Donald J. Trump strikes a deal with the Taliban, that USA will withdraw its forces from Afghanistan soil. On 14 April, Joe Biden who inherited the deal from Trump, announced from the White House, Washington DC, “It’s time to end America’s longest war.” As the USA troops, prepare to exist, the Taliban planned to establish the ‘Islamic Emirate of Afghanistan’. On August 15, when India celebrated Independence, the Taliban claimed full control of Afghanistan; they captured Kabul, the capital. Videos emerged of Taliban damaging portraits of former president Ashraf Ghani and other Government Officials in the Parliament.
Taliban promised they came with a moderate mindset, they will respect women and minorities, and give them rights and opportunities. A huge question arises, in the minds of many- Can they, who are responsible for triggering “War Crimes” against innocent Afghan civilians, be trusted?
What are War Crimes?
Forced to live in fear, put on a veil of silence, a knock on the door scares, untimely blasts and series of gunshots can rack havoc, they live in inhumane conditions, not in the world we live in.
War Crimes are one of the most heinous crimes against humanity; they endanger peace, prosperity and violate laws of war. International Law sees them as the gravest crime that endangers humanity. Article 147, Geneva Convention, 1949, defines War Crimes as willfully subjugating people to inhumane treatment, torturing, killing… willfully inflicting serious injuries to body or health… unlawful confinement and deportation… taking hostages and misappropriation and destruction of property, not a military necessity and carried out unlawfully and brutally.
The International Criminal Court (ICC) and the Yugoslavia Tribunal exercise jurisdiction to try War Crimes. The International bodies while trying War Crimes take into consideration three pillars of humanitarian law- proportionality, distinction, and precaution. The principle of proportionality prohibits the military to cause loss of human life, inflicting injuries and damage to civilians for military advances. Distinction requires, to differentiate between civilians and military combatants and not cause hurt to the former. Further, precaution requires to avoid or minimize harm to the civilian population.
Is Geneva Convention applicable to Wars within the State?
Article 3 of the Geneva Convention, 1949, deals with armed conflicts occurring between two contracting parties within the State and rebel forces or within two armed forces. Thus, the Article has a wide scope and is applicable to armed conflicts which are not of an international character. There is the possibility that the State would not recognize civil conflicts and rebellion as armed conflicts due to various political reasons. This would hamper the International Committee of Red Cross to extend relief measures to the affected as State would argue it is a matter of mere internal disturbance. The Article is not applicable to civil commotions and low-intensity armed rebellion. Further, it does not deny the State’s right to take action against armed rebellion by cutting the supply of essentials or being hanged for treason.
In Afghanistan, ICRC could have intervened when the cities of Afghanistan were falling to the Talibs, and the former Vice President had called for international help as the Taliban were violating the humanitarian rights of many. The Taliban follow hardcore ideology which is in contrast to Islamic Law of War which adheres to the principles of International Humanitarian Law (IHL).
Origins of Islam Law
Islam is the second most practiced religion in the World. The religion emerged in 610 AD in Mecca. It is natural that when a new religion emerges the people fear instability in religious, political, economic, and social systems. Hence, the followers of Islam had to face hostilities. There were clashes, battles, violent encounters between Muslims and their enemies when they fled to Medina and Saudi Arabia. In an attempt to understand Islamic War Law, scholars read the history related to the period of clashes in the Quran, hadith literature, and various other literature like tafsir. The jurists constituted material from all the literature available, and developed Islamic Law of War, under Islamic Law, under the headings as al-jihad, al-maghazi, al-siyar. Contemporary Muslim scholars supplement the Islamic Law of War with ethics of War and IHL.
Similarities between Article 3 and Islamic Law of War
The classical Muslim jurists were of the opinion that principles of IHL are very well incorporated in Islamic War Law. The Islamic Law strongly professes to humanize armed conflicts, protecting the innocent, forgiving an enemy who has surrendered, and protecting women and children.
Protection of Civilians and Non-Combatants
Both Article 3 and Islamic War Law, lay down that the civilians and Non-Combatants should not be harmed. Islamic Law provides special immunity to women, children, the elderly, the clergy, and the slaves. The immunity is not different from the IHL, but some people have diverted from the actual interpretation.
Prohibition against Indiscriminate Weapons
Muslim scholars have strongly condemned the use of weapons that could, by their virtue, cause death or injury to the innocents. This clearly shows how the law has tried to balance the principles of humanity with military necessity. But there is a debate between three ideologies, one which completely disregards this method, the other dislikes, and the third professes for it. There emerges conflict in Islamic Law.
Prohibition against Indiscriminate Attacks
Under indiscriminate attacks, Muslim jurists discussed the righteousness of the attack at night and used humans as shields which could be catastrophic for the protected. Some prohibited, others disliked and some permitted due to absolute military necessity. There was consensus among all that person and object should not be harmed. Article 3 also calls for the protection of a person in violence.
Protection of Property
Islamic Law on War, considers that all the property belongs to Almighty and it should be protected. The fighters are allowed to consume essential supplies of the enemy only to fulfill their basic needs for survival such as food. If the property is targeted, the only aim is to make them surrender and try to avert every possible damage to the property.
In Afghanistan, when the Taliban cut essential supplies to Panshir, they violated IHL and also Islamic Law. They cut down essential supplies like food and water.
Treatment to Prisoners of War
The Muslim jurists are divided among three ideologies regarding the treatment of POWs. Some are completely liberal and believe they should be returned in exchange for Muslim soldiers. The second group is further divided in opinions, first, they should be tried and decisions made accordingly, whether to execute or enslave them. The second opinion is that they should be free and forced to live in the Muslim State. They should be treated with kindness; food, water, and protection from hot and cold weather should be provided; and they should not be subjugated to cruel treatment. Mutilation is strictly prohibited in Islamic Law. Article 3 of the Geneva Convention has also strictly laid down that a fighter who has surrendered should be treated humanely and mutilation is strictly prohibited.
Safe Conduct and Quarter
In Islamic Law, it is the duty of a Muslim State to protect the safety of non-Muslims who have visited their State or are envoys of some other non- Muslim State. On the battlefield, if the enemy has called for ‘Aman’ the enemy should not be attacked and protected.
It is evident that Muslim scholars have always professed to fight a war within the lines of International Humanitarian Law under Article 3 of the Geneva Convention. But still, there is a state of confusion about the Islamic Law of War as Islamic War regulations contradict each other. The literature available on Islamic War regulations dates back to the seventh century. The rules on the same were never codified; in the twentieth century, only family law was codified. Many Muslim countries have signed Geneva Convention as they preferred principles of IHL in contrast to war tactics evolved over time by the conservative terrorists in a different political context. The supporters believe that rules adopted by these bodies are in the true spirit of Islamic ideologies.
How do the Muslim Outfits function today?
The Muslim militant outfits that are functioning today have adopted a more conservative approach towards warfare probably due to confusion among the community, the principles laid down by the Muslim scholars, and clashes between present and past ideologies. These outfits do not believe that war should be fought according to IHL, they have different ideologies-
For them being hostile is not a problem as Islamic scriptures say that more hostilities by them, Almighty will reward them and no hostilities will bring bigger punishment in next World.
Different interpretations have been given to texts and contexts, related to the Islamic Law of War.
Muslim scholars have tried to strike a balance between war and humanity. But winning a war is a necessity.
Some Muslims refer to these ideologies; this would not put an end to war. Also, they will use this content to justify the killing of innocents.
Taliban – Ghosts of Afghanistan
For several decades Taliban have been responsible for several War Crimes against Afghan civilians. Taliban said they have come with a moderate mindset but the unfolding events say otherwise-
Women Rights Violated
The Taliban Government does not have women representation. Instead, important positions have been given to the terrorist on the most-wanted lists. When women took on the streets to protest against the new, oppressive, barbarian kind of regime, the fighters physically assaulted women to deter them away. They asked for girls above fifteen and widows below forty years of age to be gifted to their fighters as brides. This barbaric move where women don’t have the right to choose their partners will push them into shackles of sexual slavery. Women need a male member to accompany them when they leave the house; this clearly imposes restrictions on their movement.
Hazars are minorities of Afghanistan. The Taliban doesn’t accept them as their people and often discriminate against them. Nine Hazara men have been tortured and murdered by the militants, which clearly indicates their intolerance towards them. This violates Geneva Convention. If the International Authorities do not intervene, then possibly the world could witness another genocide.
Execution of Soldiers or Afghans who are under suspicion to help the USA
While in the media Taliban says that they hold no grudges against the people who helped the USA, the reality is brutal. They execute people who helped the USA, and this blunt reality is surfacing at a steady pace. It is impossible for them to work under humanitarian law. They are slaves of orthodox mentality.
Using Panjshir Men to clear Landmines
Former Vice-President had alleged that after taking over Panshir, the Talibs are using men of Panshir for mine-clearing purposes. They not only violate humanitarian law but also Islamic Law of War which disallows using innocents for military gains.
Execution in Inhumane Manner
The guilty need to be punished, but the punishment is given seeing various aspects like nature of the offense, intensity, magnitude, etc. But unfortunately, such codified statutes don’t exist for Talibs. They executed two suspects of kidnapping and hung their corpses publicly. Such executions would have a negative impact on the mindset of people.
Afghanistan, within a span of three years, has been hit by two major droughts. There is little food available and that too at very high prices. People have started adopting minimal survival approaches such as skipping meals, eating little, or giving food to children. According to the United Nations, 72% of the Afghan population is impoverished and soon 97% of Afghans will share the same pedestal. The cash has been exhausted from the economy; long queues are there in front of the bank to withdraw cash. Afghanistan depends heavily on foreign aid but after the takeover of the Taliban, the funds have stopped. The resumption of foreign aid depends heavily upon the recognition of the Taliban as the legitimate Government of Afghanistan.
Taliban needs international recognition and it is not possible until they mend their ways and uphold a more moderate and humanitarian approach. The future of 39 million Afghan nationals depends on international recognition. But the approach adopted by the Taliban takes them far away from recognition. Recently, ICC has ordered that it will open an investigation against the Taliban as to whether there is any violation of human rights. It is important for International Authorities, like the UN to intervene to avert possible refugees crises, poverty, and impoverishment. If the right actions are not taken at the right time, Afghanistan can possibly slip into medieval times.
Editor’s Note This article explains the concept of war crimes in light of International Humanitarian Law and Islamic Law with special reference to the Afghanistan conundrum. The author has focused on the Geneva Convention and its principles related to war crimes, as well as the Islamic Law on Wars. The author has further compared both the laws and highlighted the similarities between them. The author has also shown how the Taliban has been responsible for various war crimes in Afghanistan. Lastly, the author has concluded by saying that the Taliban needs to mend their ways and uphold a more moderate and humanitarian approach if they want international recognition.