How the Taliban Use Law as A Weapon

By Eloise Sims

In Western society today, we tend to understand law as the absolute antithesis of war. 

The clean, ethical, and efficient image of the courtroom strongly contrasts against the chaos and brutality of the battlefield. This image of law as the direct opposite of war has been heightened by practices such as war crimes trials, and international legal conventions – such as the Nuremberg and Rwanda trials, and the Geneva Convention, to name a few.

The Nuremberg Trials. Credit: Foreign Policy Journal

From legal events such as these, we tend to assume law is not only the direct opposite of war – but actively limits and controls the practice of war.

However, as the advent of modern warfare has resulted in the vast expansion of the frontier of military development, scholars have begun to increasingly examine the relationship between law and warfare. Some – such as Eval Weizman and Elizabeth Dauphinee – have pointed out that law has always historically acted to legitimize warfare, especially in the identification of a “war crime” (which of course, has the effect of preserving other military acts as legitimate if “others” are classified as criminal).

In other words, law can very well be a tool of war.

Major General Charles Dunlap. Credit: WIRED. 

Increasing awareness of this complex relationship between law and war, and the growing use of legal tactics by militaries and non-governmental actors led former US Air Force Major General Charles Dunlap to popularize the term “lawfare” in 2001. 

Dunlap defined lawfare as simply “the use of law as a weapon of war”, as “the most recent feature of 21^st-century combat”. Interestingly, when Dunlap articulated lawfare as a concept, he described it as a discursive weapon used by a weaker “enemy” in order to achieve military goals against vastly more powerful states, such as the United States and Israel.

According to Dunlap, this “enemy” could be guerilla forces such as Hezbollah or Hamas, or a variety of international NGOs. Such non-state actors utilize legal measures to constrain a state’s military action, often by claiming war crimes have been committed.

This interpretation of “lawfare” can be seen in the United States’ opposition to the establishment of the International Criminal Court, as well as in the US National Defense Strategy Paper in 2005 that went so far to claim that the usage of courts and other legal instruments against the US were a form of “terrorism”.

I know this has all been a bit vague so far. But lawfare is a real thing – and as human rights lawyer Brooke Goldstein articulates in this video, it informs US and Israeli policy to this day.

One particularly noteworthy non-state actor that uses international standards of law to wage war is the Taliban. In the protracted War on Terror conducted by US and NATO-led forces in Afghanistan, multiple sources have claimed that the Taliban utilizes civilian casualties to their advantage.

The Taliban, Human Shields, and Lawfare

Afghani civilians in Helmand Province mourn casualties. Credit: The Telegraph

In June 2007, in a widely-reported effort to “win the hearts and minds” of Afghani civilians, NATO declared its forces would not fire on positions if they were aware that civilians were nearby. 

One year later, this stance was expanded upon, with one NATO official going so far as to say that “if there is the likelihood of even one civilian casualty, we will not strike, not even if we think Osama Bin Laden is down there.”

Accordingly, airpower usage in Afghanistan was restricted.

However, somehow, overall civilian deaths in combat regions in Afghanistan reached a new high for the conflict in 2009.

Mounting civilian casualties in Afghanistan. Credit: Brookings Afghanistan Index.

How could this be? According to US and Afghani military analysts, as well as experts from Human Rights Watch, NATO’s verbal commitment to limiting civilian casualties became an opportunity for the Taliban to easily exploit in a legal sense.

Multiple reports claim that Taliban forces began regularly placing civilians near their positions during 2009, as well as storing heavy weaponry in mosques (encouraging urbicide) and using civilians as human shields in active combat zones. One Afghan Army general declared in 2010 that his soldiers had witnessed Taliban fighters placing women and children on rooftops to fire from behind them.

As recently as last year, Afghani and American troops reported that the Taliban were utilizing human shields to protect their fighters from NATO missile attacks. 

The effect of this was that NATO troops could not engage offensively, due to the risk of civilian casualties. Furthermore, when NATO troops did engage offensively, Taliban propaganda sources issued reports of civilian casualties far and wide, and legal investigations were undertaken within NATO. Such tactics can clearly be interpreted as fitting the traditional definition of lawfare, as articulated by Dunlap, by the use of law as a discursive propaganda tool within the conflict.

Video: NATO aircraft holding fire after being informed Taliban forces are utilising human shields in the area. 

Perhaps one particular incident of Taliban’s usage of the legal concept of civilian casualties is telling. In 2008, British troops from the 2^nd Battalion of the Parachute Regiment received intelligence that an attack was imminent from a compound full of Taliban fighters.

Children in Sangin. 
Credit: The San Diego Union-Tribune.

The aftermath of a NATO strike in Sangin. Credit: Sputnik International. 

Upon firing on the compound, they later discovered that at least seven civilians were sheltering inside – and had killed, amongst others, a six-year-old boy and an eight-year-old girl.

Despite the fact Defense sources insisted that the Taliban had used human shields, the incident was still subject to a lengthy investigation by the Ministry of Defense and ISAF, and coverage in international newspapers.

In this case, civilian casualties (and their legal ramifications) clearly served to further the Taliban’s goals by making British NATO troops subject to both diversionary legal investigation and international scrutiny.

While the usage of human shields is, of course, a war crime in itself, through using international legal standards of civilian immunity as a tool of war, the Taliban sought to exploit civilian casualties for their own advantage.

In other words, while lawfare might seem like a somewhat dull and confusing legal concept, the case of this attack shows us how important it is for us to understand due to its real-life consequences.

Indeed – depressingly - similar examples of human shields being used for legal purposes are already apparent in conflicts around the world, particularly amongst ISIS fighters in Mosul.

Lawfare may be a tricky concept to understand. But it’s certainly one that’s here to stay as a tool of 21st-century warfare.

Taliban leaders converse. Credit: Al-Jazeera News.