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Which Law Applies to the Afghan Conflict?

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman  and
James Silk
W. Michael Reisman
Affiliation:
Yale Law School
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American Journal of International Law , Volume 82 , Issue 3 , July 1988 , pp. 459 - 486
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Copyright © American Society of International Law 1988

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References

1 By the time this article is published, it is possible that the Soviet Union will, at least, have begun to withdraw its troops from Afghanistan. But even should the Soviet Union have begun its withdrawal, important legal and humanitarian issues arising from the conflict will continue to present themselves to the international community. The particular question we address here will not be rendered moot for a number of reasons. First, a Soviet withdrawal would require at least several months to complete. If the Geneva Conventions apply to the conflict that has torn Afghanistan since December 1979, they will continue to apply as long as Soviet troops remain involved in hostilities there. Second, even if all Soviet involvement in fighting ceases, at least part of the Conventions will apply as long as a situation of occupation continues. Finally, the resolution of the question of what law applies to the Afghan conflict has implications for the application of humanitarian law to similar situations.

2 See, e.g., Amnesty International, Violations of Human Rights and Fundamental Freedoms in the Democratic Republic of Afghanistan (1979); Amnesty International, Afghanistan: Torture of Political Prisoners (1986); Amnesty International, 1980–1987 Amnesty International Report (chapter on Afghanistan) (annual); Helsinki Watch, Tears, Blood and Cries: Human Rights in Afghanistan Since the Invasion, 1979–1984 (1984); Helsinki Watch/Asia Watch, To Die in Afghanistan (1985); Helsinki Watch/Asia Watch, To Win the Children: Afghanistan’s Other War (1986); International Afghanistan-Hearing, Final Report (1984); Ermacora, Report on the situation of human rights in Afghanistan prepared in accordance with Commission on Human Rights resolution 1985/38, UN Doc. E/CN.4/1986/24; and Report of the Independent Counsel on International Human Rights on the Human Rights Situation in Afghanistan, 42 UN GAOR C.3 (Agenda Item 12), UN Doc. A/C.3/42/8 (1987).

3 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field [hereinafter First Convention], Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea [hereinafter Second Convention], Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War [hereinafter Third Convention], Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter Fourth Convention], Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287 [hereinafter Geneva Conventions].

4 Common Article 2 defines the applicability of the four Conventions. Common Article 3 sets forth the obligations of parties involved in noninternational conflicts. Id.

5 Id.

6 Common Article 1 states a general obligation: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” Id.

7 Id.

8 3 The Geneva Conventions of 12 August 1949. Commentary 22–23 (J. Pictet ed. 1952–60) (4 vols., one on each Convention) [hereinafter Pictet].

9 In this regard, it is consistent with the view that “[a]ny use of force which can be attributed to a State according to the rules of State responsibility will result in the applicability of the laws of war under international law.” Schindler, , The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, 163 Recueil des Cours 119, 131 (1979 II)Google Scholar.

10 4 Pictet, supra note 8, at 22.

11 Schindler, supra note 9, at 132.

12 4 Pictet, supra note 8, at 21. Pictet adds:

The application of the Convention to territories which are occupied at a later date, in virtue of an armistice or a capitulation, does not follow from [paragraph 2], but from paragraph 1. An armistice suspends hostilities and a capitulation ends them, but neither ends the state of war, and any occupation carried out in wartime is covered by paragraph 1. It is, for that matter, when a country is defeated that the need for international protection is most felt.

Id. at 22.

13 Geneva Conventions, supra note 3.

14 A relatively extreme interpretation in this regard may be found in Farer, , Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict,” 71 Colum. L. Rev. 37, 39–40 (1971)Google Scholar. Farer cites examples of the inferior position of noncombatants under Article 3. For example, captured participants may not be tortured, but Article 3, according to him, does not prevent them from being executed for “treason.” Also, if their punishment is limited to detention, the form of detention may, pace Farer, approach barbarity without manifestly violating established humanitarian law if the full protection of the third Convention does not apply. Without the protection of the Conventions, Farer says, civilians may be compelled by belligerents to serve in effect as slave labor. For discussion of other scholarly views on this issue, see infra note 17.

15 Article 8, common to all but the fourth Convention, provides:

The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. . . . The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers.

First, Second and Third Conventions, supra note 3. See also Third Convention, Art. 126 (mandating permission for delegates of the protecting powers and the ICRC to visit places where prisoners of war are held and to interview prisoners without restriction on the duration and frequency of such visits); and Fourth Convention, Art. 143 (mandating permission for delegates of the protecting powers and the ICRC to visit all places where protected persons are and to interview such persons without restriction on the duration and frequency of such visits).

16 Farer, supra note 14, at 39.

17 Schindler, supra note 9, at 147. Others have identified a variety of deficiencies in common Article 3. See, e.g., Cassese, , 4 Tentative Appraisal of the Old and the New Humanitarian Law of Armed Conflict, in The New Humanitarian Law of Armed Conflict 461, 492–93 (Cassese, A. ed. 1979)Google Scholar (Article 3 covers only nonparticipants and persons who have laid down their arms; it does not regulate combat or protect civilians against the effects of hostilities. There are gaps in Article 3’s humanitarian provisions. It does not define “noninternational armed conflict” or entrust to any international authority “the task of verifying whether or not a domestic disorder is in progress which should be deemed to fall under the purview of its provisions.” The application of its provisions remains largely at the discretion of the parties to the conflict); Baxter, , Ius in Bello Interno: The Present and Future Law, in Law and Civil War in the Modern World 518, 521–29 (Moore, J. N. ed. 1974)Google Scholar (It is difficult to make distinctions between “armed conflict not of an international character” and other forms of domestic violence that may not rise to the level required for application of common Article 3. Whether or not Article 3 binds insurgents has been controversial. Its terms are so general that they cannot serve as an adequate guide to the conduct of belligerents); Suter, K., An International Law of Guerrilla Warfare 17 (1984)Google Scholar (Article 3’s “lack of clear applicability to guerrilla warfare in general and guerrillas in particular” causes confusion); Draper, , Humanitarian Law and Internal Armed Conflicts, 13 Ga. J. Int’l & L. 253, 264 (1983)Google Scholar (The lack of “juridical precision” in the term “armed conflicts not of an international character” makes it difficult to apply Article 3).

18 1 Pictet, supra note 8, at 48.

19 Art. 1, paras. 3 and 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts [hereinafter Protocol I], opened for signature Dec. 12, 1977, International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949, at 3 (1977), 16 ILM 1391 (1977). Schindler concludes that “these provisions have small chances ever to be applied.” Schindler, supra note 9, at 144. He notes that the Protocol was really aimed at wars of liberation from European colonialism and that “alien occupation” has been interpreted to include only a few situations. Id. at 137–38. The Protocol can only come into effect if the authority representing the liberation effort issues a declaration invoking it and consenting to comply with applicable international law. Protocol I, supra. Art. 96. Even if the Afghan resistance were likely to issue such a declaration, it is doubtful whether it would be valid. The language of the Protocol suggests that only an authority with a certain degree of organization and discipline may be able to issue a declaration. Thus, a declaration would probably not be valid for a resistance that is actually composed of many liberation movements. See Schindler, supra note 9, at 140, 143. The fact that the various mujahidin groups control large amounts of territory and have coalesced with varying success may not meet the standard of Protocol I. Finally, during most of the conflict, the Soviet Union, its allies and the Afghan regime have viewed the opposition as composed of counterrevolutionaries seeking to undo the already successful national liberation that put the regime in power.

20 Art. 1, para. 1, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–International Armed Conflicts [hereinafter Protocol II], opened for signature Dec. 12, 1977, International Committee of the Red Cross, supra note 19, at 89, 16 ILM 1442 (1977).

21 Id., Art. 18(2).

22 According to Cassese, the body of the law of war existing before the drafting of Protocols I and II, including the Geneva Conventions, has been “worn out by the ‘new reality’ of international and civil wars in the last few years. The new features of wars are well known.” His list is extensive:

the multiplication of struggles of national liberation, which are still formally treated as “internal armed conflicts” . . . while the international community, through the pronouncements of the U.N. General Assembly, has for some time come to consider them international conflicts; the spread of previously unknown or little–used methods of warfare such as guerrilla warfare . . . and electronic or ecological warfare as well as the recourse to increasingly cruel and sophisticated weapons . . . ; the staggering increase in civil wars, often fomented from abroad or manipulated by great Powers; the ever–greater risks to which the civilian population . . . is exposed, both in international and in civil wars; the inefficiency of the existing machinery for supervising the implementation of the laws of warfare; and finally, the failure of States to bring to trial all those who so often violate the laws of war in the course of armed conflicts.

Cassese, supra note 17, at 461–62.

Schindler has also described the problems in distinguishing between international and noninternational armed conflicts since 1949. The conception, under the Geneva Conventions, of wars of national liberation as noninternational has gradually changed since 1960. With the General Assembly’s recognition of the right of self-determination for colonial peoples, the claim was put forward that wars of national liberation are to be considered international conflicts. Also, according to Schindler, there has been a large increase in noninternational armed conflicts “as a result of the growing number of States and of the instability of many regimes. Non-international conflicts are mostly carried out with greater cruelty than international ones.” The “rudimentary rules” of common Article 3 have been inadequate to protect people in these conflicts. Foreign interventions in civil wars, which, Schindler notes, have increased, “show that non-international and international conflicts have increasingly mingled.” Schindler, supra note 9, at 126-27.

See also Baxter, supra note 17, at 521–23; Draper, supra note 17, at 253–54.

23 Schindler, supra note 9, at 150.

24 Gasser, , Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon, 33 Am. U.L. Rev. 145, 146 (1983)Google Scholar.

25 Id.

26 See Schindler, supra note 9, at 150; and Gasser, supra note 24, at 147. For purposes of this discussion, the point is moot if Protocol II is not customary law, for Afghanistan is not party to the instrument.

27 Schindler opines that only the rules for noninternational conflicts would apply because insurgents are not subjects of international law. Schindler, supra note 9, at 150. Schindler, in other work, has suggested the possibility of a different view. See id. n.35; and Schindler, , Die Anwendung der Genfer Rotkreuzabkommen seit 1949, 22 Annuaire Suisse de Droit International 75, 95 (1965)Google Scholar. See also Bindschedler-Robert, D., A Reconsideration of the Law of Armed Conflicts 52–53 (1971)Google Scholar; Wilhelm, , Problèmes relatifs à la protection de la personne humaine par le droit international dans les conflits armés ne présentant pas un caractère international, 137 Recueil des Cours 311, 356–59 (1972 III)Google Scholar; Bothe, , Völkerrechtliche Aspekte des Angola-Konflikts, 37 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 572, 590–92 (1977)Google Scholar. The circularity here is lamentably characteristic of law. The relationship is not international because insurgents are allegedly not international subjects. They are not international subjects because the war is not international. Of course, the entire body of contemporary human rights law is premised on the susceptibility to international law of the relation between a government and its nationals.

On a related issue, see the excellent study by Louise Doswald-Beck on the lawfulness of military intervention at the invitation of the government of the state into which troops are sent. Doswald-Beck, , The Legal Validity of Military Intervention by Invitation of the Government, 56 Brit. Y.B. Int’l L. 189 (1985)Google Scholar. She examines situations where the troops of one state enter another state to support a government that has lost or is in danger of losing control over the country. In particular, she analyzes the situation in Afghanistan, the reliance of the USSR on outside interference as its justification for intervening and other states’ condemnation of the intervention as interference in the internal affairs of another country. Id. at 230–34.

28 Dupree, L., Afghanistan 451 (2d printing 1978)Google Scholar. For the history of Afghanistan up to the Saur Revolution, see generally id. at 430–666; Collins, J., The Soviet Invasion 8–45 (1986)Google Scholar; Hyman, A., Afghanistan Under Soviet Domination, 1964–83, at 41–71 (1984)Google Scholar; Bradsher, H., Afghanistan and the Soviet Union 13–73 (1985)Google Scholar.

29 L. Dupree, supra note 28, at 493–94.

30 A. Hyman, supra note 28, at 28–30.

31 See generally id. at 54–60; L. Dupree, supra note 28, at 559–658.

32 A. Hyman, supra note 28, at 66–68.

33 See id. at 61–71.

34 Arnold, A., Afghanistan: The Soviet Invasion in Perspective 62–66 (1985)Google Scholar. Collins believes that Daoud’s pursuit of a nonaligned foreign policy perhaps annoyed the Soviet Union and that the Soviets began in late 1976 to prepare for an eventual post-Daoud Afghanistan, but that “there is no substantive evidence that they began to plot his ouster.” J. Collins, supra note 28, at 38–41.

35 A. Hyman, supra note 28, at 75–78. Collins evaluates the evidence and concludes that “there is no substantive proof that the Soviets planned, directed, or participated in the coup.” He acknowledges that Soviet urging was important in the reunification of Khalq and Parcham. J. Collins, supra note 28, at 48–52.

36 Hyman suggests that claims of Soviet management of the coup were inconsistent with the fighting between Khalq and Parcham and the widespread purges, which were of no benefit to the Soviet Union. Also, it was assumed that the Soviets preferred the Parcham faction to Khalq, which was considered more independently nationalist. Thus, the ascendancy of Khalq calls into question Soviet control of the Government in Kabul. A. Hyman, supra note 28, at 81–85.

37 See id. at 85–92; J. Collins, supra note 28, at 65.

38 That only Soviet citizens were killed, while other Eastern Europeans were spared, is for Hyman evidence of the strong anti–Soviet feelings behind the uprising. “The growing dependence of the Taraki regime on Soviet advisers, arms and finances, when combined with the openly avowed sympathies of Khalq leaders for the ‘Great Northern Neighbor’ (as the Soviet Union Vas styled) had resulted in popular suspicion that Russian communists now ruled Afghanistan.” A. Hyman, supra note 28, at 99–101. See also H. Bradsher, supra note 28, at 101–02.

39 A. Hyman, supra note 28, at 101–05.

40 According to Hyman, there were about 3,000 Soviet advisers working in the ministries, on civil projects and with the armed forces at the end of Daoud’s regime. He estimates that about one–third of the estimated 4,500 Soviet advisers in Afghanistan by April 1979 were assigned to the armed forces. Id. at 105.

41 Hyman cites evidence that Soviet advisers were, at least, involved in brutal acts against real or imagined opponents of the regime in prisons and interrogation centers. Id. at 105–08.

42 Estimates of the number of the dead vary from 640, J. Collins, supra note 28, at 59–60, to 1, 170, A. Hyman, supra note 28, at 126.

43 A. Hyman, supra note 28, at 148.

44 Id. at 147.

45 See id. at 149–52; J. Collins, supra note 28, at 65.

46 A. Hyman, supra note 28, at 153–55. A correspondent in Karachi reported early in October that Russian exchanges with Amin indicated “grave doubts about Amin being able to stabilize the Afghan situation.” The account went on, “According to informants with connections among the ruling Khalq party the Russians [a]re reported to have then given Amin 30 days to establish his authority throughout the land or make way for the Afghan extremists of the Parchamite party salted away in Eastern Europe, notably Karmal and Anita Ratziban.” Daily Telegraph (London), Oct. 8, 1979, at 5, col. 3. A week later, an article with a Kabul dateline reported, “Diplomatic circles in Kabul were given the impression that Mr. Amin would either establish his authority within that time [30 days] or be replaced by the extremist Russian-backed Parchamites.” Id., Oct. 15, 1979, at 6, col. 6. Tensions between Amin and the Soviet Union were again reported early in November. Id., Nov. 5, 1979, at 5, col. 1.

47 A. Hyman, supra note 28, at 155–57. Early in November, the Daily Telegraph of London reported that 20 Soviet battalions had been rushed into Afghanistan to protect Afghan bases from Muslim rebels. The report suggested that the USSR had concluded that it was beyond Amin’s capability to control the Muslim resistance. According to the same report, the Afghan army, once some 100,000 strong, was down to less than half that number, many troops having joined the Muslim rebels. Daily Telegraph (London), Nov. 3, 1979, at 6, col. 3.

48 H. Bradsher, supra note 28, at 123. Diplomatic sources, in mid–November, reported an increased infusion of Soviet arms and indicated that while the number of Soviet advisers had remained around 3,000, there had been a significant qualitative change. The Soviet Union had top political and military officials in advisory positions. One source said that there was evidence of Soviet organization and command of the military and that Russians were piloting aircraft, including helicopter gunships, and operating tanks. The Times (London), Nov. 17, 1979, at 7, col. 5. Estimates of the number of Soviet advisers in Afghanistan varied throughout this period. At the end of October, intelligence reports were cited estimating that there were 3,000 Soviet military specialists and 3,500 civilian advisers in Afghanistan. The same report noted that the Soviet Union had built a military complex in Afghanistan at Farah, some 65 miles from Iran, and enlarged an air base at Shindand. According to the report, the USSR had committed large sums to boosting the Afghan economy, had signed trade contracts worth £100 million and planned to supply the internal security forces with £3.3 million of equipment. Daily Telegraph (London), Oct. 31, 1979, at 4, col. 3. According to a Times article from Delhi, Amin had asked for outside help so he could cut his dependence on the Soviet Union. Pakistani President Zia ul-Haq told the reporter that Amin had approached his Government early in December with “frantic messages for an immediate meeting.” Diplomatic sources in Kabul said that Amin had also approached the United States. The Times (London), Feb. 14, 1980, at 7, col. 6.

49 A. Hyman, supra note 28, at 157–58. By mid–December, Russian troops were said by Western sources to be defending key positions around Kabul. The Times (London), Dec. 19, 1979, at 7, col. 4.

50 H. Bradsher, supra note 28, at 124–25.

51 Id. at 178–79. U.S. government officials, several days after the coup, said that Amin had been too independent and had rejected the introduction of Soviet troops to fight the Afghan rebels. The officials stated that the United States first considered that an invasion was possible after the increase in the Soviet military presence on Dec. 8 and 9; a “special brigade” arrived at the Bagram air base, then moved to Salang Pass, the route of invasion from the Soviet Union, and secured it from rebel control. N.Y. Times, Jan. 2, 1980, at A14, col. 4.

52 A. Hyman, supra note 28, at 159; H. Bradsher, supra note 28, at 179. The massive airlift of Soviet troops into Kabul was reported in the West by Dec. 27. The U.S. Department of State said that the USSR had concentrated five divisions along the Afghan border and estimated that between 4,000 and 5,000 troops were in Afghanistan. People leaving from the Kabul airport on Dec. 26 reported seeing at least 12 Soviet transport planes land and unload armored vehicles and combat troops. The Times (London), Dec. 27, 1979, at 1, col. 3.

53 A. Hyman, supra note 28, at 159.

54 H. Bradsher, supra note 28, at 179–80; A. Arnold, supra note 34, at 93–95. The Sunday Times of London gave a similar account. According to an eyewitness report and a “highly-placed Afghan now in New Delhi,” Amin was deceived during the final stages of the coup. The Soviets had advised him to move from the presidential palace downtown to the fortified Darulaman Palace 2 miles out to be “closer to ‘protection’ of the Soviet embassy.” From there, Amin’s contact with the Afghan army was tenuous. Then, Afghan officers guarding the radio station with 20 tanks were told by Russians that these tanks were being replaced with new Soviet models, but that since fuel was scarce, their diesel had to be transferred. Once the tanks were immobilized, the Afghans’ radio transmitter was seized, and an attack launched on Darulaman Palace. Sunday Times (London), Jan. 6, 1980, at 17, col. 1.

55 H. Bradsher, supra note 28, at 180.

56 Id.; A. Hyman, supra note 28, at 165; A. Arnold, supra note 34, at 78; Girardet, E., Afghanistan: The Soviet War 15 (1985)Google Scholar. The first press reports of the coup relied on U.S. State Department sources. They cited eyewitness accounts of Soviet troops leading the assault on Kabul’s radio station, fighting gun battles in armored personnel carriers in Kabul, fighting near the presidential palace and taking Afghan prisoners. Amin was reported executed on the 27th. Radio Kabul announced the sentence and execution of Amin and the election of Karmal as the new President and General Secretary of the People’s Democratic Party. But the news account said that Tashkent Radio in the USSR, monitored by Reuters in Tehran, had broadcast a speech by Karmal. In another Radio Kabul broadcast monitored in Tehran, the Afghan Revolutionary Council was reported to have announced its support for Karmal, , Afghanistan President Executed after Soviet–backed Coup, The Times (London), Dec. 28, 1979, at 1 Google Scholar, col. 7. See also Afghan President Is Ousted and Executed in Kabul Coup, Reportedly with Soviet Help—An Exile Takes Over, N.Y. Times, Dec. 28, 1979, at Al, col. 6. No conclusions were drawn at that time about the whereabouts of Karmal, but the fact that his speech was only monitored on Radio Tashkent provided an early suggestion that something was amiss. A New York Times report from Islamabad on Dec. 29 said, “Diplomats here monitoring broadcasts from Radio Kabul and receiving information from embassies and other channels, were puzzled that Mr. Karmal had made no public appearances, even on television, since his takeover.” The report then stated that the broadcast of Karmal’s speech by Radio Tashkent several hours before it was first broadcast in Kabul suggested that it had been “taped, and rais[ed] the question of the whereabouts of Mr. Karmal, who is thought to have been in exile in Eastern Europe, under Soviet protection, for at least a year.” Id., Dec. 30, 1979, at A10, col. 3. On Jan. 1, the State Department said there was evidence of Soviet participation in the coup, including reliable indications that the initial radio reports were prerecorded tapes broadcast from the USSR. When those reports were being broadcast, the Department said, Radio Kabul was transmitting its normal programs. U.S. officials believed the reports were actually broadcast from the Soviet border city of Termez. The Times (London), Jan. 2, 1980, at 1, col. 1.

57 A. Hyman, supra note 28, at 169. The Times of London reported, however, that Soviet forces killed Amin: he had died in a small building near Darulaman Palace when six armored personnel carriers directed a “torrent of machine gun bullets” at the President’s offices. “Popular—though not government—belief has it that Soviet troops fired the fatal rounds at the politically bankrupt dictator . . . .” The Times (London), Jan. 18, 1980, at 14, col. 1. According to another report, “Afghan sources confirm that. . . Hafizullah Amin was killed in cold blood by the Russians on the night of December 27.” Sunday Times (London), Jan. 20, 1980, at 1, col. 3. However, the Afghan Interior Minister, speaking at a news conference in January, made a statement that contradicted earlier announcements in both Kabul and Moscow that Amin had been killed shortly after the coup. “It appeared to fix Dec. 29 as the date when Mr. Amin was put to death.” N.Y. Times, Jan. 22, 1980, at A10, col. 3.

58 H. Bradsher, supra note 28, at 181. Moscow radio announced the coup within hours, carrying extracts of Karmal’s statement. In its first report, however, the Times of London said, “In spite of the unusually speedy announcement there is no evidence that the Soviet Union engineered the reported coup against President Amin, but it can only be pleased with his overthrow.” The Times (London), Dec. 28, 1979, at 4, col. 3. The first mention of Karmal’s speech in the New York Times came in an article that said the text of a speech by Karmal broadcast over Radio Kabul had been distributed in English, by TASS, the Soviet press agency. N.Y. Times, Dec. 28, 1979, at A13, col. 3. Bradsher’s account seems to differ from the reports in the Western press on Dec. 28 that announcements by Radio Kabul of Amin’s downfall and Karmal’s election were monitored on the 27th. See supra note 56. The USSR justified its airlift of troops into Afghanistan by saying that it had responded to an urgent request for help from the Afghan Government. TASS said that, on the basis of the Treaty of Friendship, the new Government had “approached the Soviet Union with an insistent request for urgent political, moral and economic aid, including military aid.” But in later versions of the statement, TASS added a phrase to this description of the request: “which the Government of the Democratic Republic of Afghanistan repeatedly requested from the Government of the Soviet Union previously.” This made the airlift seem less related to the coup. The Times (London), Dec. 29, 1979, at 1, col. 7. The TASS statements that the Afghan Government had requested aid in a Dec. 28 broadcast did not answer the questions already being asked about when and by what authorities the request was made since the Karmal Government came to power well after the airlift of Soviet troops began. N.Y. Times, Dec. 29, 1979, at A6, col. 6. In January, a Hungarian press agency dispatch from Kabul cited Karmal as having said that the Afghan Revolutionary Council had asked the USSR for help even before Amin was overthrown, but that Moscow had acted only when help was urgently needed. N.Y. Times, Jan. 11, 1980, at A6, col. 2.

In February, Karmal was quoted as having said, in an interview with the “pro–Moscow Indian newspaper Patriot,” that Soviet troops had intervened 10 days before the coup. This was said to be the first admission that Soviet forces were in the country when Amin was overthrown. Karmal said that the PDPA had forced Amin to call for Soviet troops during the second week of December. Id., Feb. 8, 1980, at A10, col. 1.

59 H. Bradsher, supra note 28, at 182. A Soviet statement in Pravda acknowledged that Soviet troops went to Afghanistan to help repel outside aggression, but denied that they had played any part in internal Afghan events. N.Y. Times, Dec. 31, 1979, at A1, col. 4. U.S. administration officials later said that elements of the Soviet airborne division that had landed at the Kabul airport on the 27th moved quickly across the city in armored vehicles and, after a brief, but violent, clash, wiped out the Afghan guard at Darulaman Palace, and captured and shot President Amin. Id., supra note 51.

60 Bradsher cites reports that Karmal arrived in a Soviet military plane at about 2:00 A.M. Dec. 28, which would have meant that he left Soviet Central Asia about the time Amin was killed. H. Bradsher, supra note 28, at 186. Karmal later claimed to have secretly entered Afghanistan before the invasion and organized supporters within PDPA against Amin. According to Bradsher, Karmal gave several different versions of the time of this return—between August and mid–November and even later. Id. at 174. Karmal claimed that by the second week of December, an overwhelming majority of the PDPA Central Committee and the Revolutionary Council had successfully pressured Amin to request Soviet military assistance. Thus, Soviet troops entered Afghanistan beginning on Dec. 17 at the request of the Government. In Karmal’s version, a majority of the Central Committee and Revolutionary Council had tried Amin, decided to execute him and elected Karmal to power before Dec. 27. Bradsher points out the inconsistencies in this and Soviet accounts of the request for troops and the election of Karmal. Among these inconsistencies was a Radio Kabul report on Dec. 28 that the PDPA Politburo had met and elected Karmal General Secretary and that the Revolutionary Council had elected him President that day. There was no mention, until much later, of Karmal’s earlier secret election to the posts. Id. at 176. On Dec. 28, Radio Kabul said that the USSR had “acted in response to an official request from Afghanistan.” The report on this broadcast pointed out that the Soviet buildup of troops preceded the new Afghan Government. It also said that Karmal had reportedly returned to Kabul during the week of the coup. N.Y. Times, Dec. 29, 1979, at A l , col. 3. At least one report at the time of the coup said that Karmal was believed to have returned to Kabul from Soviet Central Asia with other Afghan exiles among the Soviet troops airlifted into Afghanistan in the days before the action. The Times (London), Dec. 29, 1979, at 4, col. 1. The New York Times said that while President Karmal had not been seen in public by Dec. 31, he had been reliably reported to have met in private with some government supporters and at least one Eastern European ambassador. N.Y. Times, Jan. 1, 1980, at A1, col. 2. U.S. officials stated that Karmal was flown to Kabul on Sunday, Dec. 30. Id., supra note 51. The Times of London reported that Karmal made his first public appearance on Jan. 4. The Times (London), Jan. 5, 1980, at 4, col. 1. On Jan. 10, Soviet officials presented Karmal to foreign reporters. When asked why the Revolutionary Council, presided over by President Amin, would have called in Soviet troops if Amin was an American agent as Karmal had claimed, Karmal responded that the Revolutionary Council that requested Soviet help was the one over which he presided. N.Y. Times, Jan. 12, 1980, at A5, col. l.(The article contended that Karmal was flown into Afghanistan by the Russians the day of the coup.)

61 The Times (London), Dec. 31, 1979, at 6, col. 5. President Carter received intelligence reports that an additional 15,000 to 20,000 Soviet troops, including an airborne division, had crossed into Afghanistan around Dec. 29, raising the total number of Soviet military personnel there to between 25,000 and 30,000. N.Y. Times, Dec. 30, 1979, at A1, col. 6.

62 The majority of some 160 combat aircraft in the Afghan armed forces was reportedly flown by Soviet pilots. There were also reports that at least two squadrons of fighters had been flown in to help combat the Afghan rebels. And all the M–24 helicopters being used against the rebels were flown by Soviet crews. All of the command, control and maintenance functions were reported to be in Soviet hands. N.Y. Times, Dec. 28, 1979, at A1, col. 5.

63 A Western European diplomatic source said that Afghan functionaries at the Foreign Ministry were showing up for work, but not attempting to do anything. Other sources said the Ministries of the Interior and of Education were controlled by Russians. Soviet tanks were guarding Radio Kabul, and Soviet sentries were at the post and telegraph office and the Interior Ministry. The Times (London), Jan. 3, 1980, at 1, col. 7. Soviet troops were reported to have spread out all over Afghanistan, setting up encampments that “reportedly have an air of permanence. The Soviet forces are believed generally to be in control.” Soviet forces had reportedly taken control of all civilian airports and the air bases at Kandahar and Shindand. N.Y. Times, Jan. 8, 1980, at Al, col. 3. A U.S. Defense Department analysis, though, said that the depleted Afghan army was doing most of the fighting, with Soviet troops largely in a supporting role; and that the USSR appeared to be giving top priority to rebuilding the Afghan army which had been reduced from about 100,000 troops a year earlier to some 25,000. This account differed from the State Department’s and from some press reports from the region, which indicated that Soviet forces were bearing the brunt of the combat. Id., Jan. 9, 1980, at A5, col.1.

64 According to the Sunday Times, a senior Afghan government official said that a Soviet adviser had told him not to come to the office except to get paid and that the same thing was happening to “hundreds of my colleagues.” An estimated 4,000 civilian advisers had been flown into Afghanistan since the Soviet troops had entered. The arriving advisers were not subjected to passport or customs checks. Each of Karmal’s 19 ministers was reported to have at least two Russian advisers attached and ever present. The report said, “The Russians have taken over the policy–making and executive functions in most departments, though these are still notionally exercised by Afghan civil servants.” The state security bureau KAM was reportedly dismantled and rebuilt around 640 Soviet intelligence officers. The report said that the Soviets were using the Afghan army as “cannon fodder” against the Muslim rebels. Sunday Times (London), supra note 57. See also N.Y. Times, Jan. 23, 1980, at A6, col. 1 (analysts said Soviet administrators, including many KGB officers, were directing the “reorganization of the government bureaucracy”). A report from Rawalpindi, Pakistan, said, “Journalists leaving Afghanistan, other travelers and diplomats here reading cablegrams from Kabul all say the Karmal Government shows no signs of actually functioning.” Karmal was reported at a summer palace near Kabul under Soviet guard. Statements, relayed through Moscow, were issued on his behalf. N.Y. Times, Jan. 27, 1980, §1, at 12, col. 1. Afghans who managed to slip into Pakistan at the end of January said, “Russians give orders and Afghans follow them.” At some government buildings, Afghans reportedly entered by one door, where they were searched, while Russians passed freely in and out through another. Russians were also said to write the news scripts for radio and television and to monitor Afghan broadcasts to be sure they were read correctly. N.Y. Times, Feb. 2, 1980, at A5, col. 1.

65 Diplomats in Kabul estimated Soviet troop strength at 80,000 to 85,000, made up of an advisory group in command of Afghan army units, helicopter and jet fighter pilots, an airborne . division and five motorized rifle divisions. At the same time, the Afghan army was said to be disintegrating, its numbers now estimated by Western military analysts as less than 40,000. N.Y. Times, Jan. 17, 1980, at A12, col.1. Another report said that intelligence sources discounted press reports of between five and seven full Soviet divisions in Afghanistan and believed the total number of Soviet troops in Afghanistan to be about 50,000, with others mobilized just inside the Soviet Union. The Times (London), Jan. 18, 1980, at 14, col. 1. The U.S. Defense Department revised its estimate of Soviet troop strength down to 70,000 in February and estimated that another 30,000 were mobilized on the Soviet side of the border. The Times (London), Feb. 22, 1980, at 7, col. 3.

66 “The decree imposing martial law on Friday in effect gave government authority to the Soviet commander in Kabul, and reports yesterday said he appeared to have taken over.” N.Y. Times, Feb. 27, 1980, at A1, col. 3.

66 J. Collins, supra note 28, at 79; Staff of Senate Comm. On Foreign Relations, 98th Cong., 2d Sess., Hidden War: The Struggle for Afghanistan 12 (Comm. Print 1984). The U.S. State Department said there were 85,000 Soviet troops in Afghanistan, another 35,000 along the border in the Soviet Union. The Times (London), Apr. 19, 1980, at 5, col. 8.

68 The reporter, Chhotu Karadia, who had interviewed Karmal, said that, except for a dozen sentries at the main gate, the security of the People’s House was in Russian hands. He said that Karmal’s bodyguard, doctor and six chief advisers were Russians. He also cited such direct measures of Soviet control over the Afghan population as the replacement of English as the second language in schools with Russian, and of local television programs with Russian ones. Sunday Times (London), Apr. 20, 1980, at 1, col. 4.

69 An increase was also noted in the number of dependents of Soviet military personnel brought into Afghanistan, as well as in the number of Soviet engineers engaged in large improvement and construction projects at military bases. The Times (London), May 29, 1980, at 1, col. 1. At the end of June, the Times defense correspondent estimated that the Afghan army had between 40,000 and 50,000 troops. Id., June 27, 1980, at 8, col. 1. In September, their number was estimated to be 35,000, according to a diplomatic source in Delhi. They were described as a demoralized and unreliable force of questionable loyalty, whose capacity and morale were continuing to deteriorate. While they were poorly equipped, the Russian troops were supplied with new equipment and vehicles. Although Soviet troop strength was commonly estimated at more than 100,000, this source said it was between 80,000 and 85,000. However, the number of civilian advisers had increased and there were more than 1,000 civilian families in Kabul. According to this source, Soviet advisers held key positions in all the ministries and controlled telecommunications, and Soviet editors controlled Radio Kabul and the Farsi and English daily newspapers. Id., Sept. 11, 1980, at 7, col. 1.

70 According to a U.S. government analysis, Soviet officials occupied the senior positions in every Afghan ministry except the Foreign Ministry where they held the post of deputy director. All decisions were Soviet. The most Soviet-dominated ministry was said to be the Ministry of Information and Culture; virtually all information releases were produced by Soviet staff. A Soviet adviser assigned to the education system had begun preparing textbooks immediately after the December revolution. The Times (London), May 30, 1980, at 7, col. 7. Also, “a virtual blizzard of economic, trade, and technical assistance agreements” was said to be tying the Afghan economy tightly to that of the USSR and the Eastern European countries. “Afghan judges, lawyers, teachers, medical workers, scientists, and even truck drivers are being sent to the Soviet Union to absorb—and presumably bring back—Soviet systems, methods, and skills.” Christian Sci. Monitor, Mar. 4, 1981, at 3, col. 1.

71 H. Bradsher, supra note 28, at 282–83.

72 A. Hyman, supra note 28, at 198–99, 213.

73 H. Bradsher, supra note 28, at 282–83. The Area Handbook Series report on Afghanistan says that estimates of Soviet troop strength in the mid–1980s ranged from 105,000 to 150,000, but were usually around 118,000. D. Seekins, Government and Politics, in Nyrop, R. & Seekins, D., Afghanistan, A Country Study 209, 250 Google Scholar (Area Handbook Studies No. DA Pam 550–65, 1986). According to Hyman, Soviet forces in 1983 included many squadrons of warplanes and more than 400 helicopter gunships. Soviet military and civilian advisers conducted the war and the administration, all of which was financed by the Soviet Union. “So heavy was the Karmal government’s dependence on the USSR that by any objective standards its very independence could be questioned.” A. Hyman, supra note 28, at 213. Hyman also notes the extent of Soviet economic assistance to Afghanistan, particularly citing projects which “have had the effect of integrating the Afghan economy into the Soviet Central Asian system.”

Id. at 207.

74 Russia amputates an Afghan finger, Economist, Aug. 9, 1980, at 32, col. 1.

75 Christian Sci. Monitor, Nov. 6, 1980, at 2, col. 2; N.Y. Times, Nov. 16, 1980, at A4, col. 4.

76 While reports of the Soviet occupation of the Wakhan corridor had been coming from Pakistan since 1980, diplomatic sources said reliable confirmation had been received only more recently. Christian Sci. Monitor, supra note 70.

77 There were reports that the Soviets had been building underground bunkers and permanent barracks, improving an east-west road to China and widening a north-south road leading to a pass on the Pakistan border. Id.

78 Fingerwork, Economist (U.S. ed.), July 4, 1981, at 33, col. 2. This treaty has apparently not yet been submitted to the United Nations for registration and publication in the UN Treaty Series.

79 N.Y. Times, July 3, 1982, at A2, col. 3. Western intelligence analysts also reported such a population exchange. Id., Dec. 26, 1983, at A8, col. 3.

80 “Intelligence experts said this strip, called the Wakhan corridor, had in effect been annexed by the Soviet Union.” Id., Dec. 8, 1982, at A5, col. 1. After discussing the tenacious resistance the Soviet Union was encountering throughout Afghanistan, the Washington Post said, “An exception is the Wakhan corridor and Pamir region—the sparsely populated northeastern panhandle that stretches to the Chinese border—which the Soviets have virtually annexed, according to diplomats and correspondents who have recently visited the area.” Wash. Post, Oct. 21, 1983, at A1, col. 2, A14, col. 1.

81 Gasser, supra note 24, at 150.

82 1980 ICRC Ann. Rep. 47.

83 Id. at 44–45.

84 Id. at 45.

85 Id.

86 Id., and following ICRC Ann. Reps.

87 1981 ICRC Ann. Rep. 37.

88 1986 ICRC Ann. Rep. 49–50.

89 ICRC Bull., No. 142, November 1987.

90 Gasser, supra note 24, at 151. Gasser points out that his article does not analyze what happens

when a new government is installed after the arrival of a foreign power. Suffice it to state that the government currently established in Kabul is the only government claiming to represent the country—there is no government in exile—and that the international community has recognized it de facto: it is represented in the United Nations.

Id. at 151–52 n.15.

91 Id. at 152.

92 Id.

93 Id. In our view, a conclusive characterization of the nature of the conflict and the law that applies is legally sound and consistent with the policy of contemporary international law. Specialized institutions with continuing responsibilities may sometimes find cogent reasons not to reach a conclusion on such a matter even when the facts warrant it, believing that the purposes of humanitarian law will better be served in some cases by a certain unclarity. For a particularly sensitive and candid examination of the issue, see id. at 157–59.

94 Ermacora, supra note 2, at 42–43.

95 Id. at 47 (emphasis added).

96 Id. at 47–48.

97 See section III supra.

98 Such scenarios are further complicated when the “new” government is generally deemed to be competent to perform many international and intergovernmental functions, including, for example, holding a seat in organizations and maintaining embassies abroad. This kind of recognition, which is driven by the trend to recognize on de facto grounds, complicates further the status of insurgents under humanitarian law. We cannot consider these issues within the confines of this article. Their intractability is symptomatic of the unclarity of this part of international humanitarian law.

99 Pictet makes it very clear that the transition from invasion to occupation has no effect on the application of the Conventions. They apply throughout. He says, “There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation.” 4 Pictet, supra note 8, at 60. Pictet’s discussion of this point is in regard to the Fourth Convention, supra note 3, Article 6, and the relations between the occupying power and civilians. Similar reasons, however, call for the continuity of the application of the plenary Conventions through the transition from invasion to occupation.

100 Id. at 21.

101 See supra text accompanying note 7.

102 Id.

103 See supra notes 10–12 and accompanying text.

104 See section IV supra.

105 Roberts, , What is a Military Occupation?, 55 Brit. Y.B. Int’l. L. 249, 299 (1984)Google Scholar.

106 Id. at 302.

107 Roberts writes:

Take, for example, a deeply divided and weak country, facing civil war. It has an unpopular government with a clear external ideological orientation, which invites in a sympathetic superpower ally. That ally then largely dominates indigenous political developments, and there are even allegations that it had complicity in the assassination of the embarrassingly unpopular head of the government which had invited it in. It also gets deeply involved in counter–insurgency operations against the regime’s opponents. This is a rough approximation of the situation in Afghanistan since the Soviet intervention of December 1979.

Id. at 278.

108 Id. Roberts identifies

some markers which may help to indicate the existence of an occupation, or may suggest the need for the law on occupations to be applied. These include: (i) there is a military force whose presence in a territory is not sanctioned or regulated by a valid agreement, or whose activities there involve an extensive range of contacts with the host society not adequately covered by the original agreement under which it intervened; (ii) the military force has either displaced the territory’s ordinary system of public order and government, replacing it with its own command structure, or else has shown the clear physical ability to displace it; (iii) there is a difference of nationality and interest between the inhabitants on the one hand and the forces intervening and exercising power over them on the other, with the former not owing allegiance to the latter; (iv) within an overall framework of a breach of important parts of the national or international legal order, administration and the life of society have to continue on some legal basis, and there is a practical need for an emergency set of rules to reduce the dangers which can result from clashes between the military force and the inhabitants.

Id. at 300–01. The situation in Afghanistan is marked by each of these conditions.

109 Id. at 304.

110 1 Pictet, supra note 8, at 30.