The law of war and the prison revolt

At least 150 people died in the prison revolt

By Adam Roberts, Montague Burton Professor of International Relations at Oxford University

The killing of large numbers of Taleban prisoners at Qala-e- Jhangi fort near Mazar-e-Sharif raises two questions regarding the laws of war (also called international humanitarian law).

Firstly, were the killings a violation of the law? Secondly, have the overall arrangements for handling prisoners conformed with that law?

The fort was the scene of three days of fighting

The war in Afghanistan is legally complex. Like many wars since 1945, it is an internationalised civil war.

It has elements of an international war (to which the main body of the laws of war applies) and elements of a civil war (in respect of which there are fewer agreed international rules).

However, in either case those who lay down their arms must be treated humanely. This is one of the most basic principles of the law.

Long before the direct US military involvement in Afghanistan began on 7 October, there were authoritative pronouncements (for example, in UN Security Council Resolution 1193 of 28 August 1998) calling on the parties to the conflict in Afghanistan to comply with their obligations under international humanitarian law.

Dangerous prisoners

The principle of humane treatment of those who lay down their arms is hard to apply to the killings.

Many of those held in the fort were foreign fighters who by all accounts were fanatical and dangerous to their captors.

The Red Cross are tasked with removing bodies

Probably not all those being held had laid down their arms by the time they entered the fort: reports suggest that some had kept concealed weapons.

Then, when the revolt began on 25 November, other arms were seized by the prisoners, and the situation was one of open warfare. Many Northern Alliance prisoners, as well as one CIA officer, were killed by the rebelling prisoners.

Many critically important facts, including the chain of events that led to the rebellion, are not yet known with certainty, and it is wrong to blame any individuals at this stage.

Overall, it is uncertain whether those held in the fort had been, or remained, prisoners-of-war in the sense of members of armed forces who have laid down their arms.

Nonetheless, the manner of the rebellion's suppression, like certain other reported killings following the Northern Alliance conquests, is legally and morally problematic.

In international warfare it has long been illegal to declare that no quarter shall be given - ie, to order that there will be no survivors.

There have been some reports indicating an intent to kill all the prisoners.

Outside involvement

It is not yet clear that all the prisoners were in revolt, nor whether all presented such a danger to their captors that they had to be killed.

There have also been reports that some of those killed had already been incapacitated, for example having had their hands tied.

General Dostum has denied prisoners were tied

It is the overall arrangements for the prisoners that raise the gravest questions about violations of the 1949 Geneva Convention on prisoners-of-war.

The immediate responsibility is clear: at the fort, the Northern Alliance troops were responsible for the prisoners.

However, during the rebellion small numbers of US and UK forces were also reported to be present. The US has particular responsibilities because of its major role in the war, and in the bombing of the fort after the rebellion had begun.

There does not appear to have been sufficient advance preparation by any of the parties for the surrender, disarming and subsequent incarceration of Taleban prisoners; nor enough insistence that the local forces must adhere to international standards in these exceptionally difficult circumstances.

Against this background, earlier statements (made on 19 November) by US Defence Secretary Donald Rumsfeld that certain al-Qaeda forces should "either be killed or taken prisoner", while defensible in the circumstances of the battle of Kunduz, could all too easily be seen as a green light for their killing.

The most urgent need now is for a clear policy on observance of international norms, and on practical arrangements for surrender, in the next phases of this war.

There is also a need for an enquiry to establish definitively what happened at the fort.

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Adam Roberts is Montague Burton Professor of International Relations at Oxford University, and a fellow of Balliol College. He is editor (with Richard Guelff) of "Documents on the Laws of War", 3rd edition, Oxford University Press, 2000.