Prisoners Dilemma

We’ve vanquished the Taliban. Now what do we do with them?

The moral crisis of this war was supposed to be: American bombs killing Afghan civilians. Human rights groups, journalists, our allies, and the Arab public warned that “collateral damage”—to use the military euphemism—would demoralize the war. But many fewer noncombatants have been killed than anyone expected. U.S. bombs have been exceptionally precise, U.S. commanders remarkably restrained.

It turns out that the dilemma of the war is combatants. How to not kill soldiers is becoming just as important as how to kill them. Thousands of enemy fighters—some Afghans, some foreigners—are trapped by the Northern Alliance siege of Kunduz. And much of the Taliban leadership, including Mullah Omar, remains holed up in the south around Kandahar.

The ruffian commanders of the Northern Alliance have been sending ambiguous signals about what they will do with the Kunduz fighters if they surrender. (Negotiations for that surrender are ongoing as I write.) All the Northern Alliance generals agree to let the (disarmed) Afghan Taliban go free, and the more PR-savvy ones—such as Abdul Dostum—vow that surrendering foreign fighters will be treated humanely under principles of international law. Others are less politic. Gen. Mohammed Khaksar ordered his troops to shoot all “foreigners” after three Arab fighters faked surrender and set off a suicide bomb, killing five of his men. Another warned that the Northern Alliance would take revenge on the foreigners. (Neither side has an impressive record of humanity toward surrendering troops: Foreigners in Kunduz have reportedly slaughtered hundreds of Afghan Taliban who tried to capitulate while Northern Alliance forces were caught on camera executing wounded Taliban and may have massacred Pakistanis who tried to surrender in Mazar-i-Sharif.)

The United States is pretending that the fate of the enemy is not our problem. Secretary of Defense Donald Rumsfeld insisted on Monday that the small U.S. force in Afghanistan would not accept surrender from anyone, and that it was up to the Northern Alliance and southern opposition tribes to negotiate with the Taliban. This stance is a charade, of course, because we clearly are setting conditions for Taliban capitulation. Moments after he emphasized Northern Alliance control of the surrender, Rumsfeld stated that the United States won’t accept any settlement that allows Mullah Omar to go free or permits foreign fighters to leave Afghanistan and fight another day. The United States will make sure, through our Afghan proxies, that Taliban leaders are killed or jailed, and we will certainly assume control of al-Qaida leaders we want to interrogate. But by posturing that the Afghan opposition controls how the war ends, the United States has deniability if the Northern Alliance massacres the foreigners in Kunduz.

The United States clearly bears some responsibility for its proxies. The Northern Alliance and southern opposition are funded and armed by us and have advanced only because of our airstrikes. What is our moral duty (and theirs) toward Taliban and al-Qaida holdouts?

If the enemy fighters don’t surrender, the United States and the opposition owe them no mercy. This is perfectly clear under the law of war. We can bomb the fighters of Kunduz to dust (as long as we don’t target civilians), and the Northern Alliance can go house to house killing the resisters. The violence is awful: American bombing is horrific, and the enemy suffers terribly. But if they keep fighting, under international law and rules of war, we owe them no quarter. We may stop if we choose to. The Gulf War’s “Highway of Death,” in which U.S. forces had a turkey shoot against a trapped Iraqi convoy, prompted President George Bush to declare a unilateral ceasefire. Continuing to wipe out the Iraqis would have been, in Colin Powell’s words, “unchivalrous and un-American.” But no international law required the United States to stop bombing the Iraqis because they had not surrendered. The different situation in Afghanistan militates against a voluntary ceasefire. The Taliban forces, unlike the helpless Iraqis, are still fighting back, and the United States has not yet achieved its war aims, as it had in Kuwait.

U.S. leaders probably don’t want the Kunduz foreigners—some of them presumably al-Qaida monsters—to surrender. Having them all killed in battle would solve the problem of how to prevent them from living to fight another day or of trying the worst of the lot in court. But if the Kunduz fighters do wave a white flag, the Northern Alliance must accept their surrender, and the United States as dominant power must do everything it can to force the Northern Alliance to accept the surrender. There is no wiggle room in international law or the law of war: If Osama Bin Laden himself threw down his weapon and threw up his hands, the capturing troops would be required to let him live. If the Northern Alliance does slaughter surrendering soldiers, it would be a war crime.

The United States is not pushing for a massacre, but it has certainly not done enough to emphasize that the Northern Alliance must accept a surrender. When Northern Alliance generals hint at slaughtering the foreigners, Rumsfeld and other U.S. officials don’t correct them. Our failure to insist that the Taliban have a right to surrender may discourage the enemy holdouts from giving up—they may be fighting to the death because they fear being slaughtered if they surrender. In other words, our failure to rein in the Northern Alliance may be prolonging the fighting.

How do we treat the enemy prisoners fairly when they do give up? The capitulating soldiers probably do not deserve to be considered prisoners of war. Under the Geneva Convention, POWs cannot be put on trial for their military service and must be repatriated to their home country. But the Geneva Convention envisions a traditional kind of war between regular armies and state powers.

The foreign fighters represent no army or state, and the United States will argue that they are “unlawful belligerents” who aren’t entitled to POW status. Under the Geneva protocols, soldiers qualify as POWs only if they belong to a regular armed force, distinguish themselves from the civilian population, and fight openly and honorably. Pretending to be a civilian and engaging in terrorism is an automatic disqualification from POW status. The United States, not unreasonably, counts the foreign fighters as unlawful belligerents since they don’t wear uniforms and at least some have used despicable terrorist tactics.

This does not mean that we can summarily execute or torture them if they surrender. “Just because they have given up their lawful belligerent status does not mean they have given up all their human rights. They have just given up the special protections accorded to POWs. Once they give up their arms, international law will protect them. They cannot be summarily executed,” says George Washington University law professor Ralph Steinhardt.

The consensus of lawyers and scholars seems to be that unlawful belligerents, unlike POWs, can be tried and punished by a victorious power as long as they are treated with basic fairness. The United States will probably conduct a “screening process” to separate the run-of-the-mill Taliban fighters from possible al-Qaida terrorists, says Catholic University law professor Michael Noone. The regular fighters might go free while prisoners identified as potential terrorists would be subject to the military tribunals President George W. Bush established last week. Such tribunals would not violate international conventions if defendants knew the charges against them and defend themselves. Prisoners could be executed after conviction—not summary executions, but certainly morally troublesome ones.

Could we forgo the trials and release the prisoners, even ones we know are dangerous? We could, and we have in the past. During the Indian wars, says University of North Carolina historian Richard Kohn, the United States defeated tribes in battle and then let them live (usually on a reservation), knowing that the tribes would likely rebel again. We could do the same to al-Qaida loyalists.

The most daunting ethical question the United States faces may be in Kandahar. The Northern Alliance is more or less a regular army. It can take prisoners. But the southern opposition is disorganized. It’s not clear that Taliban forces in the south can surrender if they want to. The United States won’t accept surrender, and there is no real Afghan army for the Taliban to submit to. We may be assaulting an enemy that has already yielded. Human Rights Watch is investigating a report that the United States bombed a Taliban village after the Taliban there tried to surrender. Executive Director Kenneth Roth says Human Rights Watch is urging the United States to establish some mechanism for allowing the Taliban in the south to concede. One of our obligations in war is to let the enemy give up and save their lives—no matter how inconvenient it is for us that they survive.