState /is] in conflict with one or m ore armed factions wi~ hi nts lcnitory," suggests, in a foolnote, that an armedconflict not of an internationa l cha racter "may a lso cxisl in which armed faction s fight against each other withou tintervention by the armed forces oft h e established govcmmcnt." M 1 4 3 3 9 at n.2. A still broad er interpretationappears to bc supponcd by the language ofth e decision ofth c InternationalCoun ofJus t ice (the "ICJ") inNicoroguo v. UniredSrores - which the United St31esrefused to acknowledge by withdrawing h o m the compulsoryjun'sdiction of the ICJ. M iI i~ or y nd Poromiliroty Acriviries I n on8 Agoirur Nicaragua flicarogua v. United Stares),(International Co un of Justice 1986), 76 I.L.R. 1,448, Q 2 I8 (E.Lauterpacht& C.J. Greenwood eds, 1988). ThelC J3 decision is probably best read to suggest that all "armed conflicts" are either international or no win ternation al,and that if they are non-in~emational, hey are governed by common M i c k 3. If that is the correct understanding,how ever, the result wvas m crcly sta ted a s r conclusion, without taking account either of thc precise language ofArlicle 3 or ofth e background to its adoption. M or c~ vc r.while it was true that one of the conflicts so which the JUwvas addressing i~ s c l f - IrJhe conflic t bc;ween the contrar' forces and those ofthc Government ofNicaragua"-of an in~ cm atio na l haracter,'" i d at 448, 12 19, that co nf lic t wvas recognizablycivil war b n w c n a Stale and an insurgent group, not a: ro d ic t b et w e n or among violent factions in a territory inch the State had collapsed. Thus there is substantial riaso n to question the logic and s cop e of the ICl'serpretation of co nm on Anicle 3, which, in any event, is not binding as a rnatrcr of do m es tic law on the United


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common anic le 3 to apply it to cases that did not fit within its terms. Instead, they draned twonew protocols to adapt the Conventions lo the conditions of contemporary hostilities." TheUnited Slates h3s not ratified these protocols, and hence cannot be held to the reading of the) Geneva Conumtionr they prprnotr. Thus, the WCA'S prohibition on violatioylof mmmonanicle 3 w ot ~ ld pp ly only to internal conff icls befween a state party and an insu!gtn( ~ o u R!;rather than to a11 fonns of amled conflicf not covered by common arlicle 2.

11. Appl icdon o/.WCA and Associaled Treoties 10a / Oaeda .We conclude that Geneva 111 does not apply to the a1 Qaeda terrorist orgqnitatjon.Therefore, neither the detention nor trial of a1 Qaeda fighters is subject to Geneva 111 (or heWCA). Three reasons, exanlined in detail below, supporl this conclusion. First, al Qaeda is nota State and thus cam 01 receive the benefits of a State party to the Conventions. Sec on d, a1Qaeda m en~ bcr s ail lo satisfy the eligibility requirements for treatment as POWs u n d a GenevaConvention 111. Th ird, the nature of the conflict precludes application of common art icle 3 of the

Geneva Convent ions.&reva )I/ does NOI apply to n non-Sme acror such as the 41 Qoeda /emorjstorgn/l;~nlio/r.A1 Qaeda is not a State. It is a non-governmental terrorist organization co m po se dof n len~b ers from many nafions, with ongoing operations in dozens of nations. Nan-

governmental organizations carnot be pmies to any of the international agreements henp v c n li n g the laws o f war. Conlmon article 2, which triggers the Geneva Convention provisionsdetention conditions and procedures for trial of POWs, is limited to cases of declaredwar or armed conflict "between two or more of the High ~ o n l r a c l i n ~arties." A1 Qaeda is not a] d ; g ~ ~o n i rn c t i n g arty. As a result, the U.S.military's treatment of al Qaeda members is no tgoverned by the bulk of the Geneva Conventions, specifically lhosc ~rbvisions~ 0 x c m i n gPOWs. Conduct row ards captured members o f a1 Qaeda, rherefore, also cannot co ns tit ut e aviola~ion f 18U.S.C. 244 I (c)(I).Secorid, nl Qnedn tnenlbers /ail ro s a r i s - the eligibility requirements/or t rea tment asPOlVs wt&r G o l e v a Convenrion I l l . It might be argued that, even though it is not a State partyto the Geneva Conventions, al Qaeda could be covered by some protections in GenevaConvention 111. Article 4(A)(2) of Geneva 111 defines prisoners of war as including not onlycaptured mem bers o f the armed forces of a High Contracling Party, bur also irregular for ce s suchas "[m Jen~ bers of other militias and mem bers o f other volunteer corps, including th o s e oforganized resistance rnovcments." Arlicle 4(A)(3) also includes a s POWS "[rn]embers of regular

armed forces who profess allegiance to a government or an authority no1 recognized by th eDetaining Power." Id. att. 4(A)(3). 11 might be claimed that the broad terms o f these pr ov is io nscould be srrctchcd to covcr al Qaeda.This view would bc mistaken. Arlicle 4 does not expand the application oi heConvention beyond the circumstances expressly addressed in com mon a nicles 2 and 3. Unless

P~otocolAddilional to the Gcncva Conventions ofJ2 August 1949, and Relating 10 the Protection of Victimsbm?d Conflic~s Protocol I), June 8, 1977, 1 I25 U.N.T.S. ; Protocol Addi~ionalo the Geneva12August 1949, and Relating to thc Prolccrion of Vic~ims f Non-lntcrn~tional m d Conflicts

11). June 8, 1977, 1125 U.N.T.S. 10.


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there is a co nflic t subjccf to article 2, aflicle 4 simply does not apply. If the conflict is o n e towhich aaic le 3 applies, then anicle 4 has no role because article 3 does not t rigger applica tion ofthe rest of the provisions of Geneva 111. Rather, article 3 provides an alternative set of standardsll,at on ly minin~ al umanitarian protections. AS we have explained, the co@ic\ wi th a]Qje& docs no1 fa11 within article 2. As 3 result, ankle 4 has no application. In o l h a words,anicle 4 cannot be read 3s an alterna~ive, nd a far more expansive, statement of t h i applicationof the Convention. 11 merely specifies, where there is a conflict covered by articfe 2 of heConvention, who must be accorded POW tatus.

Even if article 4, however, were considered somehow to be jurisdictional as w e l l asslibstanlive, captured members of al Qaeda still would not receive the prolections accorded 10pOW s. First, a l Qaeda is not the "armed forces," volunteer forces, or militia o f a sta te party thatis 3 party 10 he conflict, as defined in arricle 4(A)(I). Second, they cannot quali fy as V O I ~ ~ (force, n~ilitia,o r organized res is~ ance orce under article 4(A)(2). That a rticle re qu ires lhatmilitia or volun~eersfi~lfillfour conditions: command by responsible individuals, wearinginsignia, ca*ng arms openly, and obeying the Jaws of war. A1 Qaeda members have clearlydemonstrated that they will not follow these basic requirements of lawful warfare. They haveattacked pu rely civilian targets of no military value; they refused to wear uniform or insignia orcarry 3mls openly, but instead hijacked civilian airliners, took hostages, and killed. th em ; andtlley thcm sclves do not obey the laws of war concerning the protection of the lives of civilians orthe means o f Icgitirnale combat. As these requirements also apply to any reg ular a rm ed force~ ~ n & rtller treaties governing the laws o f armed conflict," 31 Qaeda members would not qualify[jnder an iclc 4(A)(3) either, which prov ides POW status .!o captured individuals who arenlenlbers of a "regular armed force" thal professes allegianci3^ o a g o w n m c n t o r au t h o r i ~ y otby he detaining power. Members of a1 Qaeda, (herefore, would no t q ualify fo r POW( r e~ tn len t nder arficle 4, even if it were somehow ihought that (hey were piirkip. l ing i nconflict covered by common article 2 or if arlicle 4 itself were thought to be jurisdictional innature.jrhir'f, the nnrlrre o/t/re co~rfictrecludes npplicnrion of common article 3 of th e Gen-

Comlenliortj. As discussed in Part I, the text of common anicle 3, when read in harm ony withcommon anicle 2, shows that the Geneva Conventions were intended to cover either: a)~raditionalwars berween state parries to the Conventions (article Z), b) or n on -in terna tiona l civilwars (anicle 3). Our conflict with 51 Qaeda does not fit into either category. It i s not anintem3tional war between nation-States because al Qaeda is not a State. Nor is this conf l ic t acivil war under article 3, because it is a conflict of "an international character." A l Qaedeoperates in many countn'es and cam ed out a massive international attack on the United S ta le s onSeptember 11, 2001. Therefore, the military 's treatment of a1 Qaeda members is not Ijnijtedeithcr by common snide 3 or 18 U.S.C.5 244 I (c)(3).

JIJ . Ap~licotion fthe Gette~n onventions to the TolibanMi/itia\ n e t h e r the Geneva Convenrions apply to the detention and trial of m em bers of the Talibana more difficult legal question, A f& m ist an has been a party to all four Geneva1956. Some h~ighl rgue that this requires application of the

i a g u ~ onwntion I V , Rcspcciing the L a w and Cusronls orWar on Land, Ocr. 18, 1901.36 Slat. 2277.


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Geneva Conventions to the present conflict with respect lo the Taliban militia, which would l)lentrigger the WCA. Noncthelcss, we conclude that the President has more than ampie grounds tofind tho1 our frea ly oblignlions under Geneva 111 roward Af&anistan were suspended during thepe&d ofthe conflict. Under Ariicle I1 of the Constitution, the President has the unilateral p w e rto srlspend whole treaties or parls of {hem at his discretion. In this part, we describe thePresident's constitutional power and discuss the.grounds upon which he can justify the exerciseo f that power.

There ore several grounds which mightthe President could exercise that authority here.First, the weight ofinformed opinion indicates that, for the period in question, Afghanistan w a s a"failed State" whose territory had been largely held by a violent militia o r faclion rather than bya government. As a failed state, Afghanistan did not have an operating government nor w as itcapable of fiuffilling its international obligations. Therefore, the United States could decide topartially suspend any obligations that the United States might have under Geneva III towards theTaliban militia. Second, there appears to be developing evidence that the Taliban leadership had

become closely intertwined with, if not utterly dependent upon, al Qaeda. This would hayerendered the Tafibon more akin lo a tenonst organization that used force not lo administer agovernment, bu t for terrorist purposes. The President could decide that no treaty obligationswerc owed to such a force.A. Cor~srifuriorial ttrhoriw

Article I1 of the Constitution makes clear that the President is vested with 311 of thefederal exccuiive power, that he '*shall be Commander in ~h%" that he shall appoint, with llleadvice and consent of the Senate, and receive, ambassadors, and that he "shall have Power, byand wjlh the Advice and Consent of the Senate, to make Treaties." U.S. Const. an. 11, 5 2, cl. 2.Congress possesses its own specific foreign affairs powers, primarily those of declaring war,raising and funding the military, and regulating international commerce. While Article 11,section I of the Constitution grants Ihe President an undefined executive power, Arlicle J, section1 limits Congress to "[a)ll legislative Powers herein granted" in the rest of Article 1.

From the very beginnings of the Republic, this constifulional arrangement has beenunderstood to grant the President plenary control over the conduct of foreign relalions. AsSecretary of Stare Thomas Jeflerson observed during the first Washington administration: "73econstitution has divided the powers of government into tluee branches [and] .. has declared that'the executive powers shall be vested in the President,' submitting only special articles of it to anegntivc by ihe sena~e." '~ Due to this structure, Jefferson continued, '[tlhc transact ion ofbusiness kith foreign nations is Executive altogether. I t belongs then to the head of thatdepartment, erccpt as to such ortions of it as are specially submitted to the Senate. &ceprionslbe construed strictly." ' In defending President Washington's aurhonty to issue the

lity Proclamation, Alexander Hamilton came to the same interpretation of the President'saffairs powers. According to Hamilton, Article If "ought . . . to be considered as. . . lo specify and regi~latehe principal articles implied in the definition of Execl~tive


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Power; leav ing the rest to flow from the general grant of that power."' As Tutu= C hi efl us ti ceJohn M arshall L ~m ous ly ecbre d a few years later, "The President is the sole organ b it h e nat ionin its external relations, and its sole representative with foreign nations. . ..Tin [ex=utjveJdepartment . . s entrusted with the whole foreign intercourse of rhe nation.. . 'qff r!I !: ;On rlle few occasions where it has addressed the quesrion, the Suprem e Co ud has lent itsapproval to the executive branch's broad powers in the field of foreign affairs. Res$onsibility forthe conducf of oreign affairs and for protectin the nalional security are, as he SupremeCour(has observed, "'cen ml Presiden tial domains.'' The President's constitutional pjmrsy f l o wfrom both his unique position in the constitutional structure and fiom the specific granis ofauthorify in M i c l e I1 making the President the Chief Executive of the Nat ion 'and theCom mander in ch ie l " Due to the President's constitutionally superior position, the SupremeCo un has consisten tly "recognized 'the generally accepled view that foreign po licy [&I th e ,province and responsibility of the ~x ec u ti \t e. " ' ~ ~his foreign affairs power is independent of

Congress: it is "the very delicate, plenary and exclusive power o f the President as sole organ ofthe federal government in the field of international reh-dons - a power which doe s not require asa basis for its exercise an act of congress.""In light of these principles, any menumerated execurivc power, especially one elating toforeign affairs, must be construed JS within the control of the President. A l t ~ o u g h heConstitution docs not specifically mention the power to suspend or terminate trealies, theseaurhorirics have bccn underslood by I he courts and long executive branch practice as belongingsolely ro tile President. The treaty powe r is fundamentally an executive pow er estab lis he d inm i c l e I1 of the Conslituljon, and power over trealy ~natters ost-mtificafion are within thePresident's plenary authoriry. As Alexander H am ii~o n eclared during the cont rov eis yov er the

Ncu~rajityProclamation, "rhough treaties can only be made by the President and Senate, theiracrjvity n~ay e continued or suspended by the President alone."" Cor nm enta lon al so ha vesupponed this view. According to the dra,fiers of the Resrorement (Tltird) o rhe ForeignRe/o/io,cr Low of rhe U ~ l i ~ e dtotes, he President has the power either "to suspend o r term ina tean [international] ag~eement n accordance with its terns," or "to make the determination thatwould justify rhe United States in renninating or suspending an agreement because of it sviolation by another parly or because of supervening events, and to proceed to te rminate o rsuspend the agreen~enton behalf o f the United ~ t a t e s . " ~ ~ndeed, the President's p o w e r toterminate rrealies, which has been accepted by practice and considered opinion of the threebranc~~es ,36ust include rhe lesser pow er o f temporarily suspen ding them. We have discussedrllese questio ns in detail in recent opin ions, and we follow their ana lysis here."4" lcxandcr 1+3nu'fto~ oc$crts No. I (1 793). rqrirrtcd in I5 The Pnpcrs o/A Iemn der Harnilron 33.39 (Harold C.Syrcn cr 31. cds., 1969)." O A M ~ Sfcong. 613-14 (1800).

'O Harlow v. Firqemld . 45 7 U.S.800.8 12n.19 (1982).31 Mron v. F~rrgera ld, 57 U.S. 731,749-50 ( 1982)." epormrenr of rheNary v. Egan, 484 U.S. 5 18,529 (1988) (quoling Hoig v. Agee, 453 U.S. 280,293-94 (198 1)).3 3 U me d S me s v. Cur~iss-Wrighr Lrpo rr Corp., 299 U.S. 304, 320 (1936)." Gmilron, P n r i / ; c u ~ o. 1, supra, a1 42.R~sm,e,nen/ Tltird)o rhe Foreign Relorions Lnw ofrhe United Slnres 4 339 (1987).Memorandum for Albcno R.Gonzdcs . Counscl 10 rhc President, from: Jay S. Bybee, Assistant Artorneycn rrd , Re: Aurhority o/rhe P raid cnr to Denormce rhe ABAI Trenry (Drc. 14, 2001); C o l d wa ~e r . Correr,6 1 f


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The cou rts have often acknowledged the President's constitutional pow ers with res pect totrcalies. Thus, it has long been accepted that the President may determine whethm a treaty hasI,@ because a foreign S i n e has gained o r lost its independence, o r because it has ~ n &otller changes in sovereignty." Nonperformance of a panicular treaty obligation may, i n thePresident's jl~dgrnent,ustify a decision to sbspend or terminate [he treaty." While Pre sident rhave unrcstncted discretion, as a matter of domesfic Jaw, in suspending treaties, they can basethe exercise o f I his discretion on several grounds. ~ o r 'e x a m ~ i e ,he President ma y de te m ine that"the cond itions essential to uhe treaty's] continued effectiveness no longer perlain.& He andecide to suspend trea(y obligations because of a fundamental change in circumstances, as theUnited States did in 1941 in response to ho sfi lit iu in ~ u r o p e . ~ 'The President may alsodetermine that a material breach of a treaty by a foreign government has rendered a trea ty no( ineffect as to that govenunent.42

Exercising this constitulional authority, the President can decide to suspend tempora"lyour obligations under Geneva 111 toward Afghanistan. Other Presidents have panially suspendedtreaties, and have suspended he obligations of rnultilatera1 agreements with regard to o n e of [heslate p d j e ~ . ' ~ he President could also determine that relalions under the Geneva Convenljons

F.2d 697, 706-07 (D.C. Cir.) (cn banc), vocnred and rernnnded w ith insrrucrions to dismiss. 444 U.S. 996 (1979);Scna e Cornm. on Foreign Relations, l06*Cong., Trenties ond Orher lnrernorional Agreernmrz: 771~& o/theCI,lircd stores S


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with Afgfunistan shouJd be restored once an Afghan government that is willing and able toexecute the counlry 's treaty obligations is securely estob~ished.~' A decision lo r e g d theGeneva Con\.enrions 3s suspended would not constitute a "denunciation" of the Conventions,'forwhich procedtires are prescribed in the ~ o n v e n t i o n s ~ 'The President need &q regard theConvenlions ns suspended in their entirely, but only in pari.46 J!Y !1 . : a

Among the grounds upon which a President may juslify his power to suspend beatjes isthe collapse of 3 treaty parlner, in other words the development of a failed state that co uld not .fulfill its international ob liga tions and was not under the control of any governm ent. This hasbeen implicitly recognized by the Supreme C O U ~ .n C/ark v. Allen, 33 1 US. 503 (1947). theSupreme Court considered whether a 1923 treaty with Germany continued to exist aAer thedefeat, occupation and partition of Germany by the v i c m h s W orld War II Allies. The Courtrejecled tile argument ~har he treaty "must be held 10 haw failed to survive the [Second WorldWar], since Gem~any, s 3 result of its defeat and the occupalion by the Allies, has ceased toexist as an independent national or international c o rn rn ~ n it y .' ~ ~nstead, the Coud held hat "thequestion whether a state is in a position to perform its treaty obligations is essentially a politicalquestion. Terlirlo'e)~ . Ames, 184 U.S. 270,258 [( I 902)J We find no ev id e~ cehat the politicaldepaflnlents have considered the collapse and surrender of Germany as pulling an end to suchprovisions of rhe treaty as survi\led the outbreak of the war or the obligations of either pally inrespect to ~h en r. . ' ~ ~n Clark, the Court also made clear that the President could consider whethe rGermany was able to perfom its intcnlational obligations in deciding whether to suspend outtreaty relarionship with her.

-Thus, suspension o f t he Ccn eva Conv entions as to Afghanistan \rould not affect the United States' r ela tio ns hi pl lnd~rhe Conven tions with other stale paflies."On June 20, 1876, for example, President Grant i n f o v d Congress rh ~ t c was suspending the extradition clauseofthe 1842 "Webster-Ash bunon Trcrlty" with Grcat:'Brkain. Convenrion as lo Boundaries, Suppressio n of S la veTrade and Ex tradition, Aug. 9. 1842, U.S.-Gr. Brit.,An 10.8 Stat. 572,579. Grant advised Congress that the releaseof nv o fugitives whose extradition was sought by rhc United SINGS ~mountcdo the abrogation or annulment o f t h eexmadition clause, and t h a ~he executive branch in rcsporuc wodd take no action to surrender fbgitivcs sought bythe B~itishGovernment unless Congre ss signified that it do so. The c l~ u s eemained suspended until i t wasre~c tivate d y the British Government's resumed pcrfonnance.

"see, Q.B., Geneva Con vention 111, an. 142. The suspension o fa heal)' is distinct from the denunciation ortennin~tion fone. Suspension is generally a milder measure than tcmu'n3tion, often being panial, tcnpomry, orcontingent upon circumstances that can be altered by the actions of th e pan ics to the treaty. Mo reover, at least in theUniled S~atcs,uspcnsion o f a treaty can be rcvcrscd by unilateral cxtcutiuc action, whereas tcmu'nation, whicha treaty, and which is there fore more disruptive ofinlern3tiona1 relationships, w.ould require Sen ate co nren t

bc undone.In gcncral, the panial suspcnsion of thc provisions of a t m I y (as distinct from both lcm~ination nd completension) is recognized as pcrnu'ssible under intcm a~io nalaw. Anicle 60 of the Vienna Convention on treatiession o f a treaty "in whole or in parr." "[UJnder both treaty law an d non-forciblt reprisalas a basis for responsive susp cnsio n it is clear that suspcnsion m y be only pan ial and nccd not suspen d ora n agrcem cnt as a whole, in contrast, for cxam pk, with treaty \\,ithdrawal clauses.'John No rton Moon,

Wirh /n~erno~ionolo w A Neglcc~edRemedy, 29 Va. J. Int 'I L. 881,932 ( 1999). It shou ldnoted, Irowc\,cr, that the Unrted S tares is not a pany to the V ~ C M J onvcntion on lwatics, although i t has heatedinternational law. This issue is explored in greater detail, it+ Pan 1IJ.C.331 U.S. at 5 14.nlso id at 508- 09 (President might have "formulated a national policy quite inconsistent with t k

of th c treaty).


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chrk demonstrales the Supreme COUII'S sanction for the Presideni's constitutionalauthority to decide the "'plilical question" whether our treaty with Germany was suspendedbecause Germany was no1 in a posirion to perform its international obligations. Equally here, the) executive bmnch could conclude ha t Afghanistan w ~ so1 "in a posilion to perform its lreaiyobljgationr" because it lacked, at least throughout the Taliban's ascendancy, a . functioningcentral government and other essential attributes of statehood. Based on such facts, the Presidenlwould have the ground to decide that the Nalion's Geneva 111 obligations were suspended as toAf&anis(an. m e President could further decide that these obligations arc suspended untilAfghanistan became a functioning state that is in a position 10 perform its Convenlion duties.The federal courts would not review such political questions, but instead would dek r to thedecision of the President.There are ample grounds for the President to determine that Afghanistan was a failed State,and on that basis to suspend performance of our Geneva 111 obligations towards it."' Indeed, thefindings of the State and Defense Depar~ments,of foreign leaders, and of expert opinion supportthe conclusion that Afghanistan under lhe Jaliban was withoul a functioning central government.

'Jhe co)lapse of functioning political institutions in Afghanistan is a valid justification for theexercise of the President's authority to suspend our treaty obligations towrds that country.Such a deteminntioll would amount to finding thal Afghanistan was a "failed state." A"failed State" is generally characterized by the collapse or neq-$ollipSe of State aurhority. Such

a collapse is marked by rhe inabilityof central authorities tdh~ainta in overnmenl institutions,ellsure law and order or engage in nomal dealings with olller governments, and by theprevalence of violence that destabilizes civil society and the economy.

An initial approach to the question whether Afghanistan was a failed stale is to examinesbme of the ~radilionalndicia of A Slate has failed when centralized gove-,entalauthority has almost completely collapsed, no central authorilies are capable of nlaintaininggovernment institutions or ensuring law and order, and violence has destabilized civil society and

"We should not be understood to bc saying that the President's basis for suspending the Geneva Conventions as toAfghanistan is merely the fact that Afghanistan underwent a change of government in 1996, after the ndiiarysuccesses ofTaliban. The gencral ruk ofintemtional law i s that trcrty relations survive a change o f g o ~ e ~ ~ r .See, e.g., 2Majerk M. Whiteman, Digest ofJnrernariona l &zw 771-73 (1963); J.L. Drier ly, n e Law o144-45 (6thed. 1963); ElcanorC.McDowcll, Co n~ mp or ar y rocrice ojthe UnireAS~ales ~ loring o Jnternariona/La,",7 1A m . Int'l L- 37 1977). nKgcncra1 rule is that treaties may still be observed cvcn as to State p a r k , thecunent govc-nts of which have been u~ccognizcd.See New York Chinese T v P rogra m v. U.E. Enterprises,954 F.2d 847 (2d Cir. 1992);JPP obo Resraremcnt F i r 4 ol rh e Foreign Relorions Law 0 1 t h ~ nited Sfares 5 202cmts. J, b (1987).'O It would be mistaken to argue that the conccp ofa' failed Slate is not legal in nature, and thus cannot bc taken intoatcount in determining whether to suspend our Gcneva 11.1 obligations toward Afghanisran. Legal scholars a s w l las political scientists have employed the concept for so ,time. Moreover, cvcn if takcn only as a category of+ 'olitical science, the term "failcdStatc" encapsula~es dtscription of strucrural conditions within a counlry such asrhat arc directly relevant to cons~deringwhether that country 113s lapsed for Iegolpurposes into a

ition ofstatelcssness.


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the economy." Borrow ing from the Resmren~entThir4 of (l.3Forrip RelationsLaw, w e mayconclude that a state has "failed" ifil cannot satisfy somc or a l l of l he lh ree t rad it ional t u b for"sratehood" unde r internation al law: i) w he ther the entity has a defined territory and populatjon;. i i ) whether the temlory/populstion is under the control of its own government; ar\d:iii) whetherthe entity engages in or has the capacity 10 engage i n formal rebfion s with othe r $tates,J2State De p a ~ m e n t as resfatcd this formulation by ebborrting a four-pad lest fd i & te & & j)whether the entity have effective control over a clearly defined temtory and population; ii)whether an organized governmental adminislnlion of the territory exists; iii) whether Be enti tyhas the capacity to act effectjvejy to conduct foreign relations and to ful f i l l in lemat iona~obligations; iv) wh ether the internationa l com mun ity recognizes the

We want to make clear that this Office does not 11 ne access to 311of the facts relafedtothe activities of the Taliban militia and al Qae da in Afgh anism . Nonetheless, th e av ai la bl e factsin the public record would s~lp po rlhe conclusion that Afghanistan was 3 failed St at c- ncludingfacts that pe-existed the military reversals suffered by the Taliban militia and.the formalion ofthe new transitional government pursuan t to the Bonn Agreement. Indeed, there a re g o o dreasons to doubt whether any of the conditions were met.

First, even before the outset of the co nflict with the United Stares, the T ali ba n m ilitia didnot have effective conirol ov er a clearly defined lem lory and population. It is unclear whetherthe Taliban militia ever fully controlled most o f the temlory of Afghanistan. A t the time thatthe United States air strikes began, al least ten percent of the country, and the populat ion wi thinthose areas, was governed by the N orthern A lliance. Indeed, !he facts suggest lhat Afghanistanwas divided benveen different tribal and wamng f3ctions, rather ~ h a n ontrolled by any centralState. The Taliban militia in essence represented o d y an clhnicaliy Psshlun m ove me pt, o "tribal

3

'''Ttates in which insti tutions and law and order haye lorally or panial ly col lapsed under the pr essu re an d a m i d 9the confusion of cmpting violence, yet w hich sub si n as a ghost ly prcscncc or1 the world map, are n o w co mm on lyreferred to as 'failed States' o r 'frots sans gouvernnwment. * Daniel Thurcr, The FndedSrare nnAInremoriono/Low, jn tem riona l Review of the Red Cross No. 836 ( D ~ c . 1, 1999), available a t l~t~:l~~\.\v~~~.irrc.ore/cne/re~iew(visited Jan. 10,2002). Somctvhat difTerenl tests ha ve been used for determining wheth er a St ate has "failed." First,the most salient characteristic o f a "failed State" se em s10 be the disappearance of a "cenrral government," YonmDinstein, 7;he nirreenrh WoIdemorA. Sol/Ltwure in /nrernarronnl Lmv, 166 Mil. L- ev. 93, 103 (2000); see alsoid. ( " ~ 1 1hat remains is a mult ipl ici ty ofg rou ps of irregular ro mb a~ an ts ishling ea ch other."). Closely r e l a t e d l othis test, but pcrh jps som ewhat broader, is the definitio n o f a "failed Slate" a s "a sinration w here the g o v e r n m e n t is

10 discharge basic governm ental funct ions with respect to its po pu l~ ce nd its territory. ConscqucntJy, lawsmade, cases are not decided, order is not preserved and sociclal cohesion de ~c ri on te s.Basic scrvicu such asare, education, infiasrructure maintenance, tax col lect ion and ofher funct ions and serv ices r en de red byauthorities cease to exist or exist on ly in l i rni~ed reas." Ruth Gordon. Gror*ing C o n s t i t u ~ i o ~ ,a. J. Const. L. 528.533-34 (1999). Professor Thurer di s tinguishes three e lcmcnts ( rcspcct ive ly, ~ e n i t o r u l ,rize a "failed Siale": 1) fai lcd Slates undergo an "impl osion ra th er than anosion of th e srrucrurcs of power and authori ty, the disintcgral ionan d desrmcturing of Sta tes ra the r chrn t h e u) they experienc e "the total or n ea r t o t d b r c ak d o w o f s r ~ c t u r e s u a r a n ~ c ei n gbw nd order;"d 3) there a rc m rk e d by "the absence of bodies capa bk , on the one hand, of represent ing the St at e at t h eional level and, on the other , o f being influ enced by the outside \\*orid."

Rps,otprnen, c h i 4 ojrhe Foreign Rela~ions.aw'o/rhe U~rtred I N ~ S 201 ; ee SO 1933 M o n t e v i d e oDuties o f States, art . J, 49 Stat. 3097.25 Am . J. Inc'l L. Supp. 75 (1934).lcanor C. M c D o ~ w l l .Conremporo/y Prncrke o rlw Utrired Srnres Relnrrng 10 lnlvrnnrionnl h , v . 7 1 A m . In1137 (1977).


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that did not command the allegiance of other major ethnic groups in Afghanistan andthat was apparently unable to suppress endemic violence in the country. As a prominen[ writeron the Taliban militia wote well before the current conflict began, "Jelven if [the Taliban] w c ~) to conquer the nodh, it would not bring riability, only continuing guen-illa war by the non-Pashtuns, but this lime horn bases in Cenlral Asia and Iran which would funher des!abilize theregion.""

Second, again even before the United Stares air sln'kes and the successes ofthe NodhernAlliance, an organized governmental administration did not exist in Afghanistan. One notedexpert on the Taliban has concluded that the country hadceased to exist as a viable slate . . . . 7he entire Afghan population has beendisplaced, not once but many limes over. The physical destruction of Kabul hasturned it into the Dresden of the late twentieth century. . .There isno semblanceof an infiastruclure that can sustain society -- even at the lowest common

denominator of poverty. . . .The economy is a black hole that is sucking in itsneighbors with illicit trade and the smuggling of drugs and weapons, underminingthem in the process. . . . Complex relalionships of power and authority built upover centuries have broken down comple(ely. No single group or lender has thelegitimacy fo reunite the counlry. Rather than a nalional identity or kinship-tribal-based identities, te~-~itonalegional identities have become paramount. .. T]heTaliban refuse 10 define the Afghan slate they want to constitute and rule over,largely because tl~ey ave no idea what they want. The lack o f3 central authority,state organizations, a methodology for command a& control and mechanismswhich can reflect some level of popular pallicipation .. make it inipossible formany Af&ans to accept he Taliban or for the outside world to recognize aTaliban government. . . No warlord faction has ever felt itself responsible for thecivilian population, but the Taliban art incapable of carrying out even theminimunl of developmental work because they believe that Jslam will take care ofeveryone.56

Another expert had reached similar conclusions before the outbreak of the conflict:AfghanisIan today has become a violent society, beren ofpolitical institutions thatfunction conecfly and an economy that functions at all. When this i s coupledwith the destruction of population and the physical infrastructure . . ., it becomesclear that Afghanistan is a counlry on the edge of collapse, or at least profoundtransformation. . . . With the Taliban, there are few meaningful govemn~ental;stnrctures and little that actually function^.^'


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. Th e S tat e Depanment has come to similar concfusions. In testimony early in Octoba2001 before the S ena te Foreign Relations Committee's Subcommittee on Near East, an d S o u thAsian Affairs, Assistant Secretary of Slate h r S ol ~t hAsian Affairs Christina Rocca explainedthat: 1 1

! ![tlwen ty-two years of cocflict have steadily devastated [Afghanistan], de st rb yi dits physical and political infrastructure, shattered its institutions, and wrecked itssocio-economic fabric. . .The Taliban have shown no desire to provide e vm themost rudimentary health, education, and other social services expected'of anygovern men t. Instead, they have chosen lo devote their resources to waging wa ro n the Afsh an people, and exporting instab ility to their neighbors."Rather than performing normal government functions, the Taliban militia exhibited thecharactefistics o f a criminal gang. The United Nations Security Council found that th e T al ib anmilitia ex tracted massive profits from illegal d n ~ grafficking in Afghanistan and subsidizedtenoJ-jsm from those revenue^.'^

Third, the Taliban militia was unable to conduct normal foreign relalions OF o fulfil) itsinternational legal obligations. Publicly known facts suggest that the Talibnn was un ab le to obeyits jnt em a~ ion al obligations and to conduct normal diplomatic relations. Thus, the fal ibanmilitia consis tently refused to comply ki th United Nations Security Council Re so lut ion s 1333(2000) nd 1267 1999), which called on it to surrender Osama bin Laden to just ice and to takeo ther act ions to abate terrorism based in ~ f ~ h a n i s l a n . ~ ~hose resolutions also called on allSlates to deny permission fo r aircran to take of f o r lo land ifi'hey were owned o r ope rat ed by orfor the Taliban, and to freeze funds and other resources owned or controlled by the Taliban.Reportedly, th e Taliban m ilitia also may have been unable to extr ad i~ e in La den a t the request

of Saudi Arabia in September, 1998, despite its close relations with the Saudi gove rnm ent. As a

" United S t ~ t c s cpanmcnt of S ta le , ln ~e m~ t io na lnformation Programs, Roc?n Blames Toliban for H um an ito tia nDisaster in AJghonisian (Oct. l0,2001), atailable or h t ~ ~ ~ ~ ~ ~ \ ~ w . u ~ i nf ~ . s t ~ t c . e o \ ~ ! r c~ i o n ~ ~ ~ n r a ~ ~ a s ia l a ~ e h arert200I/lOIOroca.htm (visited Jan. 10, 2001).''See U.N. Sccu riry Coun cil R csolulion 1333 (2000).av aila ble a t /trm://lnr-n: r t n . f ~ r y / ' D o c s / : s ~ r ~ s / ~ ~ / r ~ ~ Ij j ~ . ~ , / f(find ing that "the T aliban benefits directly from the cultiv ation o f illicit opium by imposing a lax on i ts prod uct ionan d indirectly bcncfits fiom the processing and h afi ck in g o f such opium, and .. . hese substanlial resourcesstrengthen the Taliban's capaciry to harbor tcnorists"). Th e Uniled Slates Government has am ass ed sub sta nt ialevidence that the T aliban has condoned and profited from narco-hafficking on a massit'e scolc, with diusmouscn ic t s on ne ighboring counmes. See 77ie Taliban. Terrorism, and Drug Trade: Hearing Be f ie /he Subcomm. on

Crim inal Justict. Drug Policy and Hrtrnan Resources o/the House Comm. on Government Re fom , 107th Cong.(testimony of William Bach, Director, Of ic c of Asia. A fr ic ~. urope, NIS Program . Bureau o fln tcr na tio na lLaw Enforccmcnt Aflairs, Depam ncnt o f State; tcstirnony ofA sa Hutchinson, Admin istrator, Dr ugU.S.Depamncnt oflustice).

U.N. Security Council Resolution 1333 "snongly con dernn~cd]" he Taliban for ;he "sheltering a n d training o frists and (the) planning o f terrorist ac~ s," nd "dcp lorlcd) thc fact that the Taliban continues lo p r o v i d e a safeama bin Laden and to allow him and o t h t ~ sssocia ttd with him to operate a network of tmo n ' s t t ra in ing-conhollcd tcm'tory and to use Afghanistan as 3 base from which to Sponsor inter nat ion alU.N. Security Council R esolution 1 14, 13 (1998) enjoined the Taliban to stop provid ing aPU.N.Security Council Resolution 126 9.12 (1999), slated that t he Taliban'so com ply with the Council's 1998dcnwnd consrifutrd a threat to the pracc . See Scan D.Murphy, Egorrs toCusiod'ofO m m a Bi n f-nden, 94 Am . 1. Inf'l L.366 (2000).


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result, the Saud i gove rnm ent expel led the Afghan dqP dnfiirrs." The Taliban's continuingrole in sheltering and supporting those believed to be responsible for the lerron'st attacks ofSeptember I I , 2001 placed it in clear breach ofinlemafional law, which r equ ired il to prevent the) use of it s territory a s r launching pod for al tr ti r against ah e r nations? d4I! has been sugge sted by governmen! offkids and independent p re ss rdports thatTaliban militia had become so subject to the domination and control of al Q ae da that i t co ul d notpursue independent policies with respect to the outside world43 Former Ambsssiidor R o MOakley described rhe relationship as "very close. The Taliban and bin Laden, panicularlyMullah Omar, go way, way back . . [Bin Laden] has helped the Taliban with material suppodsince they began their movement in ~f~hanisfan.'" Richard Haass, Director of the StaleDepanment 's O ni ce o f the Policy Plaming t a f c has noted that the Taliban "have acceptedsl~bstantial inancial su pp on from and proved themselves subservient to" a1 ~ a e d a . " A1Qaedpapparently supplied the Taliban regime with money, materiel, and personnel to help it gain lheupper hand in ils ong oin g battles rvilh the Northern ~lliance." Because a1 Qa eda w as ca pa bl e of

rnusten'ng more formidable military forces than the Taliban a1 any given point, and becausefailure to prefect bin Laden would have cosl the Taliban the support of ra dic al Islarnists, it maywe)] have been impos sible for the Taliban lo surrender bin Laden 3s directed by th e UnitedNations, even if it had been willing 10do so. While 3 policy decision lo violate international law

' 'see Yossef Bodansky, Bin Laden: 7he M an If710D ~ c l a r e dWar on Atncrica 301 -02 (2001)."sre Roben F. Turner. Jnternorio nal Laiu'nnd rlte Use of For ce in Responsf lo rhe World Trade Center ofidPentagon Auocks, ai~ ailo ble 1 h n p ~ ~ u r i ~ t . J a ~ ~ . p i n . e d u / f o r u m / f o m m n ~visited Jan. 10,20 02) ("If (as hasbeen cbim cd by the U S and UK govcrnrncnrs) bin Laden masterminded ~ h c a rk s on Ne w Yo rk and \Varhinglon,Afghanistan is in brcach of its s tare responsibili ty to take rcasonablc measures to prevent i ts ~ e ~ t o r yrom beingused to launch attack s against other states. The United States and its allies thus hmOe legal rig ht to v iola teAfghanistan's tcn iton al integrity to dcsrroy bin Laden and related tc n or i~ largets . If th e Tal iba n elects to joinforces with bin Laden, it, too. bcco me s a lawfu l targct.");ser al so W. Michael Rcisman, lr irern ariona lLegalResponses io f e r r o r i ~ m , 2 Hous. J . lnt 'f 1.3.40-42,5144 (1999)-63 See, e.g., Mich ael Dob bs & Vcrnon Locb, 2 U.S. . iargtrz Bound by Fare, Wash: Post. Nov. 14, 2 00 at A22("According lo Thomas Gouttierre, an Afghan cr pc n a( the University of Nebraska and a form er UN dviser, the so-called Afghan Arabs surrounding bin Laden w crc much more cducatcd and anic ulate than the o ften illite rate Talibanand succeeded in convincing them that they were at the head o f a w orld-wide Islamic renaissance. 'A l Q a c d a e nd edup hijacking a large pa n o f the Taliban movement,' he said, noting that [Taliban supre me religio us lc adcrMotiammcd) Omar and bin Laden were 'very, vcry tight' by 1998."); Pcter Baker. Dufecror Sajx B in L a d e m H a dCash, Tolibon In His Pocket. Wash. Po st, Nov. 30, 2001 at A 1 ( r c ~ o n i n g laims by former Ta l iban of i c i a l o fa lQacda's corruption o f Taliba n ofliciab)." Online News How: IXe Talibnn (Sept. 15,2001), oiloilable nt http:~i~~~~~~~.nbs.orbfn~~~shour/bh/tenorism/~uld ~ c O l ~ t 0 1 i b ~ 1 1-1 5.html (visited Jan. 15. 2002)." The Bush Adminkrrofion 3 Response ro Seprember lld- nd Beyond, Rem arks to t he Cou nci l o f Fore ign .Rcjatiom (m. 5, 200 J), availableor l ~ t ~ ~ / ~ ~ ~ w ~ v . y ~ l e . c d ~ ~ A ~ ~ ~ ~ ~ ~ c b I a ~ ' ~ I ~ n ~ s c v tI h a a s s 001 htm (visite d Jan.

15,2002).M The so-called "55" Brigade," a military force consisting primarily of Arabs under Sy rian and Saudi commander s ,was based outside of Kabul and was nain cd, maintained and paid for by al Qaeda. It "provided crucial suppo l l toTaliban forces during offensives against the Non hern A fliance over rhc past five years." M ich ae l Janscn , US/ocwc.d iniriolly on bin Lode n Mercenaries, The Irish Times on the Web (Oct. 30,2001 ). ovoila ble orI~np:Nw~\.w.ir~l~nddcoc~v5~a~ri~~~or1d/20O1~130/wor6.Iitm (visited Jan. 15, 2002). According to s o m e repofis,~ h e s e1 Qacda fighters were the most aggrcssivc and i de ~o gi ca lly ornmined forces availa ble to t he Ta l ib anIcadcrrhip, and Myre uscd to control othcr Taliban u nits./ser also Michael h ra ni sh & Jndira A.R. L a k s h m a m n ,Par tners in 'Jihad': Bin La de n Ties ro Tolibon. Boston Globe, Oct. 28,2001, at A I . This ar t icle contain$csprcially dctailcd inform3tion about the close linkages bctwecn the IWO nlovemcnrs an d their leadcrs.


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,vouJd not be gr ou nd s to deny statehood, ifa l Qaeda - a non-governmental terrorist organ izatio n- such power within Afghanistan to prevenl its alleged rvlers fiom taking actionagainst it as ordered by the U.N., his would indicate that the Taliban militia did not exercise) s uf icien l g o v c m ~ e n t a l ontrol within the t em ior y to fulfill its inlernational obligationq.The Talib an rnilith's failure to carry out its international obligations becam; evkn fu nh erapparent dur ing th e conflict itself. During the United Stales' campaign in Afghanistan, S e re ta ryRumsfeld noted that the Taliban "are using mosques for amm unition storage areas.using mosques for command and control and meeting places. Th ey are putting tanks an d

afijjJery pieces in d o s e proximity to hospitals, schools, and residential are as d7 In a of"Fact Sheets" issued during the campaign, the State Department described in detail many of heatrocities committed by the Taliban and a1 Qaeda before and during ihe United State' mililaryoperations. T he se included massacres of both pn'soners and civilians. For example, the Sl at eDepartment reported that in August, 2000, the Taliban had "executed POWs in the streets ofHerat as a less on to the local population.'76a The S tale De pan me nt also repo ned on N ovember 2,2001 that "[tlhe Tal iban have put the Afghan civilian popu lation in grav e danger by deliberateJybiding their so ld ie rs and equipment in civilian areas, including in mosques.'" Ac cordi ngState, the Taliban "massacred hundreds of Afghan civilians,-includin women and children, inf!Yakaoloang, Mazar-J-ShariF, Bsmiyan, Qezelabed, and other towns." O For example, the StateDepartment noted, a repon by the United Nations Secretary General regarding the July, 1999,massa cre in the S ho maili Plains stated that "[t)he Taliban fo rces, w ho allegedly carried out theseacts, treated the civilian population with hostility and made no distinction betweencombalanfs and non -cor nba tan~ s."~~ll of this evidence goes to prove that the Taliban militiarefused to follow the Jaws of armed conflict, whicfi, besides independently providinpgrounds for a presidential suspension of Geneva 111, also demonstrate th3t Afghanistan hodbecome a failed state and was under the control not of a government but of a violent terrorist

SrOl'P-Founh, the Taliban militia was .no1 recognized as the legitimate government ofAfshanistan by the United States or by any member of the international community exceptPakistan. Ne ither the United States nor the United Natio ns ever recognized that the Ta lib anmilitia was a govemment. The only hvo other States that had m aintained diplomatic relationswith it berore the current conflict began (Saudi Arabia and the Uniled Arab Emirates) soon

67 Tronscr@r: Rum/& Says Taliban FunctioningAs Military Force Only.supra.a act Sheet on A1 Qaeda and Taliban Atrocities (released Nov. 22,2001 by Coalifion Information Center), .ovoifab~e t htqx/iuw-v u s i n f o . s t a t e . ~ ~ ~ ~ i ' t o ~ i c ~ V ~ ~ V ~ c n ~ r j O I12301.h i visited Ian. 15,2002). The source citedfor this panicular repon was the Defense Dcpamnent.49 facr Sheer: Taliban Acrionr Imperil A'han Civilians (Nov. 2 , 200I), ovailoble at hm~~u .u~~~v .us i~~ fo .s t~ tc .~ ' ov !topic3Vpol/arror,'O 1 1 10203.h tm (viskcd Jan. 15,200 2). Funher, IJX State D cpartmcnt pub licized repon s Yrom 771eIVa5hingron Post that the Taliban was using entire villages as human sh ield s to protect their storkpilts o famrnunirion and weapons, I hat hey were relocating the police ministry in Kandahar to mosques, that they had takenover NGO ~ e l i ~ f o r g a n i z a ~ i o nuildings, and that they were disco vered mansporting tanks and m n a r s hells in theguise of humanitarian relicT. Fact Sheet: nre TafibanJ of the ~fg ha nPeople (Nov. , 2001), awilable orh1~::/~~~u.w.11si~~f0.s1atc.u0~/1opicallpc1VtcnoriO110608. Jan. 15,2002).j0 ld ." A. (quoting repod; no c it~ t io n iven).


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se rer ed them." Even Pakistan had wi th dra m its recognition before the end of host jlitisbetween the United States and the Taliban forces. Th i s rariversd refusal to recognize the T al i ba nmjjjtja as a government demonstrates that other nations and the United Nations concuned in ajudgm ent that t he Taliban mililia was no government and lhaf Afghanistan had ce+ZM t o o p e r a t e3s a nation-Slate. 1;

Indeed, the cabinet departments of the U.S. Government best pos ilioned . '!~ d e te rn in ewhether Afghanistan constilured a failed state appear to have reached that conc lusio n some timeago. Secretary o f Defense Donald Rum sfeld, for example, declared at a Nov em ber 2,2001 pressconference hat the "Jaliban is not a government. The government 01Afghanislan does not existtoday. The Taliban never was a government as such. 11 was a force in the c ou nt ry that is notsubstantially w eakened - n many cases cloistered away fiom lhe people.n73 Seactrry Rum sfeJdhas made substantially the same remarks on several other occasions- On Ocrober 29, 2001, hedescribed the Ta liban as "an illegilimale, un-elected group of tenonsts."" And on Novcmba 4,2001, he staled at a press conference with the Foreign Minister of Pakistan that "Taliban i s notfunctioning a s a government a s such. There is really not a government to speak of inAfghanistan today."':' On Novem ber 11, 2001, the Secretary emphasized the extent lo whichAf& anistan had fallen under the control of a1 Qaeda: "for all practical purp oses, th e a1 Qaedahas laken ov er the country."76 Secretary Rumsfeld's final statement indicates his belief that "0real governm ent functioned in Afghanislan, but rather that groups of armed, violent mi l i tan ts hadcome info control.In the recent past, the State Depa rtment took the same view. Ne ar th e 'start of theconflict, the B ureau o f South Asian Affairs found that '*~t]i;ere is no fu nc tio ni ng c e n t n J~ o v e m m e n t in Afghanistan). The country is divided among fighting factions. . . The TalibanlisJ a Islamic movement [that) occupies about 90% of the country."77' U nd ers ec re tar y ofState Paula J. Dobriansky said on October 29, 2001, that "young Afghans cannot remember atinle when their country really worked. There was a lime - a little o v a 20 years a g o - whenAfghanistan was a functioning state, a rne6ber of the world commanity. . . Un fortun ately it is

" ee A Look ot th e Toliban, USA Today,Sepf. 30,2001, awi/oble at h~ : / / \ ,ww .u s ~ t od rv , c om~nc~world/Z00]kl1cmliban.hrmvisited Jan. 10,20 02). Indeed, Pakista n had been thc only country in the w o r l d thatmaintained an embassy in Kabul; the ovcrwhclming majority of Slatcs and the United Nations recognized exiledPtcsidc nf Durhaouddin Rabb ani and his govcrnmenf a s !he coun try's Jegal authorities. See Tal iban rncr ics m o w tohorrogeploy, A uug. 8, 2001, availa blc sf httu:Nwww .iancs.codrcr i o t d ncwslasia ~ ~ c i f d n e u l r l j i d l'id01 0808-I-n-shmrl (vis ited Oct. 19,2001).'' r r r e ~ a n u ms fr ld M edia A v r i l a b i l i ~m Route to Moscow (NO*. 2 ,2WI) , ava i lob l r a rhttp://w~.w. a Ic.cd~r&w \ ~ ~ b / av a I o d s cp f I dod brirf64.htm (visited Jan. 15. 2002). a''Rtrms/PIdSap Taliban toBlamefor Castdfies (Oci.29,2001), owlable or h~://~ww.c~s~nf0.~1a1~~~.0~~/1o~ic~ o l / t c ~ o r ~ 0 1 1 0 2 9 0 5 : h m rvisited Jan. 15,2002)."' Tronscri~t: Rum/e/dSayr Toliban Func tioning As Mi/itaty Force Only (Nov. 4 ,2001), a ~ n i l o b le thIrp:ww.~sinfo.st~e.8~v~~Pica~PO~fen~r/~0403.htm (visited Jan. 15.2002).''R~tms/eldo n ~ / g h o n i s t o nDevelopments o n "Fox flews Sundqv." Nov. f 2,20 0 I) , avai/ab/e nrhttp:Nw~v.asinfo.st~t~.~0v/1o~ica1/~~len0r/l12W.hm (visited Jan. IS, 2002).77 BackgroundNote (O ctok r, 2001), ovoilab/e ot h t 1 ~ : ! / w \ \ ' ~ . s t ~ r ~ . ~ 0 ~ : r ~ ~ s / b e n l i n d c x f ~ i = 5 8 0visited Jam

10, 2002). by ihc Burea u of South Asian 'ATfa iq/~ee also Rcutrrs AlenNet - Afghanis tan , Cou nr ty"There arc no slate-cons~ituwd m d orces. 11 is not possiblc 10 show how ground forces*equipment hasivided am ong lhc din eren t iactions.'*), av ui lab le atermr~.or9/1hefa~~s/~o11ntrroi'1~247~?vrrsi0nf(visircd Jan. IS, 2002).


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no w dificult to remember that functioning ~f~ ha nis tan ."" As recently as Dec em ber 12, 2001,the Slate Department's O f i c e o f Jnlemational Information Programs, drawing on Coa]itjonJnfonnation Center materials and media reports, stated that both the Taliban and al Q a e d ~terrorist organizations," an d characterized the Taliban's leader, Mullah Ornar, a s "a

! !Some in~ em ati on al ficials concur with the views o f our Government. La khd ar &himi,for aample, the Uni ted ati ions medialor in Afghanistan and a former Algerian ForeignMinister, described Afghanistan under the Taliban as a "failed-state which loo ks like an i n f e c t djuound."" To ny Blair, the Pn'mc Minis lcr o f Great Britain, on a visil to that country this month,declared that "Afghanistan has been a failed slate for too long and the whole world has pai'd theprice.""

Based on the foregoing, it is apparent that the publicly-available evi den ce w ould supportthe conclusion that Afghanistan, when largely controlled by the Taliban militia, failed some, andperhaps all, oft h e ordina ry tests of statehood. Nor do we think that the military successe s of th eUnited Sta tes and the North ern Alliance change that outcome. Afghanistan was effectivelystateless for the relevant period o f the conflict, even ifafler the Bonn Agreement it became aSta te recognized by the Un ited Nations, the United States, and most o ther nation^.'^ ThtPresident can readily find that at the outset of th is conflict, when th e country w as largely in th ehands of th e Taliban militia, there was no functioning central government in Afgha nistan thatwas capable ofp rov idin g the n ~ o s t asic services lo the Afghan population, o f suppressingendemic internal violence, o r of maintaining normal relations with other governm ents. In otherwords, the Taliban militia would not even qualify as the deficro government ofAfghanistan.Rather, it would have the status only of a violent faction or m&ement conten ding wiih otherfactions for control o f Afghanistan's territory, rather than the regular armed force s of an existingstate. This would prov ide sufficient ground for B e President to exercise his conslilutional pow er

to suspend o ur G ene va I11 obliga tions tow ard Afghanistan.C. Suspension ~ ; ~ d e rnrernatiot~nl aw

Although the President m ay determine that Afghanistan w as a Sailed S tate as am at te r ofdomestic law, there rem ains the distinct question whether suspen sion would b e valid as a ma tter-Paula I. Dobransky, A/ghanisrm: Nor Alwoys a Borrl~ J~ld(O ct. 9,2001). avo ilnb k orht~:/lwu.w.usinib.sta~e.pov/~ic~V~V~cnor~O102908.htm (visited Jan. 13, 2002).59 7?1eEnd of the Taliban Reign of f'ror in A/ghonisran (Dee. 12,2001). nvailabk atIr~:!/w~\wv.osinf~.s~~t~.~o~-/tooic~V~VtcnoriO12 I 206.htm (visitcd Jan. 15,2002).m Rashid, supra, at 207." hilip IVcbstcr, Blair k nirrion 40 Kobul. Thc T i m * of London J a r 8, 2002. aw ilab le or 2002 WL 1719%."Wc do not think that the miM ary succcsscs o f t h e United States and he Nonh ern Alliance necessarily m o n t thatAfghanistan's starehood was rcsrorcd before the Bonn agreement, if only because the intcmational comm unity,including the United Sl av s, did no1 regard the No nh cm Alliancc as constituting thc govcrnmcnt ofAfghanistan.United Nations Security Council Resolution 13 78 ,g 1 (2001), ai*ailobleor h~://~r~\~w.v3k.cdu/lawwcb/a w l o n / s r ~ t I 1:unsccres lj78.hrrn (visitcd Nov. 19,2001). cx pr c~ scd snong support for the cffom o fth eAfghan pcoplc to establish a ne w and transilional adminisfration leading to thc form ation o f a government"(emphasis added); see also id. 1 3 (affm ning that the ~ d e darions should pla y a central role in supponing A fghanefforts to establish a "new and transitional sdministra~i& ead in^ to the formation of new govcmmcn~"). Thein implication of th is Resolution, which reflects tllc \*irws of thc United S ta ~ e s ,s that Afghanistan Jf k r the

no t h a w a government ar that time.


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of international We emphasize that the resolution of that questio'n, howevers has nobe~ r ing n domestic constitutional issues, or on the application of the WCA. Rather, theseissues are worth consideration as a means of justiffing the actions of the United States in thewoor]d of international politics. While a close question, we believe that the bet~er e!w is that, incerloin circumstances, comtries can suspend the Geneva Conventions cons&ienrly withinlemational law.

Jnternational law has long recognized that the material breach of a treaty can be groundsfor the pany injured by the breach to terminate or withdraw horn the treaty.u Under c&omaryinternational law, the general rule is that breach of a multilateral treaty by a State party justifiesthe suspension of that treaty with regard to that State. ' A material breach of a mulrilateral treatyby one of the parties entitles , . . a] party specially affected by the breach to .invoke it as aground for suspending [he operation of the treaty in whole or in part in the relalions betweenitself and the defaulting state.'" If Afghanistan co ~ ~ l de found in material breach for violating"a provision essential to the accomplishment of the object or pu ost of .the [GenevaConventions]," suspension of the Conventions would have been justified.2'

W e note, however, that these general mles authorizing suspension "do not apply toprovisions relating to the protection of the human person contained in treaties of a humanitariancharacter, in ~arlicularo provisions prohibiting any fornl of reprisals against persons prolectedby such treaties."*' Although the United States is not a party to the Vienna Convention, somelower courts have said that the Convention embodies the customary international law of treaties,and the State Deparrment has at various times taken the same The Geneva Conventionsmust be regarded as "treaties of a humanitarian character," many of ~vhose rovisions "relst[e) tothe protection o f the human person."89 Arguably, therefore, 3 decision by rhe United States tosuspend Geneva 111 with regard lo Afghanistan might put the United States in breach ofcustomary international Jaw." h cneral, of course, a decision by a Statc not to discharge its trcaty obligation s, cvcn \\hen cffec rive as a m an e lofdo mes tic law, do es not neccssarily rclicve i t of possible international liabiliy for non-performance. S c ge~wrallyPigeon River Irnprovement, Slide & Boom Co. Y. Charles JKCO.T,Ltd., 291 U.S. 138, 160(1934).See Leg al Consequences i r SIOILI o/fhe Conrinued Presence dSo ur h Afic a in Namibia (South WestA F c o )Nonvi~hsranding ec wriy Council Resolu~ion 76. 1971 I.CJ. 16.47,q 98 (Advisory Opinion June 2 1, 1971)(holding it ro be a "gencral principle o f law that a righf ~C tcnn inati on n account o f breach must be prcsurned tocxisr in respect o f all trcatics, cxccpt as regards provisions relating to thc protection o f the hum an per son c onta incdin treaties of a hum anitarian character.. . The silence of a treaty as 10 the caistencc o f such a right cannot beinterprctcd as implying the exclusion o f a right which has its source outside of the treaty, in gener al intc mation allawl.)").

" Vienna Convention o n Trcatiet, an. 60(2)(b).Jd, an . 6q.3)." d .n. 60(5). Thc Viema Convention scerns to prohibit or rcsmcr the suspension of humanitarian h ea tits i f chesole ground for su spcn sion is matcna l breach. Ir does not squ arely address the case in which suspen sion i s based,not onpanicular breaches by a party, but by the parry's dis ~p pc ar sn cc s a 51alc or on its incapacity to pe r f o m i tstreaty obligations.I1FvjitsuLd v. Fe de rol &press Corp.; 247 F.3d 4 23 ,43 3 (2d Cir.), e rr . den ied, 12 2 S. CI. 206 (2001); Moore.at 891-92 (quoting 1971 statement by Sccrctary o$State William P. Rogers and 1986 testimony by Deputy

V. Mochary). /Sir b n Sinclair, The Vienna Conrvn~ion n 11teLnw of Treories 191 (2d ed. 1984) (explaining inlent and sco perefercncc to "hum aniaria n" treaties). Jndccd, when the draficrs oi th c Vienna Conv ention ad de d para graph 5 to0, the Gc ncv a C onw nrio ns wcrc specifically rncntioncd 3s coming w irhin it. See Harris, supra, at 797.


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jn addition, the Geneva Conventions could fhemselves be read to preclude suspension.Common article l pledges the High Contracting Panies "to respect and to ensure resped for thepresent Convention in all ciramsmnces" (emphasis added). Some commentaton a uuq that thissl~ould e read to bar any State party from refusing to enforce their prqvi$ons, nomatter the conduct of its adversanes. In other words, the duty of performance is &&te anddoes not depend upon reciprocal performance by other Sfateparties.90 Under this approach, theterms of the Genev

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