3. Teitel, R., Transitional Justice (New York, Oxford University Press 2000) p. 3Google Scholar.

4. Center for Economic and Social Rights, Human Rights and Reconstruction in Afghanistan (05 2002) (‘CESR Report’) pp. 1–2Google Scholar.

5. Koh attributes these developments to the larger phenomenon of a post-World War II legal system placed under increasing stress by the end of the ‘post-Cold War era’ on September 11. He has suggested that traditional legal dichotomies between ‘war and peace, public and private, domestic and international, and civil and criminal’ have become ‘muddied’ and that we are witnessing a ‘transition from global optimism [the period from 1989 to 2001] to pessimism [the post-September 11 period]’ and that this transition may be seen in three areas of the law: the use of force, the rise of the global justice system, and the relationship between civil liberties and national security. Koh, H., ‘The Law Under Stress After September 11’, Yale L Rep. (2002) pp. 12 at 13–14Google Scholar.

6. Various religions such as Zoroastrianism, Graeco-Buddism and Islam have existed in Afghanistan under successive ruling dynasties, including the Ghaznavid, Ghorid, Lodhi, Safavid and Moghul empires. Today, the country has a population of approximately 27 million people comprised of a number of ethnic groups: Pashtun (38%), Tajik (25%), Hazara (19%), minor ethnic groups (Aimaks, Turkmen, Baloch and others) (12%), and Uzbek (6%).

7. The Durand Line, established by Britain in 1893, was an artificial colonial division between present day Pakistan and Afghanistan that still divides the ethnic Pashtun tribes.

8. Zahir Shah was exiled to Rome, where he remained until the events of 11 September 2001.

9. In December 1978, Afghanistan signed a Treaty of Friendship, Good Neighborliness, and Cooperation with the USSR that obliged the Soviets to provide military aid if requested by Afghanistan.

10. See Human Rights Watch, Backgrounder on Afghanistan: History of the War (2002) p. 1Google Scholar.

11. This ensured the collapse of the Afghan economy by turning more than a third of the population into refugees (five million out of a total population of 16 million), forcing the abandonment of more than half of the country's farming villages due to the aerial bombardment, and leaving only 20 to 25 percent of arable land being cultivated: see ESCR Report, supra n. 4, p. 59.

12. During this period, militant religio-political groups and madrasas proliferated in Pakistan. Today there are 58 registered religious political parties and 24 armed religious militias in the country. See Shafqat, S., ‘From Official Islam to Islamism: The Rise of Dawat-ul-Irshad and Lashkar-e-Taiba’, in Jaffrelot, C., Pakistan: Nationalism without a Nation? (New Delhi, Manohar/London, Zed Books 2002) pp. 131 at 133–134Google Scholar.

13. The framework for an Afghan interim government forged by Pakastani-based Mujahidin in the Peshawar Agreement of 24 April 1992 collapsed only months after its implementation.

14. Human Rights Watch report, supra n. 10, p. 3.

15. Mullah Omar assumed the title amir-ul momineen (commander of the faithful). In order to enforce Islamic law, the Taliban created the Ministry of Promotion of Virtue and Prevention of Vice which was responsible for enforcing all decrees regarding moral behavior. This included comprehensive policies that were especially repressive towards women (prohibiting work outside the home in areas other than health care, virtually eliminating education for women and girls and requiring a draconian dress code) but also rigidly restricted the freedom of men in many areas of personal and social life.

16. Despite the fact that the Taliban had control of over 80 percent of the country, it failed to achieve international recognition as the legitimate government of Afghanistan. The UN continued to regard Rabbani's government as the de jure government of Afghanistan in exile (the ‘Islamic State of Afghanistan’), a position later confirmed in the Bonn Agreement of 5 December 2001. See infra n. 34 and accompanying text. The response of the Organization of the Islamic Conference was to leave the Afghan seat vacant until such time as the question of legitimacy could be resolved through negotiations among the warring factions.

17. Although there have been numerous agreements by Afghanistan's neighbors and other states involved in the conflict to end arms supplies as part of a larger peace process, none of these agreements has included enforcement mechanisms. On 21 July 1999, at a meeting in Tashkent of the Group of Six-plus-Two, comprising the countries bordering Afghanistan plus the US and Russia, the delegates signed an agreement, subsequently known as the Tashkent Declaration, in which they agreed ‘not to provide military support to any Afghan party and to prevent the use of our territories for such purposes’.

18. SC Res. 1267 (1999).

19. SC Res. 1333 (2000).

20. United Front leaders have claimed that the assassins were linked to Osama bin Laden, and many observers believe that the assassination was designed to deprive the United Front of its most effective leader in the aftermath of the events of September 11: see Human Rights Watch report, supra n. 10, p. 5.

21. SC Res. 1368 (2001).

22. SC Res. 1373 (2001).

23. Letter from the Permanent Representative of the US to the President of the UN Security Council (S/2001/946).

24. For discussion on self-defense and state responsibility for terrorist acts, see infra n. 58 and accompanying text

25. See Glasser, S.B., ‘U.S. Backing Helps Warlords Solidify Power’, Washington Post (18 02 2002)Google Scholar; Human Rights Watch, ‘Dangerous Dealings: Changes to U.S. Military Assistance After September 11’, Vol. 14(1)(G) (February 2002) at pp. 6–8.

26. See Human Rights Watch Briefing Paper, ‘Afghanistan: Return of the Warlords’, June 2002 (noting the reemergence of figures associated with the Taliban as well as the extremist Islamist movement led by the former Afghan Prime Minister Gulbuddin Hekmatyar in several southern provinces).

27. Rushid, A., ‘Fledgling Afghan Government Faces Scourge of Warlordism — Local Leaders Who Ousted Taliban With Aid of U.S. Are Restoring Old Fiefs’, Wall Street Journal (16 01 2002)Google Scholar.

28. Most casualties are believed to have resulted from ‘collateral damage’ due to the US bombing of heavily populated metropolitan areas where military installations and other strategic targets were also located. In isolated cases, it appears that bombs were dropped on hospitals, schools, mosques and groups of fleeing refugees: see e.g., Herold, M.W., A Dossier on Civilian Victims of United States' Aerial Bombing of Afghanistan: A Comprehensive Accounting (2002)Google Scholar available online at http://www.cursor.org/stories/civilian_deaths.htm (suggesting that the US targeted civilian infrastructure, including the Kajaki dam and other power stations, radio stations, the Kabul telephone exchange, the Al Jazeera Kabul office, trucks and buses containing refugees, and numerous civilian trucks carrying fuel and oil). There have also been reports of US strikes on a Red Cross warehouse in Kabul (which was allegedly used by the Taliban for supplies) and a Red Crescent clinic in Kandahar on 31 October 2001 killing 15–25 civilians. Note, however, that there is disagreement over the numbers of civilian casualties and that the figures suggested by Herold have been challenged as being excessive: see Muravchik, J., ‘Racking Up Afghan Casualties’, Wall Street Journal Europe (21 08 2002)Google Scholar at A8 (arguing that the figure of over 3,500 civilian casualties is unsubstantiated).

29. Weapons employed by the Air Force have included medium-sized Tomahawk and cruise missiles; fuel air bombs; B-52 carpet bombs; BLU-82 sub-atomic bombs (known as ‘daisy cutters’ which destroy everything in a 600 yard radius); 1,000 and 2,000 pound JDAM (Joint Direct Attack Munition) bombs; and Aerojet/Honeywell CBU-87 cluster bombs. As of 30 November 2001, it is estimated that US bombers had dropped approximately 600 cluster bombs in Afghanistan. Assuming a failure rate of 12 percent, this suggests that there are currently about 14,500 unexploded bomblets in the Afghan countryside and villages adding to the existing proliferation of landmines: see Steen, M., ‘US Cluster Bombs Add to Afghan Landmine Tragedy’, Reuters News Service (5 12 2001)Google Scholar.

30. See Human Rights Watch, Backgrounder, Afghanistan: Return of Foreign Fighters and Torture Concerns (12 2001)Google Scholar.

31. See Security Council Meeting 4414, SC/7210, 13 November 2001 (Secretary General's Special Representative, Lakdhdar Brahimi, outlining plans for political transition in Afghanistan and stressing the need for a ‘home-grown solution that was aided by the international community’ in order to create a ‘stable, representative and accountable government with both internal and external legitimacy’).

32. The UN Special Mission to Afghanistan (UNSMA) operated for many years on a relatively minor budget. In 1997, for example, UNSMA received $3.1 million for its peacemaking operations and 30-person staff in Kabul and Islamabad: see Press Release, UN General Assembly, Fifth Committee, GA/AB/3130, 16 December 1996. Following the negotiation of the Bonn Agreement, on 28 March 2002, the Security Council endorsed the establishment, for an initial period of 12 months, of a UN Assistance Mission in Afghanistan (UNAMA) in order to integrate all existing UN elements into a single mission: see Report of the UN Secretary General, The situation in Afghanistan and its implications for international peace and security, A/56/875-S/2002/278 (18 March 2002) at Ch. VI, para. 94 et seq.

33. Thus, whereas sustained grassroots peace-building, peacekeeping and institutional construction have been pursued in other conflicts prior to establishing self-governing institutions, in Afghanistan the strategy was to assemble a broadly-based administration as quickly as possible in order to establish security and a partnership with the international community (which would assume a supportive role): see Dobbins, J., the US Special Envoy for Afghanistan, Remarks at a US Institute of Peace conference titled ‘Afghanistan: Prospects for Peace and Reconstruction’ (15 01 2002)Google Scholar. As has been pointed out, however, this strategy creates a ‘divide between formal authority and practical influence, increasing the risk that the political consensus established in the Bonn Agreement and recently reaffirmed at the Loya Jirga Kabul will spin out of control’: Chesterman, S., ‘Afghanistan: The Hard Part for the UN Starts Now’, International Herald Tribune (5 07 2002)Google Scholar (arguing that the success of the UN mission in Afghanistan requires the Bonn Agreement to be seen not as a final status agreement but as a framework for further negotiations and for the UN to be able to exert significant political influence over that process).

34. Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, S/2001/1154, 5 December 2001 (the ‘Bonn Agreement’), endorsed by SC Res. 1383 (2001), 6 December 2001.

35. Report of the Secretary General, supra n. 32, para. 7.

36. Art. I, sec. 2 of the Bonn Agreement provides that the Interim Authority is to consist of an Interim Administration presided over by a Chairman, a Special Independent Commission for the Convening of the Emergency Loya Jirga, and a Supreme Court of Afghanistan, as well as any other courts established by the Interim Administration. The Interim Authority is the sole repository of Afghan sovereignty, represents Afghanistan in its external relations, and occupies Afghanistan's seat at the UN, its specialized agencies and other international bodies: Art. I, sec. 3.

37. Art. I, sec. 4 of the Bonn Agreement.

38. This requires the Transitional Authority to establish a Constitutional Commission with the assistance of the UN: Art. I, sec. 6. Until a new Constitution is adopted, the Constitution of 1964 and existing laws and regulations constitute the applicable legal framework in the country (with some exceptions relating to the Bonn Agreement itself, international legal obligations to which Afghanistan is a party, and several provisions in the 1964 Constitution relating to the monarchy and executive and legislative bodies).

39. Four main groups signed the Bonn Agreement: the Northern Alliance, the Pakistan-based Peshawar Front, the Iran-backed Cyprus Group, and the Rome Process representing former King Zahir Shah. The 30-member cabinet of the Interim Administration included 11 Pashtuns, eight Tajiks, five from the Shi'a Hazara population, three Uzbeks, with the rest drawn from other minorities. Despite efforts to the contrary by the Special Independent Commission for the Convening of the Emergency Loya Jirga and the UN, warlords such as General Abdul Rashid Dostum and Commander Atta Mohammed selected themselves to the Loya Jirga, while in the west of the country, Ismail Khan reportedly manipulated the selection process: see Human Rights Watch briefing paper, supra n. 26 at p. 11.

40. Mohammad Qasim Fahim, the commander-in-chief of the Northern Alliance's Jamiat forces, became the Defense Minister in the Interim Administration; Yunus Qanooni, who led the Northern Alliance delegation, became the Interior Minister; and Abdullah Abdullah, who retained his position as foreign secretary, became the Foreign Affairs Minister. General Abdul Rashid Dostum, the military governor of Herat and commander of Junbish, initially denounced the Bonn Agreement but was ultimately assigned the post of deputy defense minister. Similarly, Ismail Khan, an ally of Jamiat leader Burhannudin Rabbani, pledged to recognize the Interim Administration while proclaiming autonomy for five western provinces: see Baker, P., ‘Afghan Factions Criticize Accord: Some Leaders Vow to Boycott Regime’, Washington Post (7 12 2001)Google Scholar cited in Human Rights Watch, Paying for the Taliban's Crimes: Abuses Against Ethnic Pashtuns in Northern Afghanistan, Vol. 14(2)(C) (04 2002) at p. 7Google Scholar.

41. The cabinet of the subsequent Transitional Administration named by President Karzai in late-June 2002 differed only slightly from that of the Interim Administration.

42. Art. II, sec. 2 stipulates that a Judicial Commission will be established to ‘rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions’. Art. III, sec. C, para. 6 stipulates that a Human Rights Commission will be established with its responsibilities to include ‘human rights monitoring, investigation of violations of human rights, and development of domestic human rights institutions’.

43. Bonn Agreement, Art. V, sec. 2. The Interim Authority is also required to ‘respect international law’ (Art. V, sec. 3) and to ‘ensure the participation of women as well as the equitable representation of all ethnic and religious communities in the Interim Administration and Emergency Loya Jirga’ (Art. V, sec. 4).

44. The UN is also responsible for the ‘development and implementation of a programme of human rights education to promote respect for and understanding of human rights’: Annex II — Role of the United Nations During the Interim Period, sec. 6. The advancement of the rights and participation of women and the integration of a gender perspective will be a primary focus for these institutions. In this regard, the Office of the High Commissioner for Human Rights has seconded a human rights adviser to the Office of the Special Representative in Kabul to provide advice in the initial stages of developing a human rights programme. In addition, the work of the Special Rapporteur of the Commission on Human Rights, Kamal Hossain, remains integral to this process: see Report of the Secretary General, supra n. 32, para. 43.

45. SC Res. 1401 of 28 March 2002.

46. Under the Bonn Agreement, it was agreed that ‘responsibility for providing stability and law and order throughout the country resides with the Afghans themselves’. Given that it would take some time to reconstitute Afghanistan's security and armed forces, however, a request was made to the Security Council to consider authorizing the early deployment of a UN-mandated force to ‘assist in the maintenance of security for Kabul and its surrounding areas’ and which could, ‘as appropriate, be progressively expanded to other urban centers and other areas’: Annex I — International Security Force, sec. 3. On 20 December 2001, the Security Council, acting under Chapter VII of the UN Charter, authorized an International Security Assistance Force (ISAF) for a period of six months to assist the Interim Authority maintain security in ‘Kabul and its surrounding areas’. Despite repeated requests by both the Afghan administration and the Secretary-General, the Security Council has refused to expand the mandate of the ISAF to areas outside of Kabul and its immediately surrounding areas. See Report of the Secretary-General, supra n. 32, paras. 58–59 (noting that while the ISAF remains limited to Kabul, the main threats to the Interim Administration emanate from the provinces).

47. Question of human rights in Afghanistan, A/Res/56/176, 7 February 2002 (calling upon all Afghan parties, inter alia, to ‘facilitate the provision of efficient and effective remedies to the victims of grave violations and abuses of human rights and of international humanitarian law and to bring the perpetrators to justice in accordance with international standards’ and to ‘treat all suspects and convicted or detained persons in accordance with relevant international law’).

48. The situation of human rights in Afghanistan, Comm. HR Res. 2002/19, E/CN.4/2002/L.31, 22 April 2002 (calling upon the Interim Authority, its successors and all Afghan groups, in application of the Bonn Agreement, to ‘adhere strictly to their obligations under human rights instruments and international humanitarian law, inter alia, in relation to the treatment of prisoners’ and strongly condemning the ‘past violations and abuses of human rights and international humanitarian law in Afghanistan by the Taliban and others’, including torture, the use of child soldiers, civilian massacres and summary executions, the killing of foreign correspondents, Iranian diplomats and UN personnel, and the gross violations of the human rights of women and girls).

49. A/56/875-S/2002/278 at pp. 9, 21.

50. CESR Report, supra n. 4, at p. 2.

51. Afghanistan is a party to the Convention on the Prevention and Punishment of the Crime of Genocide; International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Rights of the Child. Afghanistan has signed but not ratified the Convention on the Elimination of All Forms of Discrimination Against Women.

52. See e.g., Meron, T., ‘The Humanization of International Humanitarian Law’, 94 AJIL (2000) p. 239CrossRefGoogle Scholar.

53. See e.g., Meron, T. and Rosas, A., ‘A Declaration of Minimum Humanitarian Standards’, AJIL (1991) p. 375CrossRefGoogle Scholar; Eide, A., Rosas, A. and Meron, T., ‘Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards’, 89 AJIL (1995) p. 215CrossRefGoogle Scholar; Petrasek, D., ‘Moving Forward on the Development of Minimum Humanitarian Standards’, 92 AJIL (1998) p. 557CrossRefGoogle Scholar. See also Minimum Humanitarian Standards: Analytical Report of the Secretary-General Submitted pursuant to Commission on Human Rights resolution 1197/21, UN Doc. E/CN.4/1998/87 (1998).

54. See Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, ICJ Reps. (1996) p. 226, para. 25Google Scholar.

55. Meron, supra n. 52, pp. 266–273.

56. See Decision on the Interlocutory Appeal on Jurisdiction, Prosecutor v. Duško Tadić, 35 ILM (1996) p. 32, para. 77Google Scholar; Prosecutor v. Tadić, Opinion and Judgment, case IT–94–1–T (7 May 1997), 36 ILM (1997) p. 908Google Scholar.

57. Ibid.

58. Under international law the question of state responsibility for terrorist acts is unsettled. See Henkin, L., International Law: Politics and Values (Dordrecht, Martinus Nijhoff Publishers 1995) p. 125Google Scholar; Brownlie, I., International Law and the Use of Force by States (Oxford, Clarendon Press 1981) p. 370Google Scholar. However, the question of the extent of control required by the Taliban over Al Qaeda's terrorist operations appears to have been settled by SC Res. 1368 (2001): a state which aids, harbours or supports terrorists who carry out armed attacks against another state will be held responsible under international law and may be subject to a use of force in self-defense.

59. Aldrich, G., ‘The Taliban, al Qaeda, and the Determination of Illegal Combatants’, Presentation made at the Conference on the ‘Twenty Fifth Anniversary of the Additional Protocols to the Geneva Conventions’,The Hague,7 June 2002. Reprinted in 4 Humanitäres Völkerrecht (2002) p. 202Google Scholar.

60. The main consequence would be that any member of Al Qaeda in any state or territory would be a ‘combatant’ (or, in the US view, an ‘unlawful combatant’) under international humanitarian law and hence a legitimate target for US military action. If accepted, such a position would represent a radical change to both humanitarian and general international law regarding the use of force.

61. There is some uncertainty regarding the exact point at which an international armed conflict commenced. Some commentators have argued that the August 1998 bombing by Al Qaeda of the US embassies in Nairobi and Dar-es-Salaam constitutes the relevant date or, failing that, the September 11 terrorist attacks themselves. See, for example, Paust, J., ‘Responding Lawfully to International Terrorism: The Use of Force Abroad’, 8 Whittier LR (1986) p. 711Google Scholar These arguments assume, however, that an international armed conflict may arise between a state and a non-state international terrorist organization not linked to any particular state or territory. The better view is that the US military offensive of 7 October marked the point at which an international armed conflict began, at least as between the US and Afghanistan, and hence constituted the point at which international humanitarian law became applicable. A further complication is the question whether an ‘armed attack’ under Art. 51 of the UN Charter may be equated with the concept of an ‘international armed conflict’ for the purposes of humanitarian law (i.e., whether once a state has been subject to an armed attack — albeit by a non-state actor — the threshold for the application of the rules of humanitarian law that regulate international armed conflicts is thereby crossed). It is clear that the Security Council, NATO and the community of nations have accepted that while the US was attacked by a non-state terrorist organization, it was nevertheless subject to an ‘armed attack’ for the purposes of Art. 51, thus justifying the use of force in self defense. This issue affects the characterization under humanitarian law of the September 11 terrorist acts themselves (which cannot constitute war crimes unless there was an international armed conflict in existence when they were committed). Such acts may still, however, constitute crimes against humanity, violations of treaties governing matters such as hijacking, aircraft safety, terrorism etc., or simply crimes under domestic law: see infra n. 93 and accompanying text. See also Franck, T., ‘Terrorism and the Right of Self-Defence’, 95 AJIL (2001) p. 839CrossRefGoogle Scholar (arguing that self-defense is not limited to armed attacks by states, nations or belligerents);

62. Watch, Helsinki, ‘Tears, Blood and Cries’: Human Rights in Afghanistan Since the Invasion 1979–1984, 12 1984Google Scholar.

63. See Hyman, A., Afghanistan under Soviet Domination, 1964–1981 (New York, St Martin's Press 1982) p. 81Google Scholar.

64. Indiscriminate bombing not directed at a specific military objective violates AP I, Art. 51 (4); reprisals against villages and villagers violates AP I, Arts. 51 (6) and 52(1); summary executions violate ICCPR, Arts. 6 and 7 and AP I, Art. 51(2); placing mines in inhabited areas or in homes violates AP I, Arts. 51 (4b), (5b), 35(2); burning bodies of the slain and mining corpses with grenades violates AP I, Art. 34(1); destruction of agriculture violates AP I, Art. 54 (starvation of civilians as a method of warfare); stealing the property of civilians violates Geneva IV, Art. 33; attacks on and desecration of mosques violates AP I, Art. 52(3); suppression of freedoms of speech, press, political activity, association, assembly and movement; torture; detention in inhumane conditions; trial without due process all violate fundamental rights protected under the ICCPR (some of which may be derogated from in a time of public emergency threatening the lifeof the nation). See Helsinki Watch report, supra n. 62, pp. 167–170.

65. See Amnesty International, Afghanistan: Reports of torture, ill-treatment and extrajudicial executions of prisoners 1992 (noting violations of the ICCPR and the Torture Convention).

66. See Amnesty International, Women in Afghanistan: A Human Rights Catastrophe, 05 1995Google Scholar. See also the Human Rights Watch report, The Forgotten War: Human Rights Abuses and Violations of the Laws of War Since the Soviet Withdrawal (1991).

67. See supra n. 15 and accompanying text.

68. See Human Rights Watch, Afghanistan: Massacres of Hazaras in Afghanistan, Vol. 13(1), 19 02 2001Google Scholar. See also Report of the situation of human rights in Afghanistan submitted by Mr Kamal Hossain, Special Rapporteur, in accordance with HR Commission resolution 2000/18, E/CN.4/2001/43, 9 March 2001, at paras. 40–4.

69. See Human Rights Watch, Humanity Denied: Systematic Denial of Women's Rights in Afghanistan, Vol. 13(5), 10 2001Google Scholar.

70. See Constable, P., ‘Afghans Condemn Killings of Taliban — Investigation into Deaths is Uncertain’, Washington Post (22 08 2002) at p. A10Google Scholar (noting that while the Afghan government has condemned the killings it has not carried out any investigations); Dehghanpisheh, B., Barry, J. and Gutman, R., ‘The Death Convoy of Afghanistan’, Newsweek (26 08 2002)Google Scholar (noting that General Abdul Rashid Dostum was in charge of the militia forces accused of committing the abuses and continues to run the region in the north of the country near Mazar-e Sharif, making any government investigation of the deaths unlikely); ‘Dead on Arrival — A War Crime in Afghanistan’, The Economist (22 08 2002) at p. 34Google Scholar (noting mounting pressure on ‘local and international authorities to uncover the truth’, including whether US forces in the area at the time had knowledge of the use of containers to transport detainees).

71. See supra n. 40 and accompanying text.

72. See Human Rights Watch, supra n. 40 (noting that in other parts of the north, commanders affiliated with the three major parties have established de facto authority over large areas, marking the return to a virtual monopoly of power by individual warlords).

73. Note, for example, the recent standoff between the Afghan Transitional Authority and Padsha Khan Zadran, a warlord in control of significant areas in southeast Afghanistan who rejects the leadership of Hamid Karzai and is seeking a formal position in the central government. Following the Bonn process, Zadran was appointed as the governor of Paktika province but another local warlord blocked him from taking office in Gardez. In April 2002, Zadran carried out a revenge rocket attack on Gardez, killing 36 people, including numerous civilians. In a direct affront to Karzai, Zadran now claims effective control of three southeastern provinces which the Transitional Authority has assigned to other regional leaders. See I. Fisher, ‘Warlord Pushes for Control of a Corner of Afghanistan: Karzai Warns Armed Response is Possible’, New York Times (6 08 2002) at p. A8Google Scholar.

74. See Human Rights Watch, Crisis of Impunity: The Role of Pakistan, Russia, and Iran in Fueling the Civil War, Vol. 13(3), 07 2001Google Scholar.

75. See Helsinki Watch, supra n. 62.

76. The Geneva Conventions and AP I oblige the contracting parties to make grave breaches of the protective provisions liable to punishment and to take all suitable measures to ensure compliance with the Conventions: Geneva I, Arts. 49, 50; Geneva II, Arts. 50, 51; Geneva III, Arts. 129, 130; Geneva IV, Arts. 146, 147; AP I, Art. 85. Under Art. 2 of the ICCPR, states are required to ‘respect and ensure’ the rights recognized in the Covenant. Furthermore, any acts amounting to genocide or crimes against humanity (widespread or systematic attacks directed against a civilian population whether during peace or wartime) — either of which may be applicable in the case of Soviet atrocities in Afghanistan — are subject to individual responsibility under international law.

77. During the Soviet occupation, thousands of ‘butterfly mines’, known as PFM-ls, were randomly disseminated by helicopter over large areas of Afghanistan. In general, mines placed without customary precautions and which are unrecorded, unmarked, or are not designated to destroy themselves within a reasonable time may be ‘blind weapons’ in relation to time and are thus prohibited. Contact mines may also violate prohibitions on the use of weapons ‘the primary purpose of which is to spread terror among the civilian population’: AP I, Art. 51(2). The main source of international law governing the use of landmines is the 1981 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II), annexed to the 1981 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious and to Have Indiscriminate Effects: Final Act, app. C, opened for signature 10 April 1981, UN Doc. A/CONF.95/15 (1980) (‘Land Mines Protocol’) which gives effect to several principles of customary law relating to the protection of the civilian population.

78. See Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the ILC at its fifty-third session (November 2001), Art. 2 (‘Draft Articles on State Responsibility’). On the issue of state responsibility for the conduct of armed forces, see Kalshoven, F., ‘State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond’, 40 ICLQ (1991) pp. 827, 853–858CrossRefGoogle Scholar (noting that in the Nicaragua case the ICJ recognized the possibility in principle for a state to become directly responsible for conduct of a foreign armed force that cannot, under the terms of Art. 43 of Protocol I, be regarded as part of its armed forces).

79. Although there have been numerous agreements by Afghanistan's neighbors and other states involved in the conflict to end arms supplies as part of a larger peace process, none of these agreements has included enforcement mechanisms. On 21 July 1999, at a meeting in Tashkent of the Group of Six-plus-Two, comprising the countries bordering Afghanistan plus the US and Russia, the delegates signed an agreement, subsequently known as the Tashkent Declaration, in which they agreed ‘not to provide military support to any Afghan party and to prevent the use of our territories for such purposes’.

80. Human Rights Watch, supra n. 74, pp. 35–40.

81. Ibid., pp. 40–49 (noting the direct role of Russia in arranging for the transportation of Iranian aid and providing assistance to Massoud and other anti-Taliban leaders, and the indirect support provided by Tajikistan, Uzbekistan, Turkmenistan and Kyrgyzstan in allowing cargo to transit through, and military bases and training camps to operate in, their territories)

82. Apart from questions of attribution and state responsibility, these actions also raise potential violations of the United States' ‘Leahy Law’. Section 563 of the Foreign Operations Appropriations Act for Fiscal Year 2001 prohibits the provision of funds under the Act to ‘any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights, unless the Secretary determines that … the government of such country is taking effective measures to bring the responsible members of the security forces unit to justice’: P.L. 104–208. Given the long history of abuses by Northern Alliances forces, US military assistance post-7 October 2001 appears to be in direct violation of this law.

83. Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the ILC at its fifty-third session (November 2001), Art. 8 (Conduct directed or controlled by a state) (‘Draft Articles on State Responsibility’). On the issue of state responsibility for the conduct of armed forces, see Kalshoven, F., ‘State Responsibility for Warlike Acts of the Armed Foreces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond’, 40 ICLQ (1991) pp. 827, 853–858CrossRefGoogle Scholar (noting that in the Nicaragua case the ICJ recognized the possibility in principle for a state to become directly responsible for conduct of a foreign armed force that cannot, under the terms of Art. 43 of Protocol I, be regarded as part of its armed forces).

84. Tadić Appeals Decision, supra n. 56, paras. 137–138.

85. Such military assistance may also have violated the Tashkent agreement. See supra n. 17.

86. Draft Articles on State Responsibility, supra n. 83, Art. 31 (injury' includes any damage, whether material or moral, caused by the internationally wrongful act of a state).

87. See supra n. 56 and accompanying text.

88. See Gasser, H.-P., ‘Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon’, 33 Amer. Univ. LR (1983) p. 149Google Scholar.

89. See Paust, J.J., ‘Terrorism and the International Law of War’, 64 Mich. LR (1974) p. 1Google Scholar.

90. See Gasser, H-P., ‘Prohibition of terrorist acts in international humanitarian law’, IRRC No. 253 (1986) pp. 200 at 202–205 and the same writer in this volume at p. 329CrossRefGoogle Scholar.

91. In relation to non-international armed conflicts, common Art. 3 makes clear that terrorist acts of any kind against persons not taking part in the hostilities are absolutely prohibited. In identical terms to Art. 51(2) of AP I regarding international armed conflicts, Art. 13 of AP II stipulates that acts or threats of violence ‘the primary purpose of which is to spread terror among the civilian population’ are prohibited.

92. The more difficult question is whether a member of Al Qaeda fighting alongside the Taliban who takes up arms against opposing forces (whether of the Northern Alliance forces or US forces) is thereby committing a crime. This will depend on whether the Al Qaeda member is a ‘combatant’ for the purposes of international humanitarian law: see infra n. 107 and accompanying text.

93. Jurisdictional questions would arise in relation to whether the state on whose territory the crime was committed or the state of nationality of either the perpetrator or the victims were parties to the relevant treaty. In relation to US domestic law, acts of terrorism may be prosecuted under the US Antiterrorist Act of 1990, 18 U.S.C. §2331 (2000).

94. Given the high degree of orchestration and planning behind the September 11 attack on the World Trade Center (the Pentagon being a military rather than civilian target), a case can be made that the ‘systematic’ requirement of crimes against humanity is satisfied: see Mundis, D.A., ‘The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts’, 96 AJIL (2002) pp. 320, 327CrossRefGoogle Scholar.

95. As discussed, supra n. 61, the uncertainty relates to the fact that the September 11 attacks were carried out by a non-state terrorist organization. The Bush administration has stated that the scale of the attack ‘created a state of armed conflict’: see November 13 Military Order, infra n. 96, sec. 1(a) (although the Order does not specify exactly with whom).

96. 66 Fed. Reg. 57,833 (16 November 2001).

97. While the two Additional Protocols of 1977 contain further extensive provisions on these issues, neither Protocol has been ratified by the US or Afghanistan. Several of these provisions, however, are regarded as being representative of customary international humanitarian law: see Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, Oxford University Press 1991)CrossRefGoogle Scholar; Aldrich, G., ‘Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions’, 85 AJIL (1991) pp. 1 at 19CrossRefGoogle Scholar (arguing that much of Protocol I is ‘clearly a codification of customary law’).

98. Geneva III, Art. 4A sets out the requirements for POW status.

99. Paust has noted that during an armed conflict ‘all persons who are not prisoners of war, including so-called unprivileged or unlawful combatants who may or may not have prisoner of war status, have at least various non-derogable rights to due process under the Geneva Civilian Convention and Geneva Protocol I’. See Paust, J.J., ‘Antiterrorism Military Commissions: Courting Illegality’, 23 Mich. JIL (2001) pp. 1 at 7, n. 15Google Scholar.

100. Commentary, Pictet, J., ed., IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross 1958) p. 51Google Scholar.

101. Geneva III, Art. 5.

102. Status of Detainees at Guantanamo, Fact Sheet, White House, Washington DC, 7 02 2002Google Scholar.

103. 317 US 1, 32 (1942) (eight German saboteurs captured on US territory were denied POW status and tried before a special military commission).

104. DoD News Briefing — Secretary Rumsfeld and Gen. Myers 11 January 2002, 2:10 pm (Pentagon), DoD News Briefing — ASD PA Clarke 14 January 2002 — 12:30 pm. Reproduced in this volume at pp. 657–658.

105. Most legal scholars agree that the Taliban should be accorded POW status under Geneva III. See ‘Agora: Military Commissions’, 96 AJIL (2002) pp. 320Google Scholar et seq; Paust, supra n. 99. The status of members of Al Qaeda under humanitarian law, however, is more controversial. Following the authoritative ICRC commentaries, Al Qaeda members should be accorded the status of ‘protected persons’ under Geneva IV who may be prosecuted in the same manner as all other civilians who are prohibited from taking a direct part in hostilities. Alternatively, they may in some cases have attained the status of POWs in accordance with Geneva III, Art. 4A(2); AP I, Art. 44; and relevant customary norms. The US Department of the Army Field Manual further confirms this position stating that if a ‘person is determined by a competent tribunal, acting in conformity with Art. 5 [Geneva III] not to fall within any of the categories listed in Article 4 [Geneva III], he is not entitled to be treated as a prisoner of war. He is, however, a ‘protected person’ within the meaning of Article 4 [Geneva IV]’ (citations omitted): U.S. Department of the Army, Field Manual 27–10, The Law of Land Warfare, 15 July 1976, § 73. There is, however, at least one difficulty with this position. Geneva IV, Art. 70 provides that protected persons shall not be ‘arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation … with the exception of breaches of the laws and customs of war’. If Al Qaeda members were accorded the status of protected persons, the US would thus be prohibited from prosecuting them for terrorist acts such as those committed on September 11, 2001. Presumably, however, they could be prosecuted for war crimes committed in Afghanistan prior to 7 October 2001. Clearly, Art. 70 is in need of revision if the rules of humanitarian law are to remain relevant in the wake of September 11.

106. On 25 February 2002, a petition was lodged with the Inter-American Commission on Human Rights, of which the US is a member, seeking certain provisional measures in relation to the Guantánamo detainees. See Detainees in Guantánamo Bay, Request by the Center for Constitutional Rights, the Human Rights Clinic at Columbia Law School and the Center for Justice and International Law for Precautionary Measures Under Article 25 of the Commission's Regulations, 25 February 2002. On 13 March, the Commission upheld the petition and ruled that the US must immediately convene a ‘competent tribunal’ as required by Art. 5 of Geneva III to resolve the legal status of each of the detainees. The US has challenged the Commission's ruling, arguing that it has already conducted multi-agency, case-by-case screening procedures on the battlefield in Afghanistan which render an Art. 5 tribunal unnecessary. See Response of the United States to Request for Precautionary Measures — Detainees in Guantánamo Bay, Cuba, 12 April 2002. It is questionable, however, whether these screening procedures comply even with the US Army's internal code of conduct. The relevant provisions in the US Army Field Manual — which stand as the US interpretation of its obligations under international humanitarian law — require a ‘competent tribunal’ to comprise a board of ‘not less than three officers’ in determining whether a person claiming treatment as a POW, and who has committed a ‘belligerent act or has engaged in hostile activities in aid of the armed forces’, is entitled to that status. See FM, ibid., Ch. 3, Sec II, Art. 71, ‘Interim Protection’.

107. AP I, Art. 44 indicates that humanitarian law is progressively developing in such a way that criteria such as the uniform requirement are subordinate to the issue of whether individuals are members of a party to the armed conflict. Art. 44 deals mainly with combatants using methods of guerrilla warfare and ensures that once captured such persons are given ‘protections equivalent in all respects to those accorded to prisoners of war’ under Geneva III: see AP I, Art. 44(4). During the Vietnam war, the US granted captured Viet Cong fighters POW status despite their lack of uniform or identifying insignia. The curious logic of the current US position means that even soldiers of the Northern Alliance — who operated as proxy forces for the US in the fourth phase of the armed conflict in Afghanistan and who similarly fail to meet the uniform criteria -may be regarded as ‘unlawful combatants’. If accepted, this position would have far-reaching and illogical consequences in any future war crimes trials in Afghanistan. As ‘unlawful combatants’, Northern Alliance soldiers could be prosecuted along with Taliban and Al Qaeda members as common criminals in accordance with AP I, Art. 45 for merely taking part in the hostilities both against each other and against the US and other international military forces (‘lawful combatants’). Even if this were the case, however, such persons must at a minimum be treated in accordance with the fundamental guarantees of AP I, Art. 75 (provided that Geneva IV, to the extent that it is applicable, does not grant more favorable treatment). See Fleck, D., ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1995) p. 68Google Scholar.

108. Several cases are currently before the US courts seeking to challenge the indefinite detention of individuals captured on the battlefield in Afghanistan and subsequently transferred to the US military base in Guantánamo Bay, Cuba: see e.g., Coalition of Clergy v. Bush, case No. 02–570, 21 February 2002 (petition for habeas corpus rejected in federal court in California); Fawzi Khalid Abdullah Fahad Al Odah v. US, case No. 02–828, July 2002 (federal action brought by 11 Kuwaiti nationals and their family members alleging that their arbitrary detention on Guantánamo Bay violates customary international law and constitutional due process standards); Shafiq Rasul v. Bush, case No. 02–299, July 2002 (habeas corpus proceeding brought in the District of Columbia on behalf of Guantánamo Bay detainees).

109. Geneva III, Art. 25.

110. Note also that Geneva IV, Art. 146, mirrored in all four Conventions, requires that any person prosecuted for violations of the Geneva Conventions, irrespective of their status under humanitarian law, must be provided with ‘safeguards of proper trial and defense, which shall not be less favorable than’ those provided for in Arts. 105 and following of Geneva III. These include the same rights of defense and appeal as those accorded to POWs. If a POW or protected person is willfully deprived of these rights of a fair and regular trial, the persons responsible for such a failure will themselves have committed a grave breach of the Geneva Conventions. See Geneva III, Art. 130; Geneva IV, Art. 147.

111. US Department of Defence, Military Commissions Order No. 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 21 March 2002.

112. ICCPR, Art. 2. For a discussion of the obligations imposed on States Parties by Art. 2 of the Covenant, see Schachter, O., ‘The Obligation to Implement the Covenant in Domestic Law’ in Henkin, L., ed., The International Bill of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press 1981) pp. 311–331Google Scholar. One question that has arisen is whether the obligations of the US under the Covenant extend to its activities in Guantánamo Bay at all, i.e., whether the holding of ‘battlefield detainees’ at the military base in Cuba may be considered as being ‘within [US] territory and subject to its jurisdiction’. See e.g., T. Buergenthal, ‘To Respect and Ensure: State Obligations and Permissible Derogations’ in ibid., at pp. 72, 73–75 (arguing that the phrase ‘within its territory and subject to its jurisdiction’ in Art. 2( 1) of the Covenant should be read as a disjunctive conjunction and that a State Party that ‘denies to an individual subject to its jurisdiction the rights guaranteed in the Covenant violates its obligations even if the individual is not within its territory at the time the violation is committed)’. See also Cyprus v. Turkey, 18 YB Eur. Conv. HR (1975) p. 83Google Scholar (Commission holding that States Parties to the European Convention on Human Rights are ‘bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad)’.

113. ICCPR, Art. 4.

114. Proclamation 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks.

115. ICCPR, Art. 9(1).

116. Art. 9(3)–(4). While Art. 9 may be subject to lawful derogation, the US has not sought to derogate and these obligations must therefore be held to be in full force and effect. Furthermore, the Human Rights Committee has stated that even in times of national emergency, the right to habeas corpus and judicial review of detention cannot be suspended: see General Comment No. 29, States of Emergency (Art. 4), 31 August 2001. Under the US Constitution, habeas corpus may only be suspended in the case of ‘rebellion’ or ‘invasion’, and only then by Congress (although this appears only to apply to persons held on US territory). In Rasul and Odah (see supra n. 108) it was held that in relation to petitions for writs of habeas corpus on behalf of aliens detained by the US at Guantánamo Bay, the Supreme Court's ruling in Johnson v. Eisentrager, 399 U.S. 763 (1950) was controlling and barred the Court's consideration of the merits of these two cases. Johnson v. Eisentrager involved a petition for writs of habeas corpus filed by 21 German nationals captured in China for engaging in espionage against the US following the surrender of Germany, but before the surrender of Japan, at the end of World War II. A US military commission sitting in China convicted the prisoners for violations of the laws of war and repatriated them to a US prison in Germany. Justice Robert Jackson, in an opinion for a divided Supreme Court, held that no court was able to extend the writ of habeas corpus to aliens held outside the sovereign territory of the US (at p. 778). The position was different in relation to ‘citizens’ (both in US territory and abroad) and ‘friendly aliens’ lawfully present or seeking residence within US territorial jurisdiction. But both enemy and friendly aliens captured incident to war have no right to habeas corpus (at p. 776). This decision leaves at least two areas of uncertainty: first, in relation to ‘enemy combatants’ who may be US citizens held outside of US territory, and second, in relation to enemy combatants who are aliens but who are present in US territory. In Rasul and Odah, the Court held that Guantánamo Bay was not within the sovereign territory of the US simply because it exercises ‘jurisdiction and control over that facility’ (at p. 28).

117. Art. 15.

118. See Neier, A., ‘The Military Tribunals on Trial’, New York Review of Books (11 02 2002) at p. 13Google Scholar. See also ‘Agora: Military Commissions’, 96 AJIL (2002) p. 83Google Scholar.

119. When, on 5 April 2002, it was discovered that a prisoner being held at Guantánamo Bay, Yasser Esam Hamdi, was an American citizen, he was immediately transferred to a military jail in Norfolk, Virginia. As a US citizen and alleged ‘enemy combatant’, it was unclear whether Hamdi retained his right to lodge a petition of habeas corpus in federal court demanding that the government either charge him with a crime or set him free. As this raised the opportunity for challenge to the detention and status of all prisoners being held at Guantánamo — and thus the suspension of habeas corpus in relation to ‘enemy alien belligerents’ in general — Hamdi was immediately removed: see Seelye, K., ‘U.S. Moves Taliban Prisoner Born in America to Virginia’, New York Times (5 04 2002)Google Scholar.

120. Art. 41.

121. Human Rights Watch, Past U.S. Criticism of Military Tribunals, Washington, 28 11 2001Google Scholar.

122. Slaughter, A.-M., ‘Terrorism and Justice: An international tribunal comprising US and Islamic judiciary should be set up to try terrorists’, Financial Times (11 10 2001)Google Scholar.

123. Koh, H., ‘We Have the Right Courts for Bin Laden’, New York Times (23 11 2001)Google Scholar.

124. See Fleck, op. cit. n. 107, at pp. 211 et seq. (‘neither the civilian population as such, nor individual civilians, shall be attacked, killed, wounded or taken prisoner without sufficient reason’: AP I, Art. 51(2); AP II, Art. 13).

125. See H. Fischer, ‘The Principle of Proportionality’, available at http://www.crimesofwar.org. A closely related issue is the targeting of objects. Under AP I, Art. 52, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction offers a definite military advantage. This raises difficult questions in relation to objects with dual military and civilian uses such as bridges, roads, power installations and communications networks. Such questions are sure to arise in the context of the US-led strikes in Afghanistan (for example, in relation to the bombing of Red Cross and other food storage facilities in Kabul and the targeting of the civilian infrastructure noted above: see supra n. 28).

126. See Pentagon Team to Examine Bomb Error, BBC News, 8 07 2002Google Scholar (noting that the US had acknowledged that there were civilian deaths when an AC-130 attack helicopter raided villages 250 miles south-west of Kabul). See also Usborne, D., ‘UN keeps damning report on Afghan massacre secret’, The Independent, 31 07 2002Google Scholar (noting in relation to the 1 July wedding party incident that the UN no longer intended to release a report written by a UN fact-finding team that included allegations that the US had under-reported civilian casualties and removed evidence from the site suggesting a ‘cover-up’).

127. Huggler, J., ‘How our Afghan allies applied the Geneva Convention: Prisoners massacred, the dead plundered for boots, guns and even gold teeth’, The Independent (29 11 2001)Google Scholar. General Abdul Rashid Dostum, currently the Transitional Afghan deputy Defence Minister, was in command of the Northern Alliance forces during this incident.

128. UN Integrated Regional Information Network. Mounting Concern over Civilian Casualties', UN Integrated Regional Information Network, 7 January 2002 (noting concerns by both Hamid Karzai and Lakhdar Brahimi following reports that 52 civilians in the eastern province of Paktia were killed in a coalition strike).

129. See supra n. 29 and accompanying text.

130. From a total of 103 sub-munition strikes, 78 were struck by a total of 1,210 CBUs equaling a total of 244,420 sub-munitions. See ‘UN to Clear Coalition Cluster Bombs’, UN Integrated Regional Information Network, 2 January 2002. See also Human Rights Watch Report, ‘Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan’, 18 December 2002 (arguing that the US did not take all feasible precautions to avoid civilian casualties as required by international humanitarian law when it used cluster bombs in or near populated areas; problems included lack of accuracy in targeting during attacks, large numbers of explosive duds remaining after attacks resulting in the deaths of many civilians, and difficulties in clearance).

131. See Rubin, B., ‘Afghanistan and Threats to Human Security’, International Symposium on Human Security, Human Security and Terrorism — Diversifying Threats under Globalization -from Afghanistan to the Future of the World, Tokyo, 15 12 2001Google Scholar.

132. Chesterman, S., Tiptoeing Through Afghanistan: The Future of UN State-Building, International Peace Academy, Transitional Administrations Project, 09 2002Google Scholar.

133. These priorities accord closely with the three prerequisites to long-term security in Afghanistan suggested recently by a coalition of human rights and development NGOs, the Consortium for Response to the Afghanistan Transition (CRAFT): (1) rule of law (determining, publishing and distributing applicable law; establishing the Judicial Commission mandated under the Bonn Agreement as soon as possible; providing governmental salary support; building institutional capacity by training ministry staff, judges, bar members and legal educators; providing basic equipment and law texts); (2) human rights (establishing an effective and independent Human Rights Commission; building the capacity of Afghan civil society to promote and protect human rights; providing human rights education; addressing women's rights; and establishing structures to monitor human rights); and (3) governance (building local institutions and the Bonn commissions): see Report of the Consortium for Response to the Afghanistan Transition, Filling the Vacuum: Prerequisites to Security in Afghanistan, 03 2002, pp. 5–7Google Scholar.

134. International Peace Academy Conference Report, You, the People: Transitional Administration, State-Building and the United Nations, 18–19 October 2002, at Part V (arguing that the Bosnian governments failed to involve local communities and independent professionals in reconstruction planning and implementation, thus impeding the development of legal and judicial institutions and infrastructure).

135. See International Peace Academy, Managing Security Challenges in Post-Conflict Peacebuilding, IPA Workshop Report, 22–23 06 2001, at p. 7Google Scholar (discussing the feasibility of creating an international arresting team separate from the military peacekeeping presence). In East Timor, INTERFET troops were authorized to detain persons suspected of committing serious offences under international law and were required to deliver them to the Force Detention Centre in Dili. See further Martin, I., ‘Justice and Reconciliation: Responsibilities and Dilemmas of Peace-makers and Peace-builders,’ in Henkin, A.H., ed., The Legacy of Abuse: Confronting the Past, Facing the Future (The Aspen Institute and New York University School of Law 2002) at p. 84Google Scholar.

136. See Human Rights Watch, ‘All Our Hopes Are Crushed: Violence and Repression in Western Afghanistan’, Vol. 14, No. 7, November 2002 (arguing that the UN approach of a ‘light footprint’ has proven ineffective to protect human rights and that American military forces have maintained relationships with local warlords that have undercut efforts by US diplomats and aid agencies to strengthen central authority and the rule of law).

137. Statement by Dr Kamal Hossain, Special Rapporteur on the Situation of Human Rights in Afghanistan, 58th Session of the Commission on Human Rights, 26 March 2002, at para. 10.

138. See e.g., International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, 28 January 2003 (observing that the judicial and human rights commissions have, to date, achieved little and that the Chief Justice of the Supreme Court, Fazl Hadi Shinwari, has rapidly placed political allies in key positions and advocated the return of a strict form of sharia law in Afghanistan).

139. Office of the SRSG for Afghanistan (UNAMA) (UNAMA-OSRSG, Kabul, May 2002), cited in Simon Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan, International Peace Academy, Transitional Administration Project, September 2002, at p. 11.

140. Human rights treaties such as the ICCPR emphasize ‘obligations of result’ leaving the determination of means of protecting rights to states: see Schachter, supra n. 112, p. 311. Increasingly, however, human rights treaties specify ‘obligations of means’ as well as result: see Orentlicher, D., ‘Setting Accounts: The Duty to Prosecute Human Rights Violationa of a Prior Regime’, 100 Yale LJ (1991) pp. 2537CrossRefGoogle Scholar.

141. When international criminal law has required states to punish offences committed in their territory, the duty has traditionally applied to crimes committed against foreign nationals: see Orentlicher, supra n. 140, pp. 2551–2555, nn. 63–65.

142. While the ICCPR does not specify a duty to punish violations of rights, it is well accepted that a state State Party fails in its duty to ensure those rights protecting physical integrity if it does not investigate violations and seek to punish those who are responsible. See e.g., Report of the Human Rights Committee, 37 UN GAOR Supp. (No. 40) Annex V, general comment 7(16), para. 1, UN Doc. E/CN.4/Sub.2/Add.1/963 (1982) (complaints about ill-treatment under Art. 7 of the Covenant must be investigated effectively by competent authorities and those found guilty must be held responsible). In addition, a state's failure to punish repeated or notorious violations breaches the customary obligation to respect fundamental human rights: ibid., p. 2552.

143. Arts. 49, 50, 129, and 146 of Geneva I, II, III, and IV respectively enjoin the High Contracting Parties to enact legislation providing ‘penal sanctions’ for grave breaches of the Conventions. Further, common penal provisions of the Conventions confer universal jurisdiction over grave breaches of any Convention making the perpetrators hostes humani generis. The duty to punish or surrender those who have committed grave breaches is not conditioned in any way that suggests any restrictions on jurisdiction. See Bothe, M., ed., National Implementation of International Humanitarian Law (Dordrecht, Martinus Nijhoff Publishers 1990) pp. 73–78Google Scholar.

144. See ICCPR, Art. 2(3). See also Velasquez Rodriguez case, Inter-Am. Ct. H.R. (Ser. C) No. 4, para. 174 (1998) (judgment). As it is difficult to envisage either the warlords or surrounding states assuming responsibility for violations of international law and providing reparations to victims, presumably, the new, fiscally-limited Afghan government will need to assume this responsibility.

145. Note that the Restatement (Third) of the Foreign Relations Law of the United States takes the position that a complete failure to punish repeated or notorious violations of rights protected by customary law generates state responsibility for a breach of the law: § 702 and Comment b.

146. Most domestic penal systems reflect a priority on prosecuting persons responsible for the most serious offences. Any prosecutorial strategy should not, however, be arbitrarily directed towards any particular group of scapegoats in a system of past atrocities: see Davis, K., Discretionary Justice: a preliminary inquiry (Baton Rouge LA, Louisiana State University Press 1969)Google Scholar.

147. In relation to Afghan perpetrators currently in custody, see supra n. 70.

148. As noted by Brown, while the creation of ad hoc tribunals has advanced the cause of international justice, it has also raised questions of fairness and political privilege. Why, for example, were such tribunals created for the Former Yugoslavia and Rwanda but not for Chechnya, Somalia, Cambodia, or the Persian Gulf War? The answer lies in the source of their creation — the Security Council — and hence the full range of political and strategic factors that influence that body (including the veto of the permanent five members). See Brown, B., ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’, 23 Yale JIL (1998) pp. 383 at 386Google Scholar.

149. Afghannews.net, ‘UN urges Afghanistan to screen police, army recruits’, 6 February 2003. Available at http://www.afghannews.net/news.

150. See UN Press Release, Human Rights Committee, Seventy-fourth session, 18 March 2002.

151. See CESR Report, supra n. 4; United States Institute of Peace, Rebuilding Afghanistan: A Framework for Establishing Security and the Rule of Law, 11 December 2001.

152. The ICG has similarly argued that ‘[a]s Afghanistan seeks a balance between secular and religious law, modernity and tradition, it is essential that women are fully represented in the process at all levels. Therefore, they must be involved in all efforts at consultation and the drafting of laws, the commissions, the teaching of law and the rebuilding of the courts.’ ICG Report, International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, 28 01 2003, p. 21Google Scholar.

153. Henkin, L., The Age of Rights (New York, Columbia University Press 1990) p. xviiGoogle Scholar.

154. Ignatieff, M., ‘Is the Human Rights Era Ending?’, New York Times (5 02 2002)Google Scholar.

155. For present purposes it is sufficient to observe that the new US military and political strategy of ‘preventive war’ and ‘anticipatory self defense’ has profound implications for the traditional international rules of jus ad bellum which, in turn, will affect the future evolution of jus in bello. See further Danchin, P., ‘Human Rights,’ in A Global Agenda: Issues Before the 56th General Assembly of the United Nations (US/UNA, Rowman & Littlefield Publishers 2002) pp. 1–33Google Scholar (discussing the new paradigm of terrorism and human rights in a post-September 11 world).

156. Ignatieff, M., ‘Nation-Building Lite’, New York Times Magazine (28 07 2002) at pp. 26, 28–29Google Scholar. Ignatieff further suggests (at p. 29) that the ‘winning strategy paired Special Forces teams and air power with local commanders and their militias. When victory came, America thought it had won the war, but the warlords in the Northern Alliance thought they had. Now they dominate the Kabul government and insist that they, rather than the Americans, should shape the peace.’

157. See e.g., Snyder, J., From Voting to Violence: Democratization and Nationalist Conflict (New York, W.W. Norton 2002)Google Scholar (arguing that because ethnic conflict is most likely to break the early stages of democratic transitions, outside forces should hold back from promoting democracy and favor instead the ‘gradual development of the rule of law, an impartial bureaucracy, civil rights, and a professional media, followed by the holding of free elections’).