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Published online by Cambridge University Press: 23 November 2021
Despite the existence of a definition of civilian status in international humanitarian law (IHL), differences in the application of this definition – both in theory and in practice – continue to be observed. One of the contexts where these differences remain palpable (and do so for various fighting parties) is Afghanistan, a country where civilian harm has remained high for several years. This article explores the legal concepts of civilian and civilian population, including how they have been formed and interpreted and, ultimately, what protection they afford to persons who belong in these categories. The second part of the article brings these questions into the Afghan context, one that is complex and where cultural and religious implications should not be overlooked. Public statements, reports and codes of fighting parties in the country which touch upon civilian status are presented, followed by the civilian experience in Afghanistan, particularly focusing on the reported harm. Ultimately, it is proposed that despite the factual and contextual confusion, the existing legal rules and interpretations, when applied in good faith, suffice to ensure both that those who are civilians under IHL are protected and that the threats which some civilians’ behaviour might pose can be effectively addressed without a status change.
This article was written in a personal capacity and does not necessarily reflect the views of the International Committee of the Red Cross (ICRC). The exception is where public ICRC positions are referred to. Whenever reports, opinion pieces or articles are reproduced in this article, this does not imply endorsement of their content. Thanks are extended to Ezat Gul, Francis Conway and Mario Zuazua for their help in the drafting process, as well as Abby Zeith and Thomas de Saint Maurice for their invaluable comments.
1 The same issue has been raised by the United Nations Assistance Mission in Afghanistan (UNAMA) in its 2020 Annual Report, but also in annual and thematic reports from previous years. See UNAMA, Afghanistan: Protection of Civilians in Armed Conflict: Annual Report 2020, February 2021, p. 124, available at: https://unama.unmissions.org/sites/default/files/afghanistan_protection_of_civilians_report_2020_revs3.pdf (all internet references were accessed in November 2021).
2 This article will examine the notion of civilian within the framework of the armed conflict(s) that have existed in Afghanistan, and with the assumption that IHL is applicable, in particular with regard to, as parties to armed conflict, the Afghan government, the NATO forces (which include the United States) and the Islamic Emirate of Afghanistan (IEA), which is often referred to as the Taliban. For the entirety of this article, the acronym IEA will be used, unless the term “Taliban” is quoted directly from another source.
3 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 50; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 5, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
4 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgment (Trial Chamber), 5 December 2003, para. 47.
5 Pejic, Jelena, “The Protective Scope of Common Article 3: More than Meets the Eye”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 189–190CrossRefGoogle Scholar.
6 These “unconventional” terms conveniently fill a linguistic gap and will be used throughout this article. The author thanks Rebecca Sutton for their use in academic scholarship. See Sutton, Rebecca, The Humanitarian Civilian: How the Idea of Distinction Circulates Within and Beyond International Humanitarian Law, Oxford University Press, Oxford, 2021CrossRefGoogle Scholar.
7 AP I, Art. 43(1); ICRC Customary Law Study, above note 3, Rule 4.
8 Dinstein, Yoram, “Fighters, Civilians and LONIAC”, in Dinstein, Y. (ed.), Non-International Armed Conflicts in International Law, 2nd ed., Cambridge University Press, Cambridge, 2021, p. 79CrossRefGoogle Scholar.
9 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 13.
10 Bissonnette, Camille Marquis, “The Definition of Civilians in Non-International Armed Conflicts”, Journal of International Humanitarian Legal Studies, Vol. 7, No. 1, 2016, p. 131CrossRefGoogle Scholar.
11 ICRC Customary Law Study, above note 3, Rule 5.
12 AP I, Art. 50(1); ICRC Customary Law Study, above note 3, Rule 6.
13 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on the APs), para. 1920.
14 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, October 2015, p. 25, available at: www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts.
15 AP I, Art. 79; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 4(A)(4); ICRC Customary Law Study, above note 3, Rules 4 and 24.
16 The same position was upheld in the famous (and in equal part criticized) Targeted Killings case in Israel, which stated: “A civilian who … commits acts of combat does not lose his status as a civilian.” Supreme Court of Israel, Public Committee against Torture in Israel v. Government of Israel (Targeted Killings), Case No. HCJ 769/02, 13 December 2006, para. 31.
17 ICTY, Galić, above note 4, para. 143.
18 The Trial Chamber held, when considering the chapeau requirement of a civilian population, that the definition of a civilian is expansive and includes individuals who at one time performed acts of resistance, as well as persons hors de combat when the crime was perpetrated.
19 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgment (Appeals Chamber), 30 November 2006, para. 144.
20 ICTY, Prosecutor v. Tihomir Blaskić, Case No. IT-95-14-A, Judgment (Appeals Chamber), 29 July 2004, para. 113.
21 ICRC Commentary on the APs, above note 13, para. 1922; ICTY, Blaskić, above note 20, para. 115: “[I]n order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined.”
22 ICTY, Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT-95-14/2-A, Judgment (Appeals Chamber), 17 December 2004, para. 50.
23 ICRC Commentary on the APs, above note 13, para. 615. The word “innocent” was not defined when it was used, and indeed, all civilians are protected against attack. This will be discussed in more detail later in the article.
24 AP I, Art. 58; ICRC Customary Law Study, above note 3, Rule 22.
25 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009 (Interpretive Guidance), pp. 27–29.
26 See Schmitt, Michael N., “The Interpretative Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis”, Harvard Law School National Security Journal, Vol. 1, No. 1, 2010Google Scholar.
27 Interpretive Guidance, above note 25, p. 16.
28 Marco Sassòli, Antoine Bouvier and Anne Quintin (eds), How Does Law Protect in War?, 3rd ed., ICRC, Geneva, 2011, Chap. 5.1.
29 The Interpretive Guidance states: “The present text interprets the notion of direct participation in hostilities for the purposes of the conduct of hostilities only. Thus, apart from providing guidance on when and for how long a person is considered to have lost protection from direct attack, it does not address the consequences of direct participation in hostilities once he or she finds himself or herself in the adversary's hands. Other rules of international humanitarian law then govern, foremost among them being the already mentioned principle of humane treatment.” Interpretive Guidance, above note 25, p.7.
30 The Commentary on AP I uses the term “armed combat”: see ICRC Commentary on the APs, above note 13, para. 1942.
31 Interpretive Guidance, above note 25, p. 46.
32 Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, p. 359.
33 Supreme Court of Israel, Targeted Killings, above note 16, para. 39.
34 Dapo Akande, “Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities”, EJIL: Talk!, 4 August 2009, available at: www.ejiltalk.org/clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/.
35 Interpretive Guidance, above note 25, p. 54, fn. 53.
36 Ibid., p. 71.
37 Ibid., p. 72.
38 When a treaty is open to two interpretations, one of which enables the treaty to have appropriate effects and the other does not, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted. See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 12 August 1949 (ICRC Commentary on GC I), paras 28–32, quoting International Law Commission, Yearbook of the International Law Commission, Vol. 2, 1966, p. 219, para. 6.
39 ICRC Commentary on GC I, above note 38, para. 29.
40 Good faith is defined as that which “requires the parties to a treaty, contract, or any other kind of international transaction to deal honestly and fairly with each other. Each party shall act reasonably, taking into account the just expectations of the other party/parties, truthfully disclosing all relevant motives and purposes. Each party shall finally refrain from taking unfair advantage due to a literal interpretation, if the mere focus on the wording would fall short of respecting the objects, purposes, and spirit of the agreement”. Kotzur, Markus, “Good Faith (Bona Fide)”, Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, January 2009Google Scholar.
41 Michael W. Meier, “The Updated CGIII Commentary: A Flawed Methodology?”, Articles of War, 3 February 2021, available at: https://lieber.westpoint.edu/updated-gciii-commentary-flawed-methodology/.
42 Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, The Hague, 18 October 1907, Preamble.
43 Longobardo, Marco, “The Relevance of the Concept of Due Diligence for International Humanitarian Law”, Wisconsin International Law Journal, Vol. 37, No. 1, 2019Google Scholar.
44 M. W. Meier, above note 41.
45 ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020, para. 32.
46 US Supreme Court, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., 548 U.S. 557 (2006), No. 05.184, 29 June 2006.
47 Van Alstine, Michael P., “The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection”, Georgetown Law Journal, Vol. 93, No. 6, 2005Google Scholar.
48 Especially outside strictly legal discussions and amongst field and operational practitioners.
49 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, para. 591.
50 Craig Jones, “In Good Faith: Legal Advice during Aerial Targeting in Urban Areas”, Humanitarian Law and Policy Blog, 4 May 2021, available at: https://blogs.icrc.org/law-and-policy/2021/05/04/in-good-faith/.
51 ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Work of the Conference, Geneva, August 1971, pp. 73–77.
52 ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. 3, Geneva, January 1971, p. 39.
53 ICRC, above note 51, p. 28.
54 ICRC Customary Law Study, above note 3, Rule 5.
55 Lassa Oppenheim, International Law, Vol. 2: Disputes, War and Neutrality, ed. Hersch Lauterpacht, 7th ed., Longmans, London, 1952, para. 57.
56 ICRC Commentary on the APs, above note 13, para.1909.
57 ICTY, Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Judgment (Trial Chamber), 17 January 2005, para. 544. See also ICTY, Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment (Trial Chamber), 31 January 2005, para. 282.
58 Goodman, Ryan, “The Detention of Civilians in Armed Conflict”, American Journal of International Law, Vol. 103, No. 1, 2009, p. 53CrossRefGoogle Scholar.
59 Rebecca Sutton, “The Humanitarian Civilian: A Book Launch with Dr. Rebecca Sutton”, Oxford Institute for Ethics, Law and Armed Conflict, Edinburgh Centre for International and Global Law, and Political Settlements Research Programme, virtual event, 5 May 2021.
60 ICRC Commentary on the APs, above note 13, para. 1944. See also Antonio Cassese, “Merits of the Israeli Judgment on Targeted Killing”, Journal of International Criminal Justice, Vol. 5, No. 2, 2007, p. 343.
61 Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, Leiden and Boston, MA, 1982, p. 303.
62 Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia, Doc. OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26 February 1999, Chap. 4, para. 56.
63 M. Bothe, K. J. Partsch and W. A. Solf, above note 61, p. 303.
64 Interpretive Guidance, above note 25, at p.33.
65 Paraphrased from Shakespeare's Romeo and Juliet, in Blakemore Evans et al. (eds), The Riverside Shakespeare, Vol. 2, Houghton Mifflin, Boston, MA, 1974.
66 API, Art. 48.
67 Escorihuela, Alejandro Lorite, “Humanitarian Law and Human Rights Law: The Politics of Distinction”, Michigan State Journal of International Law, Vol. 19, No. 2, 2013, p. 319Google Scholar.
68 ICRC, “Glossary: Use of Force”, How Does Law Protect in War?, available at: https://casebook.icrc.org/glossary/use-force.
69 Military objectives are those objects “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. See AP I, Art.52(2– (3); ICRC Commentary on the APs, above note 13, paras 2022–2023.
70 In many cases, this holds true even when the civilian harm is lawful, e.g. when it is proportional to the expected military advantage.
71 AP I, Art. 85; ICRC Customary Law Study, above note 3, Rule 158.
72 DoD, Annual Report on Civilian Casualties in Connection with United States Military Operations in 2020, 2 June 2021, available at: https://tinyurl.com/xerptz5n. It is worth noting that the use of the term “engaging in hostilities” risks excluding a wider category of persons than those identified in the ICRC's Interpretive Guidance.
73 Center for Civilians in Conflict (CIVIC), Unacknowledged Harm: Hurdles to Receiving Victims’ Assistance in Afghanistan, December 2020, pp. 9–10.
74 Lauri, Antonio De and Suhrke, Astri, “Armed Governance: The Case of the CIA-Supported Afghan Militias”, Small Wars & Insurgencies, Vol. 32, No. 3, 2021, p. 499CrossRefGoogle Scholar.
75 CIVIC, above note 73, p. 17.
76 Ibid., p. 21.
77 This section will examine the notion of civilian as enshrined in IHL, as opposed to violence against the life of civilians under law enforcement operations and international human rights law. Targeted killings are also considered within the IHL framework, albeit noting that those targeted are, at times, geographically far removed from hostilities, and/or not necessarily directly participating in hostilities at the time they are targeted.
78 C. Marquis Bissonnette, above note 10, p. 131.
79 Maley, William, “Afghanistan: An Historical and Geographical Appraisal”, International Review of the Red Cross, Vol. 92, No. 880, 2010CrossRefGoogle Scholar.
80 The Interpretive Guidance states: “In practice, civilian participation in hostilities occurs in various forms and degrees of intensity and in a wide variety of geographical, cultural, political, and military contexts. Therefore, in determining whether a particular conduct amounts to direct participation in hostilities, due consideration must be given to the circumstances prevailing at the relevant time and place.” Interpretive Guidance, above note 25, pp. 41–42.
81 Guest makes an interesting remark regarding the adaptation of pre-Islamic fighting patterns to the new, divine rules which “went into uncomfortable nitty-gritty detail”. He describes the initial implementing process as “embracing the broad concept but cherry-picking the details”. See Guest, Ken, “Dynamic Interplay between Religion and Armed Conflict in Afghanistan”, International Review of the Red Cross, Vol. 92, No. 880, 2010, pp. 887–888CrossRefGoogle Scholar.
82 Al-Dawoody, Ahmed, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles”, International Review of the Red Cross, Vol. 99, No. 906, 2017, p. 1002CrossRefGoogle Scholar.
83 Ibid., p. 1002.
84 K. Guest, above note 81, p. 896.
85 Ahmed, Akbar, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society, Routledge, London, 2013, p. 92Google Scholar.
86 An extensive analysis may be found in Lutz Rzehak, “Doing Pashto: Pashtunwali as the Ideal of Honourable Behaviour and Tribal Life among the Pashtuns”, Afghan Analysts Network, 21 March 2011, available at: www.afghanistan-analysts.org/wp-content/uploads/downloads/2012/10/20110321LR-Pashtunwali-FINAL.pdf.
87 Guest explains that the social concept of honour (nang) is shared by non-Pashtuns, as is melmastya (hospitality). See K. Guest, above note 81, p. 886.
88 Qiyamuddin Khadim, Pashhtunwali, Kabul, 1331/1952, p. 29.
89 K. Guest, above note 81, p. 880.
90 L. Rzehak, above note 86, p. 14.
91 Similar examples of how interpersonal rivalries factor in target selection are presented in Bette Dam, “How Flawed Information Created a ‘Taliban’ Threat”, The Australian, 29 January 2021, available at: https://tinyurl.com/wvj5yjkw.
92 CIVIC, Afghan Airstrikes: Good Practices and Challenges to Protect Civilians, August 2020, p. 16, available at: https://civiliansinconflict.org/wp-content/uploads/2020/08/PB-on-Airstrike-Final.pdf.
93 A good analysis of the humanitarian, political, societal and economic dimensions that make the protracted conflict in Afghanistan intractable and precarious for civilian populations is presented in Emmanuel Tronc and Anaïde Nahikian, Fragile Future: The Human Cost of Conflict in Afghanistan, Humanitarian Action at the Frontlines: Field Analysis Series, Harvard Humanitarian Initiative, 1 December 2018.
94 K. Guest, above note 81, p. 881.
95 W. Maley, above note 79, p. 875.
96 ICRC, “Glossary: Asymmetric Warfare”, How Does Law Protect in War?, available at: https://casebook.icrc.org/glossary/asymmetric-warfare. See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, September 2003, Section IV.
97 Geiss, Robin and Siegrist, Michael, “Has the Armed Conflict in Afghanistan Affected the Rules on the Conduct of Hostilities?”, International Review of the Red Cross, Vol. 93, No. 881, 2011, p. 12CrossRefGoogle Scholar.
98 Silvestri, Alessandro, “The ‘Revolving Door’ of Direct Participation in Hostilities: A Way Forward?”, Journal of International Humanitarian Legal Studies, Vol. 11, No. 2, 2020, pp. 415–416CrossRefGoogle Scholar.
99 Further, Section 81 of the Layeha provides that fighters should keep their “hair style, clothing, shoes and other things just like the local people [because] this will allow the mujahideen to protect the local people and will enable them to move freely in any direction”.
100 This refers to actors who have been publicly known to participate, in some form or another, in fighting in Afghanistan.
101 For instance, the IEA condemned a bombardment in Helmand in June 2021, stating: “The base, located on the side of the road, was visited by motorists, passengers and other locals on the Herat-Kandahar highway, who were bombed by the enemy.” Statement by the Spokesman of the Islamic Emirate of Afghanistan, Zabihullah Mujahid, 4 June 2021, available at: https://twitter.com/Zabehulah_M33/status/1400837761070866437. The US 2020 Report to Congress on Afghanistan states: “The [Resolute Support] Tactical Guidance emphasizes that civilian casualties are the single greatest threat to the [Resolute Support] mission.” DoD, Enhancing Security and Stability in Afghanistan: Report to Congress, June 2020, available at: https://media.defense.gov/2020/Jul/01/2002348001/-1/-1/1/ENHANCING_SECURITY_AND_STABILITY_IN_AFGHANISTAN.PDF.
102 Inspector-General of the Australian Defence Force, Report of Inquiry under Division 4A of Part 4 of the Inspector-General of the Australian Defence Force Regulation 2016 into Questions of Unlawful Conduct Concerning the Special Operations Task Group in Afghanistan, Public Release Version, November 2020, (Brereton Report), available at: https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf.
103 Ibid., p. 290.
104 Ibid., p. 290, paras 16–17. The acronym LOAC stands for law of armed conflict and is interchangeable with IHL for the purposes of this article.
105 Ibid., p. 292, para. 27.
106 On the various editions of the Layeha, see Munir, Muhammad, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law”, International Review of the Red Cross, Vol. 93, No. 881, 2011, p. 82, fn. 1CrossRefGoogle Scholar. Regarding the Layeha's applicability, the 2017 Guidance to the Mujahideen explains that “[a]ll of the necessary orders which the mujahideen require have been published by the Islamic Emirate in the general Layeha.” Mujiahideeno ta da Emir-ul-Momineen Larshawoney (The Emir-ul-Momineen's Guidance to the Mujahideen), p. 7, Pashto original available at: https://web.archive.org/web/20200202172848/http://www.mujali.net/?p=878.
107 Layeha, Art. 57(3). “Common people” is one of the ways in which civilians are referred to. Other terms include: Art. 2: aam kas (common person); Art. 48: wolosi khalk (normal people), aam wagrey (normal citizens), walis (the populous); Art. 65: aam khalk (common people), mulki khalq (people); Arts 72, 73: khalk (of the people); Art. 81: mahali khalk (the local people).
108 Layeha, Arts 23–25.
109 IEA, “Updated Information regarding the Martyrdom Attack in Kabul”, 8 May 2019, available at: https://web.archive.org/web/20190511195113/http://shahamat1.net/?p=157721.
110 L. Rzehak, above note 86, p. 11.
111 DoD, Law of War Manual, Office of General Counsel, June 2015 (updated December 2016), p. 98, para. 4.1.1.1, p.98. available at: https://tinyurl.com/38mwxkux.
112 The ICRC believes that loss of entitlement to combatant privilege or prisoner-of-war status does not necessarily lead to loss of membership in the armed forces: see Interpretive Guidance, above note 25, p.22.
113 DoD, above note 111, p. 101, para. 4.2.3.3.
114 Ibid., p. 155, para. 4.18.1.
115 IEA, “Weekly Commentary: It Is Not the Policy of the IEA to Strike Civilian Targets”, 20 May 2019, available at: https://web.archive.org/web/20190528143144/http://shahamat1.net/?p=158956.
116 IEA, “Remarks by Spokesman of Islamic Emirate concerning Civilian Casualty Report by UNAMA”, 6 February 2017, available at: https://activist1.blog/2017/02/08/remarks-by-spokesman-of-islamic-emirate-concerning-civilian-casualty-report-by-unama/.
117 “Raid on Seminary and Airstrike on Clinic”, Voice of Jihad, 16 March 2021, available at: https://piazzadcara.wordpress.com/2021/03/20/afghanistan-war-crime-updates-enemy-bombs-health-center-in-faryab/.
118 “Dead Consciences and Arghandab Tragedy”, Voice of Jihad, 14 December 2020, available at: https://piazzadcara.wordpress.com/2020/12/17/afghanistan-hypocritical-silence-in-the-face-of-brutality/.
119 IEA, “Remarks by the Spokesman of Islamic Emirate regarding Targeted Killings of Scholars, Journalists and Political Figures”, 7 January 2021, available at: https://twitter.com/Zabehulah_M33/status/1347023574423515137/photo/1.
120 UNAMA, above note 1.
121 CIVIC, above note 92, p. 13
122 Note that “hostile intent” is not a term found in IHL. For more on this topic, see Erica Gaston, When Looks Could Kill: Emerging State Practice on Self-Defense and Hostile Intent, Global Public Policy Institute, June 2017.
123 USFOR-A, “Response to United Nations Mission in Afghanistan's (UNAMA) Objections to U.S. Strikes on Taliban Methamphetamine Laboratories”, prepared by the Office of the Staff Judge Advocate, 15 July 2019 (on file with UNAMA).
124 Email communications between UNAMA and a USFOR-A Legal Adviser on 5 August 2019 (on file with UNAMA).
125 UNAMA, Afghanistan: Protection of Civilians Special Report: Airstrikes on Alleged Drug-Processing Facilities, October 2019, p. 15, available at: www.ohchr.org/Documents/Countries/AF/SpecialReportUSforAirstrikesBakwa.pdf.
126 The New York Times publishes a monthly “Afghan War Casualty Report”, available at: www.nytimes.com/spotlight/afghan-war-casualty-reports.
127 For example, UNAMA explains that “[i]nternational humanitarian law defines ‘civilians’ as those persons who are not members of military or paramilitary forces or fighters of organized armed groups of a party to a conflict. Civilians may lose protection against attacks for such time as they take direct part in hostilities.” UNAMA, “Frequently Asked Questions”, available at: https://unama.unmissions.org/poc.
128 However, UNAMA states that it does not document casualties where the civilian was directly participating in hostilities at the time of death or injury.
129 UNAMA, “Need for Violence to End in Order to Stop Thousands of Afghan Civilians Being Killed and Injured in 2021 – UN Report”, 14 April 2021, available at: https://unama.unmissions.org/need-violence-end-order-stop-thousands-afghan-civilians-being-killed-and-injured-2021-un-report.
130 Afghan Journalists Safety Committee, Annual Report 2020, Kabul, 2021, available at: https://ajsc.af/211/ajsc-2020-annual-report; UNAMA, “Joint Statement of Support for Afghan Journalists and Media”, 3 May 2021, available at: https://unama.unmissions.org/joint-statement-support-afghan-journalists-and-media.
131 UNAMA, Afghanistan: Protection of Civilians in Armed Conflict: Annual Report 2019, February 2020, p. 27, available at: https://unama.unmissions.org/sites/default/files/afghanistan_protection_of_civilians_annual_report_2019_-_22_february.pdf.
132 UNAMA, “Afghanistan: Protection of Civilians in Armed Conflict, First Quarter Update: 1 January to 31 March 2021”, April 2021, p. 3, available at: https://unama.unmissions.org/sites/default/files/unama_protection_of_civilians_in_armed_conflict_1st_quarter_2021_2_0.pdf.
133 UNAMA, “Security Council Press Statement on Targeted Attacks against Civilians in Afghanistan”, 12 March 2021, available at: https://unama.unmissions.org/security-council-press-statement-targeted-attacks-against-civilians-afghanistan.
134 UNAMA, above note 127.
135 MSF, “‘They Came to Kill the Mothers’ in Kabul Maternity Hospital Attack”, 14 May 2020, available at: www.msf.org/they-came-kill-mothers-kabul-maternity-hospital-attack.
136 “MSF Afghan Maternity Ward to Close after Deadly Gun Attack”, BBC News, 16 June 2020, available at: www.bbc.com/news/world-asia-53059022.
137 “Blast Kills Dozens Near School in Afghan Capital Kabul”, Al Jazeera, 8 May 2021 (updated 11 May 2021), available at: www.aljazeera.com/news/2021/5/8/blasts-kill-dozens-near-school-in-afghan-capital-kabul.
138 “Bombing Outside Afghan School Kills at Least 90, with Girls as Targets”, New York Times, 8 May 2021 (updated 16 May 2021), available at: www.nytimes.com/2021/05/08/world/asia/bombing-school-afghanistan.html.
139 A. De Lauri and A. Shurke, above note 74, p. 503.
140 See, for example, the New York Times “Afghan War Casualty Reports”, above note 126.
141 Founded on religion, culture or otherwise.
142 Contemporary just war theory is divided into two broad camps: revisionists and traditionalists. Traditionalists seek to provide moral foundations for something close to current international law, and in particular the laws of armed conflict. Revisionists argue that international law is at best a pragmatic fiction – it lacks deeper moral foundations. Philosopher Seth Lazar believes that “killing civilians typically involves an especially objectionable mode of harmful agency – their suffering is used as a means to compel their compatriots and leaders to end their war. Combatants, by contrast, are typically killed in order to avert the threat that they themselves pose.” Lazar, Seth, “Just War Theory: Revisionists Versus Traditionalists”, Annual Review of Political Science, Vol. 20, 2017, p. 51CrossRefGoogle Scholar.
143 Notably the NATO Resolute Support mission, the Afghan Independent Human Rights Commission and UNAMA.
144 Sahr Muhammedally and Marc Garlasco, “Reduction of Civilian Harm in Afghanistan: A Way Forward”, Just Security, 25 February 2020, available at: www.justsecurity.org/68810/reduction-of-civilian-harm-in-afghanistan-a-way-forward/.
145 ICRC, above note 14, p. 13.
146 Interpretive Guidance, above note 25, p. 52.
147 ICRC Commentary on the APs, above note 13, para. 1936.
148 The principle of military necessity permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by IHL. The notion of military necessity has been understood to require that the measure be taken primarily for some specific military purpose, that it is materially relevant for the attainment of the military purpose, that it is the least injurious of those that were reasonably available, and that the injury that it would cause is proportionate to the gain it would achieve. Finally, the military purpose for which the measure is taken, as well as the measure itself, need to be in conformity with IHL. See Hayashi, Nobuo, “Requirements of Military Necessity in International Humanitarian Law and International Criminal Law”, Boston University International Law Journal, Vol. 28, No. 1, 2010, pp. 62–93, 120–121Google Scholar.
149 Camins, Emily E., “The Past as Prologue: The Development of the ‘Direct Participation’ Exception to Civilian Immunity”, International Review of the Red Cross, Vol. 90, No. 872, 2008, p. 868CrossRefGoogle Scholar.
150 The argument has already been made that there is an obligation in IHL to use the least harmful means in conducting hostilities, and in particular in targeting persons, when possible and when such means will achieve the same military advantage. See Goodman, Ryan, “The Power to Kill or Capture Enemy Combatants”, European Journal of International Law, Vol. 24, No. 3, 2013Google Scholar, quoted in Quintin, Anne, The Nature of International Humanitarian Law: A Permissive or Restrictive Regime?, Edward Elgar, Cheltenham, 2020, p. 263CrossRefGoogle Scholar.
151 Bissonnette carried out an analysis on armed groups’ perception of the concept of civilians in NIAC. She found four different approaches: the specific-act approach, the membership approach, the functional non-privileged combatancy approach, and the direct participation in hostilities approach with extended temporal scope in light of the commitments and undertakings of various armed groups. She concluded, however, that all approaches are challenged by their feasibility when transposed into the midst of an armed conflict and their acceptability by the participants thereof. C. Marquis Bissonnette, above note 10.
152 ICRC Commentary on the APs, above note 13, para. 20.
153 A. Quintin, above note 150.
154 Baxter, Richard, “The Role of Law in Modern War”, Proceedings of the American Society of International Law at Its Annual Meeting, Vol. 47, Cambridge University Press, Cambridge, 1953Google Scholar, referenced in A. Quintin, above note 150, p. 63, fn.18.
155 UNAMA, “Civilian Casualties Set to Hit Unprecedented Highs in 2021, Unless Urgent Action to Stem Violence – UN Report”, 26 July 2021, available at: https://unama.unmissions.org/civilian-casualties-set-hit-unprecedented-highs-2021-unless-urgent-action-stem-violence-%E2%80%93-un-report.