Annex I
Interview with Top Taliban Leaders (NHK) 1
Some parts of the interview were broadcasted in Today’s Close-Up on September 6, 2012, in Japan and September 11, 2012, on NHK WORLD TV in English. Sohail Shaheen, member of Taliban Negotiation Team in Qatar Syed Rasool, member of Taliban Negotiation Team in Qatar
Interview withS ohailS haheen
NHK : How many members of the political office of the Islamic Emirate of Afghanistan are talking to United States? SOHAIL SHAHEEN : When there are talks or meeting with the politi- cal office, they decide how many members will take part in the talks and according to that decision members of the political office participate in the talks but this occurred before the suspension of the talks. But now there is no contact between the Islamic Emirate of Afghanistan and the United States of America. There were confidence building measures which reached an understanding but they weren’t implemented because the talks were sus- pended and postponed. So, there are now no meetings and talks. NHK : Why were they suspended? SOHAIL SHAHEEN : It was because of the confidence building measures. We had meetings with the Americans, several meetings, and at the end of those meetings, we came to an understanding that the American side should take steps regarding confidence building measures like the opening of the office and also exchange of the prisoners and also delisting. But we have bypassed the delisting. To show a sign of flexibility we have bypassed it but two conditions are still there – exchange of prisoners and also the open- ing of the office. These two conditions which we agreed upon and we had reached understanding about, were not implemented as agreed upon by the United States. So, that was the reason for the suspension of the talks and we said we are abiding by the understanding we reached. If the American side implement the conditions which they agreed upon, there is no problem, no obstacle for the talks to resume. We are still abiding by that rule. 126 ANNEX I
NHK : The last talk with United States was held in Qatar in January, I believe that Mr. Grossman came here because at that time I was in Kabul and we had a press conference in Kabul and he said he would go to Qatar to talk with the Taliban. Was that the last talk? SOHAIL SHAHEEN : Yes, before the talks were suspended, there was meet- ing. But after that there was no meeting, after suspension of the talks. NHK : So, the last talk, how long did it take? Did it take three days or four days in Qatar? SOHAIL SHAHEEN : No, not four days’ talks. It was just one meeting. NHK : And then Mr. Grossman discussed the conditions with you? SOHAIL SHAHEEN : Yes, the condition was we had reached understanding and the office was to be opened and the exchange of prisoners to take place as was agreed upon. Then they brought some new conditions. NHK : What are the new conditions? SOHAIL SHAHEEN : And now the new conditions . . . you know, the Afghan issue is two dimensional – external and internal. External dimension or external side of the issue is that we, the Islamic Emirate of Afghanistan, will talk with the United States about ending the occupation of Afghanistan and all issues related with occupation and also some concern of the Islamic Emirate of Afghanistan of the United States, they will resolve those issues because this is external. It is not in the power of the Kabul administration. They do not have power. They do not have power to end the occupation. These are the external dimensions. When we complete the external dimen- sion, then we come to the internal side of the issue and the internal side is all Afghans sit together to consult each other about the formation of Afghan inclusive and Islamic government in Afghanistan which is based on the aspirations and will of the people of Afghanistan so all the people will feel their participation in the government. So, that’s the internal side. If you bring the internal side before the external side of the issues completed, it will not resolve the issue. Rather it will complicate the issue because the occupation is there. So, it will complicate and create more differences and it will not be resolved. So, as a principle, yes, all Afghans who are living in Afghanistan, they have right to serve their country and also participate in the government but that is the internal side of the issue. So, that was the reason of difference and that was the reason for postponement of the talks. NHK : So, The new condition which Mr. Grossman presented is the participa- tion of the Karzai government? SOHAIL SHAHEEN : Yes. NHK : That’s it? Or are there any other conditions he presented? SOHAIL SHAHEEN : No, there was some condition about the office and also about the Karzai government and those things which is internal phase. So, we told that we had reached the understanding that we will complete first the external side of the issue. Then we will go smoothly and confidently to the internal side of the issue. So, when we bypassed the external and brought the internal which was in violation of the understanding, that’s contradicted the understanding we had reached with them. So, that’s one of the reasons postponement of the talks. NHK : Is there any other issue that you are not satisfied with, I mean, in terms of the US government’s attitude? ANNEX I 127
SOHAIL SHAHEEN : I think in these talks sincerity is very important, honesty, sincerity. And the American side should adopt resolution of the Afghan issue through peaceful means and diplomatic means as a strategy, not as a tactic, a fluctuating tactic – today is one tactic, one remark and tomorrow other kind of assertions. There is backtracking understanding on the points agreed upon because these things complicate the issue. Then the talks will not go forward. Both sides, I mean the Islamic Emirate of Afghanistan and also the United States, should adopt the solution of the Afghan issue through diplomatic ways as a strategy. We are abiding by the understanding we reached, we are abiding by that but when they have new conditions, I think we can say it was not kind of their strategy. They should be stable, constant in their approach to the issue and they should abide by the understanding or agreement which we reached. That will be I think a good thing for the resolution of the Afghan issue. NHK : In terms of exchanging prisoners, is there no disagreement between the US and the Islamic Emirate of Afghanistan (Taliban) ? SOHAIL SHAHEEN : There was disagreement, yes, but that this disagree- ment after the understanding was finished and that is that they will give us our five prisoners and we will give them their prisoner, the American prisoner. NHK : In the US, especially the US congress is concerned that if they are transferred from Guantanamo to Qatar, they then might go back to the battlefield again and the US would like to get assurances that they are kind of under house arrest. What did you talk about that with the US? SOHAIL SHAHEEN : I think they should not be concerned about that because the Americans have released before that prisoners from Guantanamo jail and they released them on their own, without any understanding with any sides. So, when these five people are released, they are released on the basis of understanding, agreement with Islamic Emirate of Afghanistan. So, it is a kind of assurance, a kind of guarantee. So, this is different from the other releases that they did. So, based on that assurance, I think there will not be any violation of the understanding reached between the two sides. NHK : As for the US prisoner which you are holding, what’s his condition? Is he in Afghanistan? SOHAIL SHAHEEN : Yes, he is in Afghanistan, he is in good health condi- tion. NHK : Because he has been held for almost 3 years and you released a video about him before, but not recently. So, some people are very concerned about his whereabouts and his condition. Can you give them the guarantee that he is in good condition? SOHAIL SHAHEEN : As far as I know, he is in good condition, yes. NHK : And you had a dialogue with the US not only in Qatar but also in Germany. What was the atmosphere of the talks with the US before the suspension? SOHAIL SHAHEEN : The diplomatic way is one of the options to obtain out rights, legitimate rights. The Afghan people, they are not struggling for something which is illegal. We want just independence of our country which is the right of every people which is also mentioned in the charter of the United Nations. We want a government based on the will of the people and the aspiration of the people. These are legitimate things and rights 128 ANNEX I
of the people. We are the people who are trying to obtain these rights through diplomatic ways, through peaceful ways. So, we tried hard but it was not tense atmosphere, maybe hard talking. NHK : Is it business like? SOHAIL SHAHEEN : Yes, you can say that. If you are talking for your own <
ways, through the use of force and they tried. That option was taken for 10 years and they failed. Then they knew this option has failed. When they wanted to talk we said like “Okay” and we have opened option to them and we are still, this option is valid for us. NHK : Why can’t you stop fighting right now? SOHAIL SHAHEEN : Without having gotten our rights? If we gain our rights and there is a government formed, the occupation is ended, there would be no fight. The fight we are doing is for certain things for the independence of our country, for liberation of Afghanistan, our freedom and our government which is all ethnic groups of Afghanistan participat- ing in that government, an Islamic government which is represented by our people and the government <
but that’s the second phase. This is kind of our strategy what we do in the first place and then in the second place and above this phase we have reached understanding with the Americans. This we want to be implemented. NHK : Do you believe that the dialogue with the US will resume? SOHAIL SHAHEEN : I think if they want to resolve the issue through peace- ful means, it will be resumed; it is not difficult but first there should be willingness for the solution of the issue through peaceful means. If there is a will, there is a way. NHK : Do you believe that the US will withdraw the request of the Karzai’s participation? SOHAIL SHAHEEN : Yes, of course, as you said, we have reached an under- standing about that. So, in principle we will talk to all Afghans but that’s the other side of the issue, the internal side. So, one should not intermingle the two sides because, as I said before, it will complicate the issue rather than solving it because we want to resolve the issue, not complicate it. Why should we intermingle that? NHK : When we interviewed the US side, the US government said that the reason why the dialogue is stalled is that the Islamic Emirate of Afghanistan doesn’t issue the statement which is to denounce international terrorism and dissociate from Al Qaeda. What do you think their claim ? SOHAIL SHAHEEN : First of all, there are no Al Qaeda now in Afghanistan and even the official of the United States of America, they admit this. Secondly, the statement, that would be a part of the understanding but that would be after the confidence building measures are taken. It will be followed by the confidence building measures but actually even during the time of the Islamic Emirate of Afghanistan, no one was allowed officially to use the soil of Afghanistan. Our agenda is in Afghanistan non-interven- tion in other countries, maintaining good relation with all countries of the world because it is necessary we know for the construction and develop- ment of our country, we are living in this world, we have to maintain rela- tion with the international community to benefit from their advancement, their knowledge. So, we know that. And also we focus on our country, our infrastructure of our country, industries of our country. This is our agenda. We do not believe in export of revolution to other countries. So, our agenda is Islamic nationalistic. NHK : You said that the statement to denounce the international terrorism will be followed after the confidence building. Didn’t the US government ask you to issue that statement at the stage of the confidence building? SOHAIL SHAHEEN : About terrorism, we have already condemned that. Killing of civilian people, harassing them, targeting of civilian people, of innocent people, whether it is done by a group, it is done by an individual, it is done by a state, we condemn those. And we have issued statements recurrently about this, repeatedly about this and of course we will say and we will say again that civilian people by anyone – group, individual or a state – we condemn it but there is one difference. Some struggle like our struggle in Afghanistan which is for independence of our country, for our own legitimate rights, this is something different from terrorism. NHK : During the Taliban regime, you hosted Al Qaeda in Afghanistan. So, I am wondering it may be difficult for the Islamic Emirate of Afghanistan to issue a statement saying that you are breaking your ties with Al Qaeda. ANNEX I 131
SOHAIL SHAHEEN : First of all, I will say we have no connection in that terms to carry out some sabotage activities in other countries, we are not into this. The other thing is that there is no member of Al Qaeda in Afghanistan. As I said, even the American officials . . . and you know the Director of the CIA has admitted that. Members of Al Qaeda after the invasion of Afghanistan, they went to other countries, to their own countries and to African countries. So, now there is nothing like that and even then, as I said, our agenda is development, rehabilitation of our coun- try and independence of our country, a government based on the will of our people. So, we have no agenda to work with any group in the soil of Afghanistan against any country. This is part of our manifesto. It is kind of our strategy. NHK : So, in the dialogue with the US, if you explain what you told me to the US side, were they satisfied about your attitude about international terror- ism? Was the US satisfied with your explanation? SOHAIL SHAHEEN : I don’t know. You can ask them. I just explained my strategy. That’s not my personal view. That’s the strategy of the Islamic Emirate of Afghanistan. NHK : Because when we talked to the US side, it seemed to us that they were very much frustrated with your attitude toward international terrorism and Al Qaeda. Why do you think they are so much frustrated? SOHAIL SHAHEEN : I think there is maybe some misunderstanding because they do not know about the strategy of Afghanistan, enough information and because of the lack of enough information, it is maybe the cause of their frustration but they should know, as we said, our agenda is nation- alistic, Islamic. We want to focus on our own country and prosperity of our people to form a Islamic government with participation of our people. That’s our strategy and we said we will not allow anyone to use the soil of Afghanistan against any country, that we need cooperation of the inter- national community in order to economically advance our country in all fields – cultural, education, and other fields, technical. So, that’s part of our agenda and strategy and they should know that. If it is not clear to them, they got distorted information about us. Maybe that’s the cause of their frustration but we want the world that they should know our stance directly from us in our own words. So, that will be transparent and will be clear. So, we will understand each other more clearly. NHK : Is Haqqani group not supported by Al Qaeda? SOHAIL SHAHEEN : No. You know, there is much talks about Haqqani net- work and Al Qaeda but actually Haqqani is a commander of the Islamic Emirate of Afghanistan. There are some propaganda and distorted infor- mation and those things in many circles and they are clearing up these things but actually he is a commander of the Islamic Emirate and he is fighting solely for independence of Afghanistan and also the same goal which is followed by the Islamic Emirate of Afghanistan. NHK : The US government is now considering designating Haqqani group as a terrorist organization. If the Haqqani Network is designated as a terrorist organization, what will happen? SOHAIL SHAHEEN : I think, first of all, Haqqani is struggling for the inde- pendence of our country and they are struggling for their <
reason he is designated as a terrorist group, I think it will be in violation of international law and it will also not help the peace process. I think it should not be. NHK : What kind of impact will it have on the peace process? SOHAIL SHAHEEN : It will create problems in the peace process because when you are talking and you are trying to resolve the Afghan issue through peaceful means and at the same time simultaneously someone from your group is designated as a terrorist, it means someone is creating hurdles, obstacles in the way of the peace process which is underway. So, I think it will not be suitable and also a kind of contradiction with the international law because Haqqani is not carrying out sabotage activities in other coun- tries; they are occupied in their own country. NHK : Do you think that the US government is now taking very serious steps to restart the dialogue? SOHAIL SHAHEEN : So far, no, until we see practical steps and we have not seen any practical steps in this regard. Confidence building is very necessary in order to resume the talks and they have believed that the solution of Afghanistan, of the Afghan issue can be reached through peaceful means, through diplomatic ways, they should take the steps in order to resume the talks but they did not take these practical steps; it means that maybe they are not serious in their approach to the peaceful solution that much. NHK : Are you feeling that the US’s strategy is shifting toward military again? SOHAIL SHAHEEN : I don’t know. Two things – first, that they intermin- gled the internal phase with the external steps and also after March suspen- sion of the talks they have not taken practical steps but still it is not clear they are returning to the military approach once again, it is not still clear. It will be seen in future. NHK : If US continues not to talk to the Islamic Emirate of Afghanistan, what will happen? SOHAIL SHAHEEN : If they decide not to talk with the Islamic Emirate of Afghanistan it means they are returning to the military approach and they want to solve the Afghan issue through military means. So, everything will come to be same as it was before that they are intent on using the force and getting their goal through the use of force. So, the Islamic Emirate will have no option except to follow the same option, to resisting in order to gain their goal but still this option, diplomatic option is open from our side. NHK : Which means after the international troops finish their combat mis- sion in 2014, after 2014, the Islamic Emirate of Afghanistan is ready to cease the fire, I mean, stop the fighting? SOHAIL SHAHEEN : If the people of Afghanistan gain their rights, full independence and from an independent government which reflect their national Islamic values, the war and the fighting will naturally come to an end; but if there is still hurdles, problems in the way and independence is not gained, of course it means the fighting will continue. So, it means it depends on whether the American side before that date are working sin- cerely to resolve the issue through peaceful means with Islamic Emirate of Afghanistan or not. If they resolved it, there will be no fighting. ANNEX I 133
NHK : Whether the negotiation succeeds or not, the international troops’ combat mission will be completed before the end of 2014. However, the Karzai administration troops and police are there after 2014. Do you think that you will continue fighting against them? SOHAIL SHAHEEN : If the foreign forces pull out from Afghanistan and the Karzai government is there and the Karzai government is not represent- ing the will of the people, of all the Afghan people, all the Afghan ethnic groups and many groups are deprived of their rights, so it will not be a representative government. Of course the fighting will continue until the people of Afghanistan freely and according to their will get a government which reflects their Islamic and national values and aspirations. NHK : Does it mean that your goal is to revive the Taliban administration? SOHAIL SHAHEEN : No, it is not in that sense. Our goal is, as I said . . . I never said to revive government as you referred to. We want a government, an Islamic government participated by all people, reflecting the aspirations of all Afghan people, of all ethnic groups and independence of the country. So, it is not in that term but it is an Islamic government participated by all Afghan people. NHK : How do you think you can achieve that? Is there any possibility that you can join in the elections in 2014? SOHAIL SHAHEEN : First of all, in the internal, as I said, it is the internal side of the issue. In the internal side of the issue, all Afghans should come together and sit together and do some brainstorming about the formation of the government and then we will decide on a setup and that setup will be an Islamic government and an independent country and also representing the will of the people. That is what we want. NHK : I think you are aware that the President Karzai recently said that Mr. Mullah Omar also can be president through an election. SOHAIL SHAHEEN : Yes, this is his own words and he is powerless. Sometimes even he says he puts pressure on the NATO night raids but NATO launches night raids and even the election there was rigging. He was himself complaining about that. Under the occupation, there can’t be free elections. That’s his own words in an atmosphere which is not pos- sible but the real aim is that the occupation should end, Afghans should sit together and they are an independent country, free country, they should decide about the future of the government which will be representative of the 30 years, 3-decade struggle of the people. We have given about two million people just for our independence and just to have an Islamic gov- ernment because the Islamic government like a welfare state, prosperous and that is for the Afghans, for the poor people. There are certain rules in the government; it answers to the needs of all the people. Otherwise, it will be a government controlled by a few people and there will be division between the upper class and lower class of the society. NHK : Let me double check about the dialogue with the US. If the US allow Islamic Emirate of Afghanistan to establish an office in Qatar and exchange prisoners which means that they complete the confidence build- ing measures, you are ready to cease fire, stop the fighting and talk peaceful negotiations? SOHAIL SHAHEEN : After the opening of the office we will enter the phase of negotiation. Ceasefire can be a part of the package of negotiation. We 134 ANNEX I
can reach above that but it will be after negotiation how we can reach mutually but after the opening we go to negotiation and after that we can reach about ceasefire or not but it will be through the negotiation what package we reach at the end of the negotiation. NHK : So, you are ready for the peaceful negotiation? SOHAIL SHAHEEN : Yes because when the office is open, of course we go to the peaceful negotiation to resolve the issue about peaceful means and the o ffice i s open . . . NHK : In terms of the peaceful negotiations, who are you going to negotiate with? Is it with the United States or with Karzai government? SOHAIL SHAHEEN : At the first phase we will negotiate with the United States. At the second phase we will negotiate with Afghans. NHK : If the peaceful negotiation take place and you agree to cease fire, do you believe that the militants in Afghanistan will follow the result of the peaceful negotiation which means that they will stop fighting? SOHAIL SHAHEEN : Yes. In Afghanistan, the Islamic Emirate of Afghanistan it is a very coherent force. They follow their leader and they are taken into confidence because they know that this negotiation is another tool to obtain their goals which they are trying to gain through military ways. So, when we negotiate and we are trying to obtain the same goals, there will be nothing they will not obey. They will all obey the leadership of the Islamic Emirate of Afghanistan. NHK : When we interviewed some militants – I believe they were not at the senior level but lower level – they still do not believe that some people are having negotiation or dialogue with the United States and I thought it’s very difficult for them to believe that there is a peaceful negotiation between the Islamic Emirate of Afghanistan and the United States. I was wondering that they are really following you. SOHAIL SHAHEEN : I don’t know about your interview. May be they are not the real people because something happened, some impostors have given interview like the incident with Mullah Masood, some impostor came to Kabul. And there are also interviews by some impostors but the responsible people have never been interviewed like this. As far as I know, the Islamic government has organization set up. Like any other government they have political office like foreign ministry and also defense ministry, ministry of interior, all the ministries they have, even up to the district governors and all these governors. So, based on that, I think there will be no one to not obey the instruction of the leadership as regards to the peaceful solution of the Afghan issue. NHK : I think [it’s] the last question. I was wondering why you decided to accept our interview this time and what kind of message would you like to convey in our coverage. SOHAIL SHAHEEN : We participated in Tokyo conference and that was a good chance. For decades the world had not received our message directly in our own words and our image was distorted and we were presented through other peoples’ words and through another angle and it made dif- ficult the issue of Afghanistan. We want to explain our side, our views directly to the people in our own words and tell them what we want, what we are. I think it will contribute to the solution of the issue. That is why we accepted your interview. ANNEX I 135
And about the second part of your question, we urge the media outlets that they convey the ground realities in Afghanistan to the public of the world and that as we are portrayed, the Islamic Emirate of Afghanistan and that the Taliban are not terrorists as they are portrayed; it is an Islamic national- ist movement focused on their own country and the independence of their country, on formation of government which is the will of all the people, all ethnic groups; more than that, they do not want any intervention in other countries and in addition to that, they want cooperation with all countries of the world including the neighboring countries because as we want to make advancement economically and in all sectors including education, we need that cooperation and that is our agenda and we need to talk more to the media and also the media to project the real face of the Islamic Emirate of Afghanistan. I think it will contribute peace in my country. NHK : Thank you very much. We have one more question. What is your message to the United States? SOHAIL SHAHEEN : All we suggest to the United States is Afghanistan is a historical country. Here from Alexander up to Britain and now to America, the former Soviet Union, the can’t come here. They invaded Afghanistan but they never had control of Afghanistan by force. My message is the last dictators, a good lesson to him, they should give the Afghans their rights. They should free Afghanistan to the people, to the Afghans which is their home and about their concern that Afghanistan will be used against their territory, their country, we assure there will be nothing like this because that is not a part of our agenda because that’s not a part of our manifesto. So, they should consider that it is better for them to give the rights to the Afghan people. It is in the interest of the American government and American people and also it is in the interest of the Afghan people. In this way the war also will come to an end and peace will be obtained. NHK : Regarding the dialogue, what’s the message that you want to convey to the US? SOHAIL SHAHEEN : Regarding the dialogue, we have opened the options of solution of Afghan issue through diplomatic ways. It is not us that back- tracked. We are abiding by the understanding we have reached with the Americans. The Americans should also respect and abide by the under- standing which was reached. If you go on those series as we have agreed upon, I think it will be better to enter the negotiation stage rather than wasting that. NHK : Thank you very much. SOHAIL SHAHEEN : Welcome. Thank you.
Interview withSyed Rasool NHK : First of all please explain how you see the future of Afghanistan. What is your strategy to realize peace and stability in your country? SYED RASOOL : We, after the end of occupation, want an Islamic, inde- pendent and sovereign Afghanistan, and a restoration of lasting peace. We are giving special attention to reconstruction, particularly the recon- struction of hospitals, highways and natural resources. We will pay spe- cial heed to education within the framework of Islamic principles and 136 ANNEX I
national interests, and give full rights to the women. We have a special focus on extracting natural resources and mines, the revival of agricul- ture, trade and industry, to pave the way for foreign investors to make investment and do trade. We want to have good political, economic, technical and educational relations with the entire world on the basis of mutual respect, and want to benefit from their progress and develop- ment, especially in education, technical and economic fields. We want complete eradication of narcotics and corruption and the appointment of competent people. NHK : What is your goal? Are you going to revive the Taliban administration or is there any possibility of power sharing with the Karzai administration? SYED RASOOL : Our struggle is not for power sharing, rather we want to enforce such a system in Afghanistan that is in accordance with Islamic principles and the values of Afghanistan. NHK : Is there any way for restoration of peace and stability in Afghanistan without violence? We are very much concerned about the instability and security situation in Afghanistan as many people have lost their lives. Is there any way for a negotiated settlement? SYED RASOOL : Emirate (The Islamic Emirate of Afghanistan) has been calling for peace and understanding since the beginning. The opening of political office is part of this process. NHK : Is it safe to say that the Islamic Emirate of Afghanistan is ready to hold peace negotiations with the US or Karzai administration? SYED RASOOL : This conflict has two sides. One external and one inter- nal. When we achieve confidence building measures with the external side, then in a new phase of negotiations, talks could be held with Afghans. NHK : Right now you are engaged in dialogue with the US, discussing the issue of the exchange of prisoners. After prisoners are exchanged, will it possible for the Islamic emirate to start peace negotiations? SYED RASOOL : What had earlier been agreed upon with the Americans, was allowing the opening of political office and the exchange of prisoners. We abandoned the issue of a black list for the sake of the negotiations. NHK : If those two conditions are met, can the Islamic emirate negotiate with the US or Karzai administration for a cease fire? SYED RASOOL : Yes, we will consider talks and negotiations. It is possible. Understanding can be reached with the Karzai administration as they are also Afghanis. However, this is the second step after negotiations with the US. NHK : We want peace in Afghanistan very much. What needs to be done to achieve a cease fire? SYED RASOOL : We are also interested in the peace, prosperity and recon- struction of Afghanistan. But war has been imposed on us. Peace and pros- perity in Afghanistan or rather peace in the world can only be restored when the occupation ends. NHK : But why can’t you say that you will stop fighting right now ? SYED RASOOL : To end fighting, confidence building measures must be taken. I have already said that this war has been imposed on us. NHK : I would like to confirm your two conditions. One is the exchange of prisoners and the other is establishing political office in Qatar? ANNEX I 137
SYED RASOOL : Yes, that’s what we’re referring to, but we also want a guar- antee for ending occupation. NHK : Before ending occupation, can you talk about a cease fire? SYED RASOOL : This depends on the negotiation process. NHK : The US government wants you to issue a statement, denouncing inter- national terrorism and disassociating yourselves from al-Qaeda. Can you do that? SYED RASOOL : The Islamic Emirate, has from the beginning had no con- nection with terrorism. Nobody has so far proved that an Afghan has ever committed terrorism against anyone. Target-killing, torturing and harass- ing of defenseless and innocent civilians, by any individual, group or any government, is strongly condemned by the Islamic emirate. The Islamic emirate considers the efforts and struggles oppressed nations’ make for attaining their rights and freedom as a legitimate right. This is enshrined in the United Nations charter as well. NHK : So, why are you not issuing a statement denouncing international ter- rorism and disassociating yourselves from al-Qaeda ? SYED RASOOL : The US Government says that talks between the Islamic Emirate and the US stopped because the Taliban are not issuing such a statement. Al-Qaeda has no presence in Afghanistan, nor we have brought al-Qaeda to Afghanistan. We have no link with them. This is propaganda by people against the Islamic Emirate. This can be proved in the statement of Joe Biden where he said that the Taliban are separate from al-Qaeda. NHK : Is it very difficult to issue such a statement? (denouncing international terrorism and disassociating yourselves from al-Qaeda) SYED RASOOL : This is premature, and we have not held consultations on this issue. If someone has no connection with an issue, then what is the need for issuing a statement? NHK : The reason we ask is because when we interviewed some Taliban mili- tants they said that they are receiving support from al-Qaeda technically and financially. Do you think that the leadership of the Taliban can make them cut ties with al-Qaeda? SYED RASOOL : The Islamic Emirate does have its own officials and depart- ments, and the officials of every department are known. The confirmation of any issue is only reliable and acceptable when it is confirmed by the official concerned. NHK : Mr. Agha Jan Motasem, who is in now in Turkey, has been de-listed recently by UN sanctions. What is the relationship between him and the political members of Taliban in Qatar and do you think he was attacked by Taliban hardliners who were against the dialogue with the US? SYED RASOOL : He has no link with the Islamic Emirate. Motasem Agha Jan issued a statement saying that he fell victim to fighting between MQM and Pashtuns in Karachi. NHK : When we interviewed the Taliban militants, some of them said they support the dialogue with the US and some do not. It seems to me that there is a division among the Taliban. Do you think the Taliban are divided? SYED RASOOL : Not at all. All the Mujahideen of the Islamic Emirate are fully committed to the Emirate, and are working according to the directives and orders of it. Some people who are making some statements due to some 138 ANNEX I
reasons that might have been motivated by the enemy. The Mujahideen are fully obeying the Islamic Emirate and are very sincere, there is no division at all in their ranks. NHK : You are participating in dialogue with the US. How was the atmo- sphere? Was it tense? SYED RASOOL : The atmosphere was good from their side, as the negotia- tion was their demand. It was not our demand. They made the demand, so naturally the atmosphere was good. NHK : But the dialogue has been stalled. If the US continues not to talk with the Islamic Emirate of Afghanistan in future, what will you do? SYED RASOOL : Peace and reconciliation has been our demand for a long time and it still is even now. The war has been imposed on us for a long time. If the opponent’s side still desires to continue the war and keep fight- ing, we are ready for it, for war. NHK : Have you received any indication from the US that they would like to resume talks with the Islamic Emirate of Afghanistan? SYED RASOOL : From different channels, indirect indications are there, but from our side, the talks are suspended. NHK : What do you think about the relationship with Afghan neighboring countries such as Pakistan and Iran ? SYED RASOOL : Our relations with the entire world especially with our neighbors, particularly Islamic countries are within the framework of Islam, within the framework of national values and within the frame- work of national interests and on the basis of mutual respect and equal- ity. However, defending rights and protecting rights is the right of every country under international norms. We, in Afghanistan, pursue the policy of a non-aligned country. Sovereignty and territorial integrity are among our objectives. NHK : Regarding the dialogue with the US, how many times did you partici- pate in a dialogue with them? SYED RASOOL : Talks are held after consultations and then some specific persons, representatives take part in the talks. I think the US Government was ready to transfer five Taliban prisoners from Guantanamo to Qatar if the Taliban agreed to two things. One is partici- pating in dialogue with Karzai and two is the issuance of a statement. The procedure is that first of all, a political office be opened and prisoners released and exchanged. Then a statement will be issued. NHK : According to our information, the US government considers that first they will release two prisoners from Guantanamo to Qatar and then Taliban will release the US prisoner they are holding. Then they will trans- fer two more prisoners and then the Taliban will issue the statement. After the statement is issued, one more prisoner will be released. Is this what they are saying to you ? SYED RASOOL : The procedure which had been agreed upon with the Americans is first permission for the opening of a political office and then the exchange of prisoners. There is a need for understanding as to what will be the procedure for the swap of prisoners. When these two issues are settled, then an announcement will be made. NHK : Why did the US government break the agreement? ANNEX I 139
SYED RASOOL : This should be asked to the Americans. It seems that they were not sincere at the beginning of the dialogue. NHK : What is the sticking point now? Is the biggest sticking point the inclu- sion of the Karzai administration in the dialogue or having a political office in Qatar for resuming the dialogue ? SYED RASOOL : As I said earlier, this conflict has two sides (external and internal) and there is a foreign or external side which enjoys real power. Opening a political office should be allowed and prisoners exchanged. The condition relating to Karzai should be excluded from the phase of confi- dence building measures. NHK : For me, for Japanese people, it is quite difficult to understand why you are refusing Karzai’s participation in the dialogue. For peace in Afghanistan, why don’t you just allow him in and then move forward and start the dialogue? SYED RASOOL : It is obvious that the real power in the conflict rests with the foreigners. Moreover, the Karzai administration is under the occupa- tion. We weren’t invited to the elections, nor did we cast our votes in the elections. Furthermore, Karzai is known to you and the entire world that he frequently changes his statements. NHK : But peace in Afghanistan is most important. You may object to the participation of Karzai government, but if you think peace is important for Afghanistan, why don’t you allow him in just as an observer and then start dialogue again? SYED RASOOL : When the internal phase gets started, I mean discussing the internal issues at the negotiations phase, we will reach an understanding with him, not only as an observer, but as a party. NHK : Thank you very much. We appreciate your time.
Annex II
New Directive from Amir ul-Momineen Mullah Mohammad Omar Mujahid (September 14, 2009)1
Translated text of the 2009 Directive2 Edited by Abu Omar Islamic Emirate of Afghanistan Public Relations Department 3 of the Military Shura Directive of Islamic Emirate of Afghanistan In the name of the merciful Allah
1. To the families of the brave Mujahedeen of our beloved country, to the injured Mujahedeen and to all the families of the detained Mujahedeen, I wish you festive Id-e-ramadan. May God accept your Ramadan, prayers and the citations of the Qur’an. 2. I call upon all the new responsibles 4 of the Province to obey my new Directive and to implement and ensure implementation by your fellow Mujahedeen. 3. To all new Responsibles of the Province, whether military or civilian, any- body who acted without consultation of the Shura and who has earned the criticism of others, will be stripped of his weapons. 4. The Responsible in the Province should solve province-related problems internally without burdening his subordinates. Discuss any problem with all your subordinates regardless of hierarchy and report them to the Shura. Act only after having received approval from the Shura. 5. Do not place children, except Arabs and Tajik children, in training centres and military camps even if they have the necessary combat skills. They are still children. If an Afghan Taliban is seen with a child, the responsible will be stripped of his weapons and an earthshattering 5 punishment will be inflicted. 6. The vehicles of the Mujahedeen must not be used for different (private) purposes even if they are high-level Mujahedeen. 142 ANNEX II
7. War spoils should be shared with the families of the martyrs and the families of the prisoners. 8. Unless the person works for the government, any person is presumed innocent and he cannot be kidnapped for ransom. Any violator will be severely punished. 9. Any Afghan technician or engineer working on road construction in the country, or building construction, shall not be killed on the spot. He shall be transferred to the Shura and the Shura shall decide. If a guar- antee is obtained from a third person that he will not re-engage in his activity, he will be released. 10. Vehicles of different foreign organisations or institutions shall not be usurped. Any violator may be punished without the authorisation of the Amir ul-Momineen. 11. If a high-level foreign engineer, military officer or journalist is captured, he shall be transferred to the Responsible of the Province. The respon- sible is prohibited from killing the detainee nor trade his release against other conditions. 12. Nobody, including the military commander, is allowed to talk to, or to build relationship with foreigners unless authorised by the Shura. If such a relationship is discovered, he shall be punished by the Shura on grounds of spying (for the foreigners). 13. Everybody’s opinion should be reflected in the press and published material. 14. Press and media personnel should make efficient use of their time and acquire computer and English skills in order to fulfil their mandate. 15. Foreign Mujahedeen should be treated with care. Do not take them to the city, and prevent their contact with others. 16. It is prohibited to plant mines on non-asphalted roads in order to avoid martyring innocent people. 17. In every military unit, the responsible should conduct operations together with his subordinates. He must not give orders such as to per- secute others which are not related to military operations. 18. The Mujahedeen is prohibited from developing military plans by his own and must (first) consult Amir ul-Momineen and obey (his orders). 19. The Mujahedeen must determine the area of combat through delibera- tion with others. God will bestow compassion and victory upon those who deliberate. 20. A new Military Shura will be founded in Peshawar. The responsible will be Maulawi Abdul Aziz. Complaints from the Mujahedeen about the responsible should be reported to the Shura.6 The Shura will discuss the measures to take and, if necessary, his weapon will be confiscated and (he will be) punished. The contact numbers of the mobile phone are with the Committee. 7 21. If the Committee does not take appropriate measures for the injured, the Mujahideen doctor must report it to the Shura. ANNEX II 143
22. (Even) If a spy is captured with evidence on him, such as documents, satellite phone, cards 8 , etc. he shall not be executed without permission. The authority to punish is with the Shura. 23. A suspected translator or anybody without clear incriminating evidence cannot be detained nor killed. 24. In case of planting a bomb in schools, utmost care should be paid not to kill children and innocent people. It is prohibited to destroy schools that teach religious classes. 25. Members of the Shura and the Responsible of each Province must not interfere with the politics and domestic affairs of the neighbouring country.9 26. Those with different ideology are considered an enemy and no discus- sion should take place with them. This is a decision taken by myself, the Amir ul-Momineen and the Shura. 27. If a military commander is seen in a meeting of the enemy, he will be expelled from the country or severely punished. 28. The responsible is prohibited from collecting money from the general public in the name of the Emirate. Many people, particularly tradesmen, donate voluntarily (to the Mujahedeen) and they should not be forced (to do so). If such an act is observed, the Amir ul-Momineen will order death by torture. 10 29. The Responsible of the Shura, the Responsible of each Province and media persons are prohibited from talking freely on their mobile phones. An alias should be used and the name must not be revealed. 30. The Shura distributes monthly stipends, weapons and money to the Responsible of the Province and complaint of non-receipt will not be accepted. 31. The media persons should treat Islamic poets with great respect. A monthly salary will be paid from the budget. Their activities boost the morale of the Mujahedeen. They have been fighting alongside our forces and made a lot of sacrifice. The responsible of the Shura should also take up this matter. 32. Date of issuance
25.09.1430 ( lunar calendar ) 23.06.1388 ( solar calendar ) 14.09.2009 ( western calendar)
Annex III
Taliban’s Code of Conduct
The translation below is reproduced from Muhammad Munir, “Annex—The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” International Review of the Red Cross , 93 (881), pp.103–120.
The Islamic Emirate of Afghanistan. The Layha [Code of Conduct]* For Mujahids In the name of God (Who is) the most gracious and the most merciful, We praise and pray for the glorious Messenger.
There after: Allah Almighty says [in the Holy Book]: Allah doth command you to render back your Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For Allah is He Who heareth and seeth all things (58). O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination (59). 1
Striving [Jihad] in the way of Almighty Allah is the highest worship and greatest duty through which the honour of the Islamic Ummah 2 and the sublimation of the expression of Allah Almighty takes place. Jihad is a fun- damental tool for the success and magnificence of the Muslims through which the dignity and happiness of the Islamic Ummah can be secured. The nations who have carried out Jihad enjoy independence and free life. By con- trast, the nations which have sheathed the sword and abandoned Jihad have not received any benefits apart from having been shackled to the neck by the chains of slavery and captivity. Today, while the Mujahids are giving their 146 ANNEX III sacred blood for the prestige of Allah’s word, for the honour of their own Muslim nation and the Islamic Ummah, in order to be able to organize Jihad affairs in the light of a comprehensive Jihad strategy and to guide Mujahids in terms of administrative, educational, judicial, moral and ethical aspects [of life] more than ever before, there is a need [for us] to have such a Layha [Code of Conduct], which will enable Mujahids to better clarify their aim; to identify the intentions of the enemies of Islam and their supporters; and to easily find a solution for the doubts and vagueness which they are facing in a Jihad environment. In accordance with the divine guidelines, the duties should be given to those God-fearing and brave [persons] who are not only capable of carrying out their duties in a good way, but also able to neutralize the enemy’s conspiracy in time. Thanks to the favour and support of God Almighty, the Leadership of the Islamic Emirate, in order to implement the demand of the moment, has been able to compile the Layha and the Regulations into 14 chapters and 85 articles in the light of Mohammedan Sharia and through the assistance and advice given by the prominent and erudite theologians [ulema], chief judges [muftis], specialists and knowledgeable persons of the country. [The Leadership of the Islamic Emirate] based on the assistance of the mentioned persons and taking into account the current situation has added some issues to the second edition [The Code of Conduct and the Regulations] and has elaborated on some matters and introduced some clarifications. After the publication of the second edition, every person in charge and every Mujahid of the Islamic Emirate has a responsibility and duty in terms of obeying [the rules of] this Layha and its implementation. All military and administrative authorities as well as ordinary Mujahids of the Islamic Emirate in matters of Jihad affairs are bound to all principles of this Layha and obliged to organise their daily Jihad activities in the light of the regulations of this Code of Conduct. Vassalam, 3 1431 lunar year of the Hegira system, 15 of Jumadi al Thani 2010.05.29 1389.03.08
Introduction
1. In the Layha [Code of Conduct], Imam and Najib Imam 4 refer to the Respected Amir ul Momineen 5 Mullah Mohammad Omar (Mujahid) and his deputy, respectively. 2. In the text of the Layha, whenever [the situation of] giving punishment to somebody is mentioned it does not include the collection of money. 3. In the articles of the Layha, whenever the taking of guarantees is men- tioned, it refers only to unmovable properties and persons. It does not refer to money or movable property. ANNEX III 147
4. The second edition of the Layha was published and went into affect on the 15th of Jumadi al Thani, 1431 lunar year of the Hegira system which corresponds to the 8th of Jauza, 1389 solar year of the Hegira system and to the 29th of May, 2010 year of Christian era. Mujahids and persons in charge of the Islamic Emirate are obliged to implement this Code of Conduct.
Chapter 1—Issues related to the surrender of the oppositionists and giving them dawat6 [invitation]
1. Any Muslim can give a dawat [invitation] to the employees of the Kabul servant administration in order to encourage them to leave their duties in this corrupted administration and to sever their ties with it. 2. If somebody is leaving this corrupted administration because of some- body’s dawat, or because of his own faith, then in the case of the ordi- nary person the district chief shall give a letter of permission to him, and in any case of a well-known person or a person who has inflicted harm on Muslims, the district chief shall provide such a letter after consulta- tion with the governor and shall inform the Mujahids about the letter. If any Mujahid will kill the person or cause any harm to him, the person who committed this act shall be given punishment in the light of Islamic principles. 3. Regarding those persons who have surrendered and repented during their period in power (while working with Infidels or their slavery administra- tion), if they harmed someone or caused harm to someone’s property, then this person is obliged by Allah Almighty to make amends. If he does not, then he is [considered] guilty. Of course, the court or somebody else can- not receive a compensation or fine for the crime by force, nor can they punish him. If a person took some else’s property and are still in possession of it, then the real owners of the property can take it back from this person, but if the property is no longer in their possession, then the real owners can not take compensation by force [from the person]. If a person during his period in power has accumulated debts or made deals such as purchasing and selling on good faith [of both parties concerned] and is still in debt [towards one of the parties concerned], then the debt can be recovered. If somebody asks for the court to be convened regarding such a personal mat- ter, then the individual concerned should attend the court. Of course, if any thefts have taken place, or one tribe has attacked another tribe, village, household, shop, vehicle or anything else, or has committed murder or has taken a property, in this case a trial and compensation are applicable.7 4. If a person does not stand on his promise and carries out obvious treach- ery after accepting the dawat [invitation] or calling, the promise given to him is invalidated. In the case of a second surrender or repenting [of the person], if Mujahids are not sure of his sincerity, then a guarantee shall be asked from him. 148 ANNEX III
5. If a person, having been linked to the current corrupted administration and accused of murdering Muslims, or that Muslims hate him and feel an aversion towards him, or is departing from the ranks of the opposite side, then the Mujahids shall ask this person for a guarantee that he will not change his mind and will not inflict harm on anybody. The person in question shall lead his ordinary life, but those responsible in the district are obliged to watch and follow up on him until gaining full trust and confidence in him. In case an important operation is conducted and the person in question kills a foreign invader or a high-ranking government official, or provides the Mujahids with the opportunity to catch them alive, he could be nominated to the leadership and may receive additional privileges. 6. As regards those persons who depart from the inferior administra- tion and surrender to Mujahids, they should not be included into the Mujahid ranks without consultations among the Mujahids and until they gain full confidence in those persons. After gaining such confi- dence, the permission shall be obtained from the person responsible for the province. 7. If any armed person from the opposite side leaves his unit and goes to a place where he cannot defend himself and the circumstances look like this person would like to surrender, any attempt to kill him would be unlawful until [the moment] it becomes clear that he does not have any intention of surrendering and will continue to attack and deceive. 8. If somebody from the opposite side contacts a Mujahid to say that he will be at the service of Mujahids inside the opposition’s ranks, and that for this [service] he and his [military] squad8 or group of his Mujahids should not cause the person any troubles, in case of such a contact, Mujahids have permission to grant him this particular security. They should not give him general security guarantees though.
In case of such a contact, the Mujahid should seek permission from the per- son responsible in the district who, in turn, should request permission from the governor. Given the fact that it will be personal security [guaranties] given to a particular person by a particular person or group, other Mujahids will not have any responsibility in case of any killing or harm done [to the security given to that particular person].
Chapter 2—About prisoners
9. When an enemy, regardless of whether they are a local or a foreigner is captured, he will be handed over immediately to the person responsible in the province. After the handover it is at the discretion of the person responsible for the province whether to keep him [captive] with the particular Mujahids [those who captured him] or to hand him over to others. ANNEX III 149
10. If a local soldier, policeman, an official or other responsible person with affiliations to the slave administration has been captured, it is at the discretion of the governor to release them in the case of prisoners exchange, as part of a goodwill gesture or in exchange of solid guar- anties. Receiving money for the prisoner’s release is forbidden. Only Imam, Najib Imam and the provincial judge have the authority to exe- cute or to punish. Nobody else has this authority. If a judge has not been appointed yet in a province it is up to the person responsible in the province to decide the fate [of a prisoner] with regard to their execution or punishment. 11. In case of the capture of contractors who transport and supply fuel, equipment or other materials for the infidels and their slave adminis- tration, as well as those who build military centres for them and those high- and low-ranking employees of security companies, interpreters of the infidels and drivers involved in enemy supply [business], if a judge proves the fact that the aforementioned persons are indeed involved in such activities, they should be punished by death. If the judge has not been appointed yet in a province it is up to the person responsible in the province to decide the fate [of a person] with regard to the issues of proof and execution. 12. If a military infidel has been captured, his execution, release through prisoner exchange, intentional release or release upon payment in case the Muslims need money, is at the discretion of the Imam and Najib Imam. No one else has of the authority to make this decision. If the captive becomes Muslim, the Imam or Najib Imam has the authority to release him in a prisoner exchange, provided that there will be no danger of his becoming an infidel again. 13. If the Mujahids capture prisoners and, during transportation to their [Mujahids’] military centres, encounter a threat and are unable to take the captives to a safe place, and if the captives are people of the opposite side who have been captured during the war or who are officials of the opposite side, then the Mujahids present can kill them [the captives]. However, if they do not belong to these groups of people and there are doubts about the prisoners’ status and they have not been identified yet or have been captured in relation to juridical [legal] issues, then the Mujahids are not authorized to kill them even if there is no option but to leave the captives at the scene. 14. If a policeman or soldier will surrender to the Mujahids and repent, the Mujahids are not allowed to kill him. If the policeman or soldier has a weapon with him, or if he had accomplished any great deeds, the Mujahids should express endearment towards him. 15. Mujahids should not expose those detained by them to starvation, thirst, cold or heat even if they deserve death. The Mujahids should punish the detained persons in accordance with the decision provided by Sharia concerning them, whether that would entail execution or any other type of punishment. 150 ANNEX III
16. Apart from the Imam, Najib Imam and the judge nobody has the right to issue a ta‘zir 9 punishment. If a district judge, without the presence of the provincial judge, should issue the ta‘zir execution punishment, the district judge should receive permission from the provincial judge. However, in those provinces where the provincial judge has not been appointed yet, any determination on execution and issues related to ta‘zir punishment shall be at the discretion of the governor.
Chapter 3—About spies
17. If evidence of espionage is found regarding a person he will be consid- ered as a perpetrator of social destruction. The provincial judge and district judge and, in case of their absence the person responsible for the province, has the authority to issue the ta‘zir punishment. The Imam, Najib Imam, provincial judge and—in case of the absence of the judge— the governor have the authority to execute [kill] the arrested spy. No one else can pass a decision to execute him. 18. Whenever a person has been categorized as a perpetrator of social destruction it is obligatory that it be proven in accordance with the four points below.
FIRST: the person willingly confesses his espionage, without any coercive force applied against him. SECOND: two witnesses give testimonies regarding the espionage and the testimonies given by them should be reliable before the judge. THIRD: circumstantial evidence (documents) raises strong suspicion, such as specific tools (equipment) used by spies for the purpose of spying and other such evidence. Of course, not every one can assess the circumstantial evidence. If the court is available, the judge, and if it’s not available, a specialist—an effi- cient and pious person—shall examine the strong and weak [aspects] of the circumstantial evidence. If the circumstantial evidence is [found] weak then the ta‘zir punishment shall be reduced and if the circumstantial evi- dence is [found] strong then the punishment shall be strengthened. If the circumstantial evidence is strong enough for a firm conviction [unshakable confidence], and if the Imam, Najib Imam and judge have determined that execution [killing] is appropriate, then they can execute him. FOURTH: a person who is eligible to be a witness is someone who is very just [fair], without fanaticism [prejudice], who keeps himself far from Kabair [Grave sins] and never prolongs [when committed] the Saghair [Minor sins].
19. A confession obtained through [the means of] coercion, namely beat- ing, threatening, suffering [torture] is not valid and cannot be used to prove the crime. The person who is taking a confession should be reli- gious and bright [quick on the uptake] in order to prevent the use of coercion (force) when taking a confession because, in [accordance with] ANNEX III 151
Sharia, a confession obtained though coercive force is untrustworthy and invalid. During confession, the Mujahids should not make promises to a prisoner, which they have no intention to fulfil. However, it is not sufficient to merely take confessions or testimonies from a spy concern- ing other people. In this case those four points mentioned in article 18 shall be applicable and any actions shall be taken in light of them. 20. If Mujahids have concerns and doubts about a person suspected of spy- ing and his crime has not been proven completely in accordance with the principles of the Sharia, the district chief in consultation with qualified people 10 can exile the person from the area to a place where there will be no threat [to his life] and he will be safe. Another option would be taking from the suspect a solid guarantee. A solid guarantee means that trusted people from the respective area or who are sympathetic with the suspect will guarantee that the suspect will behave appropriately. Unmovable property might also be given as a guarantee such that, if the person starts spying again or commits another harmful act and escapes, he will not be able to use it. 21. If a criminal deserves death and an execution verdict has been issued against him in accordance with Sharia [by the court], he should be exe- cuted by gun, regardless of whether he is a spy or otherwise. Taking pictures of the executed person is prohibited. 22. Given the fact that many Sharia regulations are linked to the death of a human being, in case the Mujahids have executed a person sentenced to death without his relatives having been informed, the Mujahids should use to all possible means they consider appropriate in order to inform the heirs of the executed person about the date of execution.
Chapter 4—Regarding those who carry out supply and construction activities for the enemy
23. It is lawful to burn private cars which transport materials or which carry out other services for the Infidels. However, trading cars for money or using them is prohibited. 24. Regarding drivers who are captured while transporting the Infidels’ materials, if Mujahids are confident that [the drivers] were indeed trans- porting materials [goods] for the infidels and their slave administra- tion, then the drivers should be killed and their means of transportation should be burned. In case a person is in captivity, and if the judge is convinced that these persons are indeed involved in this business [mate- rials transportation for the infidels and their slave administration] then the judge should give them a death punishment. Of course, in case a province has not yet had its judge appointed, the matters related to proof and execution shall be transferred to the governor. 25. As far as these contractors (leaseholders) are concerned, those who are involved in activities such as construction of centres [bases] for the 152 ANNEX III
infidels and their slave administration as well as transportation of fuel or other materials for them, the Mujahids should burn down their trans- portation means and kill them [leaseholders, contractors]. In case such a person is in captivity, and if the judge is convinced that the person is indeed involved in such activities, then the judge should give them a death punishment. Of course, in case a province has not yet had its judge appointed, the matters related to proof and execution shall be transferred to the governor. 26. If it is clear that contractors are involved in the finding of labour workers and other workers for activities on behalf of the opposite side and they are doing their patronage as well, these contractors should be killed.
Chapter 5—About spoils [trophy] 27. Spoils [trophy] refer to the goods that are captured during a fight with the combatant infidels. In Afghanistan, a one-fifth portion of the spoils will be deposited with the person responsible in the province, who will use the spoils in the Khums 11 [fifth part] expenditures in accordance with instructions given by the leadership. Four parts of the spoils will belong to the Mujahids who were present at the scene or their commander if he was dispatched somewhere to set the trap, for information gathering or other matters related to the particular fighting. Four parts of the spoils may also be distributed among those who meet the following two conditions:
FIRST: those, who are close enough to the field of operation that in case of need they can go there and help. SECOND: those who are willing and ready to take part in the operation and are in contact with the fighting Mujahids. For example, thief a com- mander deploys him [or them] at a site close to the battlefield saying that if required he will call them to join the operation. Those who do meet the above-mentioned criteria will not be entitled to the spoils.
28. The commanders of Mujahids should write down the names [and other Identity information] of the Mujahids in order to use this information while distributing the spoils and in case of capture or martyrdom of the Mujahids and for other needs. 29. If the Mujahids will fight [war] in a village and the villagers also take part in the fighting, then they are entitled to a share in the spoils, and if they do not participate, then they are not entitled. 30. If a Mujahid becomes a martyr before the end of the fighting then he is not entitled to a share in the spoils. Of course, the Mujahids should show kindness to him and give him a share. If he becomes a martyr on the battlefield or after the ending of the war then he is entitled to a share of the spoils and his part shall be given to his heirs. 31. The money or materials [goods and other valuables] taken from foreign invaders in the result of fighting [war] are considered as spoils. If they ANNEX III 153
are taken by the Mujahids without any fighting, then they are consid- ered as Fay 12 , and go to the Public Treasury. 13 32. If Mujahids seize materials from the slave administration as a result of fighting, then the leadership permits it to be divided as spoils. If the materials are taken without fighting, then they should be sent to the Public Treasury in order to be used for the general needs of the Mujahids. 33. Money which has been taken from a common treasury (a bank) and is in the possession of a reliable person who has not yet distributed it among labourers and employees, shall be divided as spoils if it was obtained through fighting [war]. If it was seized without fighting, then it shall be considered as Public Treasury. However, if the money has already been delivered to the employees and labourers, then these employees and labourers shall be considered as owners [of the money]. The Imam, judge and the person responsible in the province can issue a ta‘zir pun- ishment to these individuals but cannot take their money from them. The same applies for the wages received by the workers of organizations [NGOs].
Chapter 6—Regarding organisational structure
34. The persons responsible in the provinces are obliged to create a commis- sion at the provincial level comprised of qualified members. The mem- bers must not number less than five. The provincial commission, along with each district chief and with the agreement of the person responsible in the province, should organize such commissions at the district level. A maximum of three members of the district commission and a mini- mum three members of the provincial commission should be present in the field [area] of their activities. The leaders and members of both com- missions should be those persons who will not have an excuse to leave the area of their activities. 35. In those districts where the activities of the Mujahids of the Islamic Emirate are obvious and visible, a person in charge should be appointed as a district chief. Following the agreement reached with the higher- ranking responsible persons, the district chief should appoint a person as a deputy for public14 affairs, who would not have much involvement in military affairs. This person should have a certain [level of] knowledge about public affairs and should be experienced with good manners and moral values, so that people can easily access him. 36. The creation of new groups and [military] squads is prohibited. In case of urgent need, the person responsible in the province can request the Leadership’s permission, following an agreement of the organizing director. 15 Unofficial and self-organized [military] squads should join bigger groups through the governor. If they refuse to join and disobey, they should be disarmed. 154 ANNEX III
37. The spokespersons of the Islamic Emirate are appointed by the Leadership, following suggestions from the relevant administration. They will be the representatives of the whole Islamic Emirate. No one else is allowed to talk with the media on behalf of provinces, groups or individuals. Obeying this rule will prevent disorder, confusion and dis- unity. 38. Each person responsible in the province should set up a Sharia court at the provincial level, comprising one judge and two prominent theo- logians who will solve complicated issues at the provincial level which seem to be difficult to solve for theologians and those responsible at the district and village levels. The governor should present a proposition to the Leadership in order to receive an approval for the [proposed] judge and members of the court. 39. The organizing director can bring changes in the organisational struc- ture of the province upon consultation with the governor. The governor can bring changes in the organisational structure of the district upon consultation with the district chief. However, if the governor and dis- trict chief cannot reach a common view after consultation, the governor will refer the issue to the organizing director.
If the governor and the organizing director do not reach an agreement, the organizing director will present the issue to the Leadership. The provincial commission can change a district chief after [conducting] thorough investi- gation and receiving permission from the organizing director and the person responsible in the province.
Chapter 7—Internal matters of Mujahids
40. It is compulsory for the Mujahids to obey their [military] squad leader; for the squad leader to obey the district leader; for the district leader to obey the provincial leader; for the provincial leader to obey the organiz- ing director and for the organizing director to obey the Imam and Najib Imam as long as it is rightful under the Sharia. 41. Anyone who is appointed as a person with responsibility must have the following characteristics: Inventiveness, piety, courage, compassion, and generosity. If none [of the candidates] have all these characteristics, then at least inventiveness and piety are required. 42. The military commission, in order to secure progress in military affairs, has a duty to prepare plans [of action] taking into account the might [abilities] of the Mujahids of every area as well as the geography of the area, and to apply and share successful techniques and experiences with the Mujahids. In case of increasing enemy pressure in a province, the Military commission should prepare a programme for the Mujahids of neighbouring and other provinces in order to disperse the enemy’s might and decrease the pressure in a particular area. The commission ANNEX III 155
should present [such] programmes for consultation at the level of the Leadership, and after receiving the Leadership’s approval should pass an order to the provinces to proceed [with the programme]. 43. The military commission should be aware of the Mujahids’ situation [conditions] in all provinces and should know capable and effective Mujahids in order to introduce them to the Leadership for a better sup- ply or reward. 44. Given the fact that the majority of the members of the Military commis- sion are military commanders, it will be difficult for them to assemble in one place. Therefore, in case of need, as many members [of the commis- sion] as possible can assemble and continue their work. In addition, it is up to the commission responsible to organize the commission [internal activities] in a way that will prevent delays and problems in work. 45. The Military commission will ask the persons responsible in the prov- inces to present information about their procedures [performance] and activities and to send from time to time its delegations to the prov- inces in order to encourage the Mujahids, to ensure progress in military affairs, to strengthen [the situation] and to collect information. 46. In order to tackle public 16 and judicial issues, article 62 of the Layha shall be applicable. In case of any matters arising between the common people 17 and Mujahids, or between Mujahids themselves, the resolution of which is a prerogative of the provincial or district commission, the provincial commission should agree with the governor and the district commission should agree with the district chief or his deputy. The com- missions should listen attentively to the explanations of the parties con- cerned and if the provincial commission is unable to resolve the matter, then it should be addressed to the military commission. The military commission should choose a peaceful resolution. If it still fails to resolve the matter, it should then present the issue to the Leadership. The Leadership shall resolve it through the respective structures [boards] or through [the assistance of] the theologians. If a commission 18 has made a decision, then the announcement should be made in the presence of both parties concerned. 47. The provincial and district commissions, along with their other duties, should monitor [the situation] in order to prevent the infiltration of bad people into the ranks of Mujahids. If such persons are identi- fied, they should be reported to the governor. The commissions shall do their best to resolve contradictions [disputes] between Mujahids and between common people and Mujahids. The commissions shall observe the implementation of all decrees and regulations of the Islamic Emirate. The commission shall do its best to draw attention of violators [to their mistakes] and to correct [their behaviour]. In case the behaviour goes uncorrected, those persons should be reported to the governor. 48. If common people or Mujahids have an issue with a member of the military commission or provincial or district commission or with his 156 ANNEX III
comrades and the resolution of the issue is entrusted to a commission of which the mentioned person is a member, then the person should not participate in the gatherings dedicated to the resolution of this particu- lar issue. 49. The provincial commission is obliged to organize the members of the commission in a way that once per month they will guide the Mujahids in terms of obedience, piety and moral values and will monitor their conduct. 50. If a Mujahid has committed a crime or has violated the Layha repeat- edly and the [military] squad leader or district chief decides to withdraw him from the ranks [of Mujahids] because of the committed crime, [in this situation] the leader should forward the case of the criminal to the provincial commission. The provincial commission should thoroughly investigate the issue and in case the crime indeed deserves expulsion, the provincial commission shall make a decision after receiving an agree- ment from the governor. After this, nobody will have a right to arm and equip the expelled person. If the person has repented [of the committed crime], then he can be given a duty with the agreement of the provincial commission and the governor.
If the above-mentioned person is a leader of the [military] squad, district chief, district deputy chief or another responsible person, his case should be forward to the military commission via the governor or provincial com- mission. The Military commission has the authority to try to correct [the behavior of the person], to summoned him, to advise him and to warn him. If after all [the person] did not correct [his conduct], then the commission should introduce him to the Leadership in order to assess his disarming or expel- ling from the ranks [of Mujahids]. In case he repents, he can be given a duty again, but [in such situations] the approval of the Military commission or governor is required.
51. The persons responsible at the provincial and the district levels, depend- ing on the conditions in the area, should hold consultations at an appropriate time with respective responsible [persons] about opera- tions conducted, actions, achievements and shortcomings in order to be able to prepare more successful strategies in the future and to spare the Mujahids from [possible] harm. 52. If a [military] squad leader in one district or province wants to carry out Jihad in another province or district, he can do it. However, he needs permission from the [persons] responsible in the respective province or district. The persons responsible for the respective province or district will be his superior. He should be fully obedient to the person in charge [of the area]. 53. If any governor or other leader already has an active group or [military] squad in another province, he should introduce the relevant squad and ANNEX III 157
Mujahids to the person responsible for the relevant province. After this, they will be obedient to the governor of the relevant area and will follow his instructions [when executing their duties]. The person responsible in the province will provide them with logistic supplies as they do for the other Mujahids of the province. In the structure of the Islamic Emirate, united front lines are prohibited. These front lines, Mahaz, are not part of the organisational structure of the Emirate. 54. If a military squad leader from a particular province is giving his assis- tance to the persons responsible for another province with regard to Jihad affairs and afterwards wants to continue to carry out Jihad in that place, the person responsible in the province should seek accurate infor- mation and agreement from the person responsible in the province of origin [of the group leader] before accepting him and giving him a place. Moreover, [the person responsible in the province] should ask a new- comer about the reason behind his decision to leave the previous prov- ince and to come to a new one. If the reason does not contradict Sharia, then the person could be accepted. 55. A military squad leader who would like to increase the members of his squad or group cannot invite Mujahids who belong to another squad. Of course, if a Mujahid wants to join another responsible [group leader], he can do it. However, Jihad tools given to him by the previous military squad leader in order to serve Jihad, or those tools which were seized by common effort and for which the squad’s property right has been established, shall be returned to the previous squad leader. If an item was given to him as spoils or was obtained as a personal belonging, he can take it with him. 56. Those valiant warrior19 Mujahids who are entering the enemy centre in order to conduct a group armed attack should consider the following points: 1. These valiant warrior Mujahids should receive a good training and each of them should be given particular tasks. 2. These valiant warrior Mujahids should be very well supplied and equipped in order to be able to resist for a long time and inflict a lot of damage on the enemy. 3. The Mujahids and their leaders should receive in advance full infor- mation and understanding about the area they are going to attack. 57. Regarding martyrdom attacks, the four following points should be con- sidered: 1. A martyr Mujahid should be well-trained prior to the attack. 2. A martyrdom attack should be used for important and high-value targets. The self-sacrificing heroes of the Islamic Ummah must not be used for low and worthless targets. 3. In martyrdom attacks, much more care should be taken to prevent the deaths and injuries of common people. 4. Apart from those Mujahids who received an individual programme and permission from the Leadership, all other Mujahids must receive 158 ANNEX III
permission and instructions from the person responsible in the prov- ince before carrying out martyrdom attacks.
58. The general commissions of the Islamic Emirate shall hold from time to time consultative meetings in order to be more successful and advanced on matters under their responsibility.
Chapter 8—Regarding education and training 59. The educational and training activities within the structure of the Islamic Emirate should be carried out according to the programme and regula- tions of the Education commission. The persons responsible in the prov- inces and districts shall conduct their educational efforts in accordance with the strategy of the abovementioned commission.
Chapter 9—Regarding control and regulation of organizations [NGOs] and companies 60. The persons responsible in the provinces shall deal with organizations [NGOs] and companies in accordance with the instructions issued by the Commission for Control and Regulation of Organizations [NGOs] and Companies. However, the commission is obliged to consult the relevant person responsible in the province. In case of disagreement between the two entities, instruction should be requested from those responsible in the Leadership. Provincial, district and military squads as well as pro- vincial representatives of the mentioned commission are not authorized to make decisions on their own regarding organizations [NGOs] and companies’ issues.
Chapter 10 —About health 61. The Health Commission of the Islamic Emirate has a special procedure in terms of arrangement of its activities. The treatment of the Mujahids shall take place in accordance with this procedure. The provincial health representatives are obliged to obey the regulations and implement the instructions of the Health commission.
Chapter 11 —Public affairs 62. Military squad leaders are not authorised to interfere with affairs of the common people, even if the local residents request the Mujahids to solve judicial issues or other matters. Only the provincial or district authority can examine the case of the applicant and through the relevant proce- dure, first, should try to resolve the issue via an intermediary and then by means of peaceful and lawful Jirga in a way that [the decision] will not contradict the holy Sharia. If a peaceful solution and reconciling ANNEX III 159
Jirga is not possible then the parties should refer to the court. In case of the court absence, both parties should proceed on the basis of the view expressed by prominent theologians. 63. All decisions regarding issues and disputes made in a proper manner when the Islamic Emirate was in power cannot be reviewed or re-exam- ined at this stage, even if one of the parties concerned is not satisfied [with the decision]. This is because in those days there were better con- ditions for justice than nowadays. 64. Persons responsible for Mujahids and persons affiliated with them should not interfere with common people’s disputes nor should they take sides in a dispute or go to judges or courts as an intermediary or supporter. 65. The persons responsible in the provinces and districts, squad leaders and all other Mujahids should take maximum measures to avoid deaths and injuries among common people, as well as the loss of their vehicles and other properties. In case of carelessness, each one will be held respon- sible according to their acts and position, and will be punished depend- ing on the nature of their misconduct. 66. If a responsible person or ordinary person harms common people in the name of the Mujahids, the superior [of the perpetrator] is obliged to correct this ordinary person or responsible person. In case the superior fails to correct [the perpetrator], they should report to the Leadership through the person responsible in the provinces. The Leadership will then punish the ordinary person or responsible one according to its judgement. The Leadership can expel [the perpetrator] from the rows of the Mujahids, if considered necessary.
Chapter 12—About prohibitions 67. From the beginning of the Movement until now, weapons were col- lected on a huge scale. The collection conducted [by now] is enough and sufficient. From now on, no weapon shall be collected by force for the Public Treasury. 68. In line with the previous order, the Mujahids should strongly avoid smoking cigarettes. 69. Non-adults 20 (underage persons without beards) are forbidden to live in the Mujahids residential places and military centres. 70. In the light of Sharia, cutting off parts of the human body21 (ears, nose, and lips) is strictly prohibited. The Mujahids should strictly prevent such practices. 71. The Mujahids of the Islamic Emirate must not collect by force ‘ushr, zakat and chanda.22 If they receive something through ushr and zakat, they should cover their Sharia expenditures from this income. 72. The Mujahids should not search people’s houses. If a search was strictly necessary, then they will obtain permission from the person responsible 160 ANNEX III
for the district. The Imam of the mosque in the village and two village elders should accompany the Mujahids during the search. 73. Kidnapping people for money for any reason is prohibited. The per- sons responsible in the relevant area must firmly prevent this. If peo- ple commit this kind of act in the name of the Islamic Emirate, the provincial responsible person should disarm these criminals and give them a strong punishment, following the instructions given by the Leadership.
Chapter 13 —Recommendations 74. Every [military] squad leader is required to spare special time for Jihadi training, as well as religious and moral teachings and education of his colleagues. When they are not fighting or there is no emergency [situ- ation], they should not be negligent about their training [and educa- tion]. 75. If there is no danger, Mujahids should worship in the mosque collec- tively. If going to the mosque is difficult, they should worship together in their places of residence. Special care should be given to recite [read] the Koran 23 and praise God, 24 because praising and recitation bring sat- isfaction and strength in the minds. 76. The Mujahid’s strength of mind should be dedicated to military activ- ity. They should keep themselves away from people’s problems and local conflicts. On one hand, these problems cause extra work; on the other hand, it brings unnecessary conflict of interest among people and the Mujahids themselves. However if there is a case which the Mujahids can- not ignore, they should act in accordance with Article 62. 77. All staff of the Islamic Emirate should try their best to convince peo- ple who are deceived by the opposition to surrender and to put their weapons down. On one hand, the enemy ranks will be weakened, and on the other hand, the obstacles created by local people will decrease. Moreover, in some cases the Mujahids can obtain weapons and ammuni- tions [from the surrenders]. 78. The Mujahids have the duty to behave well with people in accordance with Islamic ethic and moral values, and should try to win hearts and minds of ordinary Muslims. A Mujahid should represent the whole Islamic Emirate in a way that all fellow compatriots will welcome him, and be ready to assist and collaborate with him. 79. The Mujahids should keep themselves away from all sorts of ethnic, lin- guistic, and regional prejudices. There is a narration from Hazrat Abu Horeira, may God be pleased with him, saying that the Prophet of God, may peace be upon him, had deigned to speak: “When the one who is fighting under an unknown flag (referring to a person advancing with closed eyes; the good and bad of him cannot be determined), or the one who is angry (upset) due to ethnic prejudice (which is not the word of Allah), or who invites people to ethnocentrism ANNEX III 161
(and not to Almighty Allah), or who assists someone for ethnic reasons (not for Almighty Allah) is killed, this person will die in ignorance and darkness (like during the period before Islam).” 80. A superior responsible [person] should audit from time to time his sub- ordinate regarding the Jihad’s items and financial expenditures. 81. The Mujahids should adapt their physical appearance such as hairstyle, clothes, and shoes in the frame of Sharia and according to the common people of the area. On one hand, the Mujahids and local people will benefit from this in terms of security, and on another hand, will allow Mujahids to move easily in different directions.
Chapter14 —Aboutthe Layha 82. An amendment in this Layha is the sole authority of the Islamic Emirate and Advisory Council 25 of the Islamic Emirate. If someone else dares to bring changes or violates its rules, his excuse will not be accepted. 83. The Military commission as well as the provincial and district commis- sions have a duty to keep the Mujahids informed about the provisions of this Layha and other decrees of the Islamic Emirate and to ensure its implementation. 84. In case of facing a situation that is not discussed in the booklet, Mujahids should take advice from the person responsible in their districts. In case of failure at this level, the issue must be referred to the person respon- sible in the province. If a solution is not found, the person responsible in the province should ask for instructions from the organizing director. In case of not finding a solution, the organizing director should ask for instructions from the Leadership. 85. It is compulsory for all the Mujahids to act upon and follow the articles [of the Layha]. The violator will be treated according to Islamic principles.
May Allah give us his favour Honourable Mujahid brothers!
● All your intentions and conduct should be in accordance with divine direc- tions and the doctrine of the Prophet. ● You should stand before the enemy as steel; events and propaganda should not shake your persistence. ● You should give a place in your hearts to your Mujahid brothers and to your people; keep strong links of brotherhood and loyalty with them in order to prevent the enemy being successful in his ill-fated aim of spread- ing disunity. ● Conduct all your Jihad activities and operations on the base of consulta- tions, carefulness, inventiveness and rationality. ● Never act based on personal dislike, preferences, indifference and urgency when giving somebody a punishment. ● The protection of public properties as well as life and properties of com- mon people is regarded as one of the basic responsibilities of Mujahids. 162 ANNEX III
Therefore, you should do your best in order to act in accordance with this responsibility and do not let ambition and indulgence in worldly pleasures arm persons to offend common people or to damage their property in order to get material wealth.
From the speeches of His High Excellency Amir ul Momineen.
Annex IV
Sample Questionnaire for the Taliban on the Layeha
Thank you very much for allowing us 30 minutes for this interview. I am a PhD student from Japan researching on the rules and laws applied during armed conflict in Afghanistan. The objective of my study is to know whether members of the Islamic Emirate of Afghanistan respect what kind of rules in relations with the civilian population, prisoners, and the government. I will neither ask nor mention your name in any publication (except ini- tials but optional). The data will be used for my PhD study, which will be published sometime in 2013–2014. The questions will take 15–30 minutes to answer.
Q1. Have you heard of the Layeha? If yes, how? In trainings? In forms of a booklet?
Q2. If yes which Layeha have you heard about? __ 2006 __ 2009 __ 2010 __ others
Q3. Do you think Layeha must be respected? Multiple answers possible. If Yes: __ Because it was issued by Amir ul Momineem __ Because it is close to Qur’an __ Because it is close to Pashtunwali __ Because I simply have to obey __ For fear of punishment __ Others: If No : __ Because I do not agree with the content __ Because it is not followed by anybody 164 ANNEX IV
__ Because I do not know the content __ Others:
Q4. According to you, which rules need to be respected the most?
Q5. If you see that your colleagues do not follow the rules what do you do? __ Nothing __ Correct verbally __ R eport toyour s uperior __ R eport tothe haiats (commissioners)
Any example of sanction or punishment when the rules were not respected? Q6. In general, do fighters from the Jihad times (against the Soviet Union) tend to respect the Layeha more than the younger generation? Is there any difference between Pakistan and Afghan nationality?
Q7. Why do you sympathize with the Islamic Emirate of Afghanistan? __ they fight a holy war __ they are real Muslims __ they fight the corrupt government __ they protect Afghan interest __ they fight against foreign forces __ theybring security __ they pay me well __ I looked for adventure __ others
Q8. According to you, in which aspect is the Islamic Emirate of Afghanistan superior to the central government? __ E ducation __ H ealthcare s ystem __ Security __ Resolving legal disputes __ Creating jobs __ Fighting corruption __ Maintaining relations with international community __ R evivingdevelopment __ Supplying water and power __ Fight for Independence of Afghanistan __ Others
Q9. According to you, in which aspect is the Central Government superior to the Islamic Emirate of Afghanistan? __ E ducation __ H ealthcare s ystem __ Security ANNEX IV 165
__ Resolving legal disputes __ Creating jobs __ Fighting corruption __ Maintaining relations with international community __ R evivingdevelopment __ Supplying water and power __ Fight for Independence of Afghanistan __ Others
Q10. In which province and district do you fight? Is this the province of your origin?
Q11. Whichlevel of them ovement doyou occupy? __ District commander __ Group leader __ Member of a group
Initial of the person interviewed: Initial of the interviewer: Thank you very much for your kind cooperation.
Annex V
Interviews with Taliban Members on the Layeha
#01 M. from Helmand, mahaz 1 leader, collected by author and assistant in November 2012 #02 C. from Kunar, mahaz leader, member of military commission: col- lected by author and assistant in November 2012 #03 Qari Yousuf Ahmadi (spokesperson): collected by author and assistant in November 2012 #04 W. from Helmand, simple fighter: collected by author and assistant in November 2012 #05 Q. from Kandahar: collected by assistant H. of an international press agency in December 2012 #06 Q. from Kunduz, mahaz leader: collected by assistant H. of an interna- tional press agency in December 2012 #07 W. from Uruzgan, simple fighter, member of 20 people: collected by assistant Q. of an international press agency in December 2012 #08 Zabiullah Mujahid (spokesperson) for Central and Eastern region: col- lected by assistant H. of an international press agency in December 2012 #09 H. from Helmand, simple fighter: collected by assistant Z. in April 2013 #10 I. from Uruzgan, simple fighter: collected by assistant Z. in May 2013 #11 A. from Zabul, simple fighter: collected by assistant Z. in July 2013 #12 F. from Nooristan (but usually residing in Chaprehar district of Eastern Ningrahar province), mid-level commander: collected by assistant Z. in August 2013
NB: Not all questions were answered systematically by the respondents. Some questions were provided with irrelevant answers. 168 ANNEX V
Q1. Have you heard of the Layeha and if yes, how? #01 M. from Helmand A1. We always carry the Layeha with us. All the articles of the Layeha stem from the Qur’an and Hadith. Even a small group of Taliban, even a leader of five people, have the responsibility to carry the rules with them and to work under the Layeha. We usually receive the latest publication of Layeha very quickly particu- larly in the South. In other provinces, which are hard to reach, it takes one to two months to distribute the Layeha. The Layeha is our platform, it is like the constitution for us. There are commissions, which keep an eye on the implementation of the Layeha. In each group of Taliban, there is at least one person who can read but I would say most of the people can read. So, it is impossible that the Taliban do not have access to the Layeha. We follow the current Layeha until we get the new one. Until now, there have been only small changes after each revi- sion of the Layeha. (E.g. there are two new articles in the current Layeha. The last one had 20 and now there are 22, for example.) The Amir is in a secret place, so it is hard for us to receive direct orders from him. If we have to face an issue, we cannot ask our leadership nor Bukhari Sharif (Sunnah) for guidance. This Layeha is in our court, district office and province office. No-one can do anything against the Layeha.
#02 C. from Kunar A1. (Initially answered under Question 6) If a new Layeha arrives, a group is formed and we teach the illiterate Taliban.
#03 Qari Yousuf Ahmadi (spokesperson) A1. The Layeha is very important for the Mujahideen. Wherever he may be in the country, if a single fighter operates, he needs to conduct operations under the rules of Layeha. The Layeha is made under the Sharia Law and is a short explanation of the Sharia law. We all want the Mujahideen to follow the Sharia law and to avoid spontaneous action. This is also a law, which is made up of Muslim rules and regulations. The Mujahideen leadership wants the Layeha to be distributed everywhere in the country and everyone must respect it, whether young or old Mujahid, whether a commander or a district governor. The Layeha should reach all individuals.
#04 W. from Helmand A1. I know the Layeha and I understand what the Layeha is all about. ANNEX V 169
#05 Q. from Kandahar A1. Yes, I have heard of the Islamic Emirate of Afghanistan’s Layeha through short courses and frequently-held religious sessions.
#06 Q. from Kunduz A1. Yes, I have heard of the Layeha. I received it verbally and in text. I have also heard of it in the clerics’ sessions held inside and outside the country.
#07 W. from Uruzgan A1. Yes, I have heard of the Layeha of the Islamic Emirate of Afghanistan. We were given the Layeha last year in printed form.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A1. If you mean the Islamic Emirate of Afghanistan’s Layeha, yes, I know it. It is about the Jihad procedure of operations for the Islamic Emirate of Afghanistan, based on Islamic orders and Afghanistan’s national inter- ests. The Layeha was distributed to every person who is a Mujahedeen, so all orders for their actions are based on that. The Layeha was printed in a pocket-book size and distributed to every Mujahedeen.
#9 H. from Helmand A1. I know what the Layeha is and the booklet helps us in our operations in making easy decisions, such as what to do and what not to do. I get the Layeha as a small book and if the Layeha is added to by more provisions we will get them on a few sheets of paper. A booklet does not come for every fighter, sometimes they (the leadership) send a few copies to a group of ten. The fighters also try to educate civilians about their Layeha, so they sometimes distribute the copies among civilians too. I also have a copy of the Layeha or have studied it with a friend.
#10 I. from Uruzgan A1. We have almost every new Layeha when it gets published and distributed. Each province has a governor; each district has a district chief and several commissions. There is a system of distribution and upon issuance of the new Layeha, the governors are responsible for sending them to the districts, and then the district governors are responsible for distributing them to the fight- ers. Not all fighters need to have a copy individually but at least the group needs to have one Layeha. The group leaders must be in contact with the respective district governor and the leaders must know what the fighters are doing. 170 ANNEX V
#11 A. from Zabul A1. I cannot read and I learn all the contents of the Layeha from my com- mander whenever a new Layeha is published.
#12 Z. from Nooristan A1. Yes, I have a copy of the Layeha from 2009 and the latest one, but I do not remember when the third one was published. For my group of 15 people, I have received five copies of the Layeha. On various occasions I organize short training sessions at least twice a day for about a week with all my fighters. During the sessions I divide the group into those who can read and others who [can’t and] need to listen. Then the four people who have the copy are responsible for two more people to teach the Layeha in detail and keep an eye on them in case of any possible violation of the rules. I think the Layeha is a perfect road map for all of us. I have heard that those Mujahideen who could not get a copy of the Layeha for some reasons had difficulties during their operations.
Q2. If yes, which Layeha have you heard about? (2006, 2009 or 2010 version?) #02 C. from Kunar A2.We have not received any new Layeha for the last two years. Since sum- mer this year, the number of fighters increased so I have received 20 more copies, which I have distributed to the Mujahideen.
#05 Qari Yousuf Ahmadi (spokesperson) A2. I have heard of all the three Layehas, and I think the Layeha 2010 is better, because it contains more issues.
#06 Q. from Kunduz A2. I have heard of all the three Layehas and I know all of them.
#07 W. from Uruzgan A2. I have heard of all the Layehas, but I have only the 2010 with me.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A2. I have heard of the 2010 Layeha, and I have full information about that. This is a comprehensive Layeha and is more valid. ANNEX V 171
#09 H. from Helmand A2. I have got the Layeha for 2009 and the years after that.
#11 A. from Zabul A2. I do not know which year’s Layeha I learnt about, but I have learnt all the rules and articles of the three different Layehas so far.
#12 F. from Nooristan A2. I have a copy of the Layeha from the years 2006 and 2009 and the lat- est one but I do not remember when the third one was published. (Same as A1)
Q3. Do you think the Layeha must be respected? And if so, why? #01 M. from Helmand A3.We follow the Layeha strictly. Just recently, there was an Afghan Local Police (ALP) commander who surrendered to the Taliban and according to the Layeha we told him, “If you have committed crimes against the Afghan civilians and the Afghans want to prosecute you in the future, we cannot guarantee your safety because it is the right of the Afghans to prosecute you. However, we forgive you for having fought against us.”
#02 C. from Kunar A3.The Mujahideen are strictly following the Layeha because it was issued by Amir ul-Momineen. The real Mujahideen respect it but the looters do not care about the rules. We respect every article of the Layeha because it is - according to the Qur’an and Hadith - our Amir passed it - religious scholars worked on it; but mostly we respect it because the source is from the Qur’an. If the Amir says something against the Qur’an we will not accept it.
#04 W. from Helmand A3.There are many Islamic aspects in the Layeha. The most important thing is to respect and seek the security of the Afghan people. The Layeha follows the rules of Islam. We are all Muslims, we are all brothers; we have one religion so we need to follow the Islamic rules and reg- ulations. The Layeha should be respected because it is a directive of Islam. 172 ANNEX V
Even if the Layeha comes from Loi Mullah Sab (the Great Mullah), he cannot order anything against Islam. This is the reason why we must obey. If you want to serve the religion, you must follow the Layeha and those who do not follow the Layeha should be punished.
#05 Q. from Kandahar A3. Sure, every member of the Islamic Emirate of Afghanistan has to respect the Layeha, because this is actually a procedure and a guideline for the Mujahedeen (freedom fighters).
#06 Q. from Kunduz A3. Yes, it must be respected. Because it is based on the holy Qur’an and has been prepared by Amir ul Momineen.
#07 W. from Uruzgan A3. Yes, because it helps to maintain discipline of the Mujahideen in order to win each battle and each war. It is a way of life for us to wage Jihad.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A3. The Islamic Emirate Layeha must be respected due to different aspects:
1. This is based on Islamic Sharia orders and we do our best to implement Sharia orders. 2. It is issued by Amir ul Momineen (Mullah Omar) and we have to obey his orders according to Sharia. 3. The Mujahedeen will be more disciplined by respecting the Layeha, which is a necessary matter and the Mujahedeen’s victory depends on their discipline.
#9 H. from Helmand A3.The Layeha comes from our leaders and most importantly, it is the order of Amir Mullah Omar, therefore it must be respected and followed. Also, the Layeha must be respected because it is according to Islamic law and tells you to treat people according to the Qur’an.
#10 I. from Uruzgan A3. Since the Layeha comes from Amir ul-Momineen, we have to respect it strictly and accept the orders as wajib (obligatory). Our leader does not send any order against Islamic law and the Sharia. He cannot order anything, ANNEX V 173 which is outside of Sharia law, so if we respect the Layeha it implies that we respect our religion and our leader.
#11 A. from Zabul A3. For Muslims the most important thing is religion and obeying the orders of the leaders. The Layeha is made by our leaders and what the Layeha says is all taken from the Holy Quran.
#12 F. from Nooristan A3. The Layeha is in line with our religion. We are waging Jihad for the sake of Almighty Allah; Allah told us to fight against invaders and non-believers so the Layeha also follows what Allah says. Also, if you are sworn to obey all the orders of Amir ul-Momineen then you simply have to obey them; no Muslim can deny orders of those leaders to which they have sworn obedience.
Q4. According to you, which rules need to be respected the most? #01 M. from Helmand A4. First is the support for Amir ul-Momineen. Second is to establish a good reputation of behavior among the population. Third is to forgive govern- ment personnel who surrender to the Taliban.
#02 C. from Kunar A4. If we arrest someone, we cannot make any decision by ourselves and if we are embroiled in a personal dispute with the person we cannot harm him. First, we have to consult the Layeha and then make a decision. If a Mujahideen fighter has a problem with somebody, he can easily accuse the person of spying and then beat and kill him. (In order to prevent it), the Layeha has established clear rules, such as the obligation to have witnesses.
#05 Q. from Kandahar A4. First of all the holy Qur’an must be respected. Secondly, the Holy Prophet’s sayings (hadith) and then the Islamic Emirate’s Layeha need to be respected, because all chapters and articles follow the orders of the Holy Qur’an.
#06 Q. from Kunduz A4. The Islamic rules must be respected, because they help you to gain suc- cess in both the worlds. 174 ANNEX V
#07 W. from Uruzgan A4. The Qur’an and the Prophets’ sayings should be respected. Every Mujahideen is a Muslim and Islam should be the main centre of the Mujahideen life. There are also rules about how to fight a war and what to do and what not do in a battle, like protecting civilians.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A4. All the regulations and orders contained in the Islamic Emirate’s Layeha must be respected. The rules are endorsed by Islam and must be respected because they are for the benefit of the human being as determined by Almighty God
#9 H. from Helmand A4. The important points of Layeha, which I like and must be respected, are that you cannot put explosives in civilian places; you must be careful not to harm civilians during fighting; and when a government soldier surrenders then you should spare his life and buy his gun and his military equipment. If the soldier wants to join the Mujahideen (Taliban) and fight he should go home for a month, after which he can join the fight. Even after that, he must be under serious observation and not be given authority for a while until trust is built.
#10 I. from Uruzgan A4. I like every single phrase of the Layeha and all of them are beneficial to our activities as well as our people. It makes clear to us in deciding what to do and what not to do. For example, the Layeha tells us to fight the non- Muslim invaders and to sacrifice ourselves to liberate our country.
#11 A. from Zabul A4. I like all the contents of the Layeha, especially the latest one, which was sent to us in a letter and said it is an attached part of the last Layeha. The letter orders all Mujahideen Taliban fighters to be very careful about civilians and that civilians should not be harmed in the fight.
#12 F. from Nooristan A4. I think all the articles must be respected; at the beginning it tells us to be good Muslims, and to commit ourselves to activities to become a good Muslim, such as praying, fasting, not lying, eating Halal things, not using drugs etc. As for military operations, the Layeha tells us all those good points to keep in mind during the fight. ANNEX V 175
Q5. If you see that your colleagues are not following the rules, what do you do? #01 M. from Helmand A5. If a Taliban does something against the Layeha his act will be examined. If he commits a big crime he will be punished. If he commits a small mistake in violation of the Layeha, he is told not to repeat it. In Helmand, there are twelve Taliban fighters who are currently in the Taliban prison. Out of the twelve, three are from Sangin district, and four from Now Zad district, including one shadow district governor, who did something against the Layeha and is currently in jail. There is also one com- mander who is from Kajaki district. He was a powerful commander but he had kidnapped a person from the area and had released the person for ran- som. This case came under investigation and he was found guilty for having violated the Layeha and now he is in the same prison. There is another guy by the name of H. and another fighter by the name of M. – both are in prison.
#02 C. from Kunar A5.Those who do not respect the Layeha are prosecuted. They are sent to prison or beaten under Sharia Law. If his guilt is bigger, then his hand is cut off. Last year, there was a group of Mujahideen along the road. Another group of Mujahideen stopped them and engaged them in a fight over territory. As a punishment 15–20 people (from both sides) were sent to jail.
#03 Qari Yousuf Ahmadi (spokesperson) A5. The Mujahideen respect the Layeha in a disciplined way. Every fighter tries to respect and implement the Layeha because the Layeha takes it source from Islamic rules (religious Directives din larkhod ). Every Mujaheed tries to follow it in all his activities in his life. If a fighter mistakenly violates a rule, he is told not to do it again, but if he continues repeatedly, then we imple- ment Sharia law.
#04 W. from Helmand A5. So far, I have not seen anybody punished.
#05 Q. from Kandahar A5. Such incidents rarely take place, because everyone in the Islamic Movement of the Taliban is committed to the rules, particularly the Layeha; but if I see a colleague not following it, I first talk to him and convince him to follow it. If he repeats the violation, I report him to the haiat (commis- sioners) and the special tribunal will decide how to punish him. 176 ANNEX V
#06 Q. from Kunduz A5. If our colleagues do not follow the rules, we do not recognize them as members of the Islamic Emirate of Afghanistan. Firstly, we try to correct them verbally, and if they do not correct themselves, we report them to our superior and the haiats (commissioners). For example, one of our colleagues made a civilian carry his weapon and ammunition. We made him understand not to repeat such actions but then he ordered another family to make his favorite meal. We had to fire him from Mujahideen because we are not allowed to force people to do our work, according to the Layeha.
#07 W. from Uruzgan A5. I have not seen that. If I saw it, I would report it to my commander.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A5. In the case of violation of the Layeha, special tribunals and commissions take legal steps against the violators. The violator is punished according to the level of violation. I cannot name the punished ones or mention special cases (because it is too sensitive).
#9 H. from Helmand A5. The Layeha tells us that if you find any fighter doing wrong or bad things or you find out that he was cruel in the past then he must be disarmed and sent home. If a Talib does not follow the Layeha, he is treated according to the rules and will be punished according to his guilt. The order is absolute and must not be ignored. If the guilt is big, the person is punished or jailed and then dismissed from the Taliban lines. Personally, I have seen many times that a Mujahid fighter was not follow- ing the rules and he was sentenced to jail, punished or disarmed. Once there was a Taliban checkpoint in our (Taliban-controlled) area and a car passed without being checked. Accordingly, the fighter was punished with short detention. The other night, a civilian spent a night in a Taliban checkpoint since he was a friend of the Taliban fighter in charge of the checkpoint. The fighter was also sent to jail for a month, disarmed and then sent home.
#10 I. from Uruzgan, simple fighter A5. There are very a few cases where Mujahideen do not obey the rules fully; nearly all of them are following the rules. If someone commits a small mistake, he is told not to repeat it, but if he repeats small mistakes he is disarmed and sent home. If someone commits a big mistake then he is ANNEX V 177
punished, imprisoned, beaten or even receives death penalty if he had killed many innocent people. However, I have not seen anyone who was found guilty of not following the rules. I heard that spies had sneaked into the Taliban lines in order to cause problems for the people and to undermine support for the Taliban. Some other people independently started a group under the name of Taliban to commit crimes, loot and beat the common people. These people are arrested, punished and disarmed.
#11 A. from Zabul, simple fighter A5. I am not responsible for keeping an eye on my fellow fighters whether they follow the Layeha or not, but if I see someone who is not following the Layeha then I try to remind him of this fact. If my colleagues commit a big mistake then I talk to their commander about this problem. So far, I have not witnessed any severe punishment for committing a mistake. People commit mistakes during prayer, so a few times it happened that our friends made mistakes [inadvertently]. Eventually, all of them were solved through talks and the mistakes never happened again.
#12 F. from Nooristan I did not see any of my friends having committed a big mistake or seri- ous violation of the Layeha, but a few times I have seen my friends forcing people to feed them, to accommodate them or to hand out money. Two of them continued despite warnings and they were eventually disarmed and discharged from the group. Right now, around ten of the fighters are in Taliban prisons and their cases are being processed. They have said to have committed various kinds of crimes and if they are found guilty they will face punishment.
Q6. In general, do fighters from the Mujahideen times (against the Soviet Union) tend to respect the Layeha more than the younger generation? #01 M. from Helmand A6. There are different people. The new generation follows the Layeha very strictly because they are young and they have more patience and zeal to fol- low the Layeha. The older generation, who fought the Russians, are tired and they do not have the patience. So they ignore the rules more often.
#02 C. from Kunar A6. All members respect the Layeha including those who fought the Russians as well as the new Qari (who are very educated). If an illiterate Talib commits 178 ANNEX V a mistake, we forgive him and he is told not to repeat it. He is asked to say toba.
#04 W. from Helmand A6. The religion is for all of us. It does not mean that the younger ones should obey more than the older ones. Everyone should respect the Layeha equally.
#05 Q. from Kandahar A6. I don’t see a big difference between the older Mujahideen who fought against the Soviet Union and the younger generation now fighting the US and its allies – invaders of their faith. In my view, they both equally respect the Jihadi rules, in particular the Layeha.
#06 Q. from Kunduz A6. The younger generation (of the Taliban’s Islamic Movement) respect the Layeha more.
#07 W. from Uruzgan A6. Everyone respects the Layeha, whether old Mujahideen or new Mujahideen.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A6. It is necessary to respect the Layeha. All the Mujahideen know this because they were told to respecting the Islamic rules. Every Mujahideen, including those who fought against the Soviet Union, as well as the younger generation equally respect the Layeha. The violation rate is very low.
#9 H. from Helmand A6. All Taliban try to follow the rules, whether young or old. Anybody who violates the rules gets punished and there is no exception.
#10 I. from Uruzgan A6. The Layeha is followed and respected by all Taliban, be they the older generation who fought the Russians, or the new one. Everybody respects it, because respecting the orders of the Muslim leader and respecting the Islamic laws is our duty. This is an order from Almighty Allah. ANNEX V 179
#11 A. from Zabul A6. Newcomers and young men sometimes forget about the Layeha and commit violations of the Layeha, because they are emotional and stubborn. Those who have been fighting for a long time have the patience and decide to act after thinking, contrary to those young men. For example, once in Zabul a group of Mujahideen was walking towards a certain destination. When one young man came across an enemy convoy he suddenly ran towards the convoy and started to shoot. This attack was not planned, and he put the lives of all of his other colleagues in danger. Soon the enemy helicopters arrived and attacked the group killing seven fighters. The man who attacked the convoy was also killed.
Q7. Why do you sympathize with the Islamic Emirate of Afghanistan? #01 M. from Helmand A7. The positive thing is that in the Islamic Emirate people enjoy their rights, women are safe from attack and there is no threat to the lives of the people. Nobody can break the Islamic rules in this country. Right now, the rights of the Afghans are not guaranteed. Afghans have seen many times that they have a patient in the car and they cannot transport him quickly to the hospi- tal because of military convoys blocking the road. He dies on the way. They do not have the freedom to live. (Answered under Q.6) A few weeks ago I was in Kabul to welcome the release of our friend from Bagram. While guarding my friend during the night and I peeked out of the window and gazed at the city. I started to cry: look at this city under the occupation of the foreigners. If Sharia law were truly implemented everyone would live as a Muslim and would enjoy the rights Islam has accorded to them. Everyone would follow the Qur’an and hadith . When they die, the Almighty will not ask them about their knowledge of technology but he will ask how much they have followed Islam.
#02 C. from Kunar A7. I fought the Russians for eight years. I am a Muslim and I cannot ignore the presence of non-Muslims. My faith does not accept it. So I even left my home in the village, took my family to the mountains and started Jihad because it is a fard (religious duty) to wage Jihad.
#04 W. from Helmand I did not want to give up my religion. My religion tells me to support those who are against the invaders. 180 ANNEX V
#05 Q. from Kandahar A7. Everyone knows that our country has been invaded by the infidel troops for a decade. Islamic values are trampled on by the invaders. They disgrace the holy Qur’an, our Prophet and our Islamic culture. I recognize the Islamic Emirate as a movement, which struggles to re- establish an Islamic system in the country. Thus, I sympathize with the Emirate.
#06 Q. from Kunduz A7. I sympathize with the Emirate because they fight a holy war and fight a corrupt government. The Emirate wants to establish an Islamic government by fighting the foreign invaders.
#07 W. from Uruzgan A7. Because I am fighting for freedom of my motherland, which is under the control of infidels and imperialists. I also sympathize with them (the Taliban) because they stand for the Islamic cause and I want Afghanistan to be an Islamic state.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A7. As you well know, Afghanistan has been invaded by the US and its allies for 11 years. The real Islamic government, which was the expression of 1.5 million martyrs, was attacked by the US (in 2001). We lost all our honor, properties, lives, security and religious freedom as the result of the invasion. So, we have to launch Jihad to regain our lost values. The Sharia orders us to launch Jihad once our homeland is invaded by the infidels and not hand over our weapons till the removal of obstacles has been achieved. Therefore, we have to continue Jihad based on this religious obligation. The Jihad is carried out within the framework of rule and order. We continue Jihad under the Islamic Emirate umbrella and we have chosen the Emirate as the body, which secures our religious desires.
#09 H. from Helmand A7. When Karzai started to rule, we began to face problems because I and my family wore the same dress as the Taliban like the turban and other items. The government people blamed us for being Taliban or being affiliated with the Taliban. That’s why I was forced to become a Taliban fighter. The government people and foreigners also killed a lot of civilians in my district and destroyed homes and farms, which motivated many people, including me, to join the Taliban. ANNEX V 181
The government is supported by non-Muslims whereas the Taliban follow the Islamic system, this is why I like the Taliban and joined them.
#11 A. from Zabul A7. The main reason I fight the foreigners and Afghan soldiers is that it is a Holy War. Why did I join the Taliban many years ago? 2 Because they were against all those who were violating the Islamic rules, and the Taliban were the ones who put an end to the civil war. [At that time] there were many armed groups, innocent people were killed, women abused and their belong- ings looted. So the Taliban fought them and took power but now it is a clear invasion by foreigners and it is a Holy War.
#12 F. from Nooristan A7. This is a Jihad and every Muslim must take part. Since the Taliban is the big- gest group leading the Jihad against foreign invaders, I have joined the group.
Q8. According to you, in which aspect is the Islamic Emirate of Afghanistan superior to the central government? #01 M. from Helmand A8. There is also complete peace in the Taliban-controlled area. Everybody feels safe there. In the last year of the Taliban rule, Amir Khan Mutakhil said that the Madrassas were booming and that many people were coming to Madrassas to study under the Taliban. During that (Taliban) time, all roads to Kabul were bumpy but even during the night, people could travel with cars full of money. People were bringing money in bags in the middle of the night, but now, businesses and shopkeepers get looted even during daylight. (Q: What about job opportunities, schools and health services?) The Taliban are still fighting and have to pay a lot for the fight. That’s why the Taliban cannot offer job opportunities, health and other services.
#02 C. from Kunar We don’t care about the facilities (comforts of life); we just care about reli- gion and the day of justice. Every minute we think about the possibility of getting killed. During the Emirate there was complete security in the coun- try. Nobody was corrupt. In my valley there were no looters.
#04 W. from Helmand A8. What positive aspect of the Islamic Emirate do you see? If the foreigners are gone, the Taliban and Mujahideen will come together and build schools 182 ANNEX V and madrassas but (this happens) only if the foreigners are gone. We will build the country as it is needed.
#05 Q. from Kandahar A8. The Islamic Emirate of Afghanistan fights for freedom. It struggles to re-establish a pure Islamic government in an Islamic country with more than 99 per cent Muslim population. The Emirate also makes efforts to ensure security, create jobs so that people can earn a halaal (permitted according to Islam) livelihood and prevent corruption, a big sin in Islam.
#06 Q. from Kunduz A8. In my view, the Islamic Emirate of Afghanistan is superior to the Kabul administration in the fields of Islamic system, eradication of corruption, solving disputes, and many other issues.
#07 W. from Uruzgan A8. Because the central government is not Islamic in contrast with the Islamic Emirate of Afghanistan. There is no Sharia in Afghanistan except in villages under the control of Mujahideen. There is justice in those areas, and there is no corruption. In the government-controlled areas, there is so much c orruption.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A8. The Islamic Emirate of Afghanistan reflects the desire of our 1.5 million martyrs. It implements God’s will on earth. The Emirate really protects the independence of our country. The Kabul administration was born after the invasion of our country. The supporters of the Kabul administration are slaves of the US and Western intelligence services. This administration was never accepted by the people who had produced 1.5 million martyrs and a lot of suffering and refugees. The Kabul administration is useful only for the US and those who are here to loot our resources.
#09 H. from Helmand A8. Every person benefits from legal service in a correct way according to the Sharia law and everyone is satisfied with it. The Taliban solve their disputes and problems through religious scholars. In the (Karzai) government, there are neither honest nor academic religious scholars, who obey and follow the Sharia law. Secondly, the Taliban are known for bringing security. For exam- ple, in an area where just two Taliban members show up for a short time, the ANNEX V 183 looters disappear and nobody can knock on anybody else’s door with mali- cious intentions. Everything is peaceful but in the government-controlled area, a lot of crimes are happening.
#10 I. from Uruzgan A8. Everyone knows that the Taliban are well placed to bring peace and rule of law in the country. There is no other rule in the world where people can travel safely at midnight. Nobody steals money since Islamic laws provides that thieves would have their hands cut off if captured. During the Taliban time we were also able to stop poppy cultivation in Afghanistan by just one written order from the Amir. Now the current Karzai government tries every option, even with a lot money and support from the world, but he does not succeed. We also support education and try to provide health facilities but for now, we do not have enough time for that, because we still need to concentrate on fighting.
#12 F. from Nooristan A8. I do not want to talk about the good aspects of the Taliban Emirate and Afghan Government because everyone knows what they are.
Q9. According to you, in which aspects is the Central Government superior to the Islamic Emirate of Afghanistan? #01 M. from Helmand A9. Yes, there are many roads and clinics but mostly it is for their own inter- est and it is not for the Afghans. We do not see any goodwill for other people. (Question: but Afghans also use the schools?) No, in schools they preach Christianity under the pretext of bringing development to Afghanistan. If a school or a clinic is not involved in reli- gious (Christian) activities, our Layeha tells us not to harm them; but it also happens that the Mujahideen arrest a person working in a school or clinic and they admit that they were sent by France, Denmark or Italy to work for them. The phone poles are also a problem for us. In some places, this does not create problems but in other places they are used for spying. That is why the Taliban attack them sometimes.
#02 C. from Kunar A9. For a Muslim, the most important thing is to save for the day of jus- tice. As for life’s facilities, the government provides roads and schools, but 184 ANNEX V unfortunately there is no Sharia law in the country. They are not doing anything for the day of justice. I hope that Sharia law is implemented in the country. If everyone had a beard, we would all be brothers.
#04 W. from Helmand A9. Karzai did nothing for the people. Yes, there are more roads and clinics but Islam is neglected.
#05 Q. from Kandahar A9. The Kabul administration is not superior to the Islamic Emirate. This is a US puppet administration, which has been established to obey Westerners’ orders and extend moral and administrative corruption within Afghanistan. The Kabul administration is supporting the US anti-Islamic plans and pro- grams: that is not acceptable for our Muslim and faithful people.
#06 Q. from Kunduz A9. The Kabul Administration is by no means superior to the Islamic Emirate.
#07 W. from Uruzgan A9. Central government is not superior to the Islamic Emirate of Afghanistan. They live inside concrete walls and barbed wire. We ride openly on roads. We are not afraid. We are morally superior and they are corrupt.
#08 Zabiullah Mujahid (spokesperson) for Central and Eastern region A9. By no means is the Kabul administration more superior to the Islamic Emirate. Niceties, such as education, public health, resolving legal dis- putes, creating jobs, maintaining relations with the (invader) community, and other bluffs cannot deceive the Afghans. We are a Muslim nation; what matters is to implement Islamic rules. We do not see improvements in education, public health, security, legal dispute settlement or job cre- ation. Only a few of those who support the invasion became complicit in selling the country, while the rest of the nation is in pain. A number of urban people may enjoy the invasion, but the rest of the country is suf- fering from invasion and bombardment. All the pious people are in jail. Those who are the real representatives of the people, share their pains and are losing their lives and properties, and are called terrorists. The Kabul administration is despised by our people and only apostates support this puppet government. ANNEX V 185
#09 H. from Helmand A9. The government and foreigners did not do anything good for the people in the district. There was an old school building in my area but they (the Karzai government) destroyed that, so why should our people support such a government? Our people say that they do not benefit from development projects or they even get killed. That’s why everyone hates the government. Some parts of Afghanistan might get developed but often local governors come here and ask tribal leaders what kind of development or rebuilding projects are needed. In the end, they do nothing for us.
#10 I. from Uruzgan, simple fighter A9. Everyone knows that the current government does a lot regarding edu- cation, health and paving roads and we also support these activities. Doctors, engineers and teachers can always come to our area and we do not bother them; we even try to help them.
#11 A. from Zabul (answer to question #1) A9. What does democracy represent for non-Muslims? The constitution of the Afghan government tries to enforce a Western democracy of the Kafirs: Should we allow women to walk naked on the streets? Are sons and daugh- ters free to disrespect their parents? Can a wife go and sleep with anyone and her husband be unable to say anything? That completely runs against Islam. (Answer to question #9) In short, I say that all the rules and aspects of the Islamic Emirate are superior; there is no doubt about it. If there was anything wrong with the Emirate or if they did not follow the Islamic rules, I would quit right now. (As for the positive aspect of the Afghan government) they have done nothing for the well-being of the people; the constitution is bad and un- Islamic; the government is not Islamic; roads they built are just for the activities of the foreign and Afghan forces for better access; and education is un-Islamic as everyone is now trying to learn English to have better jobs while they have forgotten about the Quran. So they do nothing positive.
Q10. In which province and district do you fight? Information with the author.
Q11. Which level of the movement did you occupy? See above.
Notes
1 Introduction 1 . For interplay between international relations and commitment to law, see Anne-Marie Slaughter, “International Law in a World of Liberal States,” The European Journal of International Law, 6 (1995); and “International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship,” American Journal of International Law, 92 (3), (1998); and E. Hafner-Burton et al., “Political Science Research on International Law: The State of the Field,” American Journal of International Law, 106 (1), (2012). 2 . Alison Brysk, “From Above and Below: Social Movements, the International System, and Human Rights in Argentina,” Comparative Political Studies, 26 (3), (1993); Margret Keck and Kathryn Sikkink, Activists beyond Borders. Transnational Advocacy Networks in International Politics , Ithaca, NY: Cornell University Press, 1998; A. M. Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms, Princeton, NJ: Princeton University Press, 2001. 3 . E. Hafner-Burton and K. Tsutsui, “Human Rights in a Globalizing World: The Paradox of Empty Promises,” American Journal of Sociology, 110 (5), (2005); Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, New York: Cambridge University Press, 2009; John A. Simmons and Richard Nielsen, “Rewards for Ratification: Payoffs for Participating in the International Human Rights Regime?” International Studies Quarterly, 59 (2), (2015). 4 . Philip Alston and James Crawford, The Future of UN Human Rights Treaty Monitoring , New York: Cambridge University Press, 2000; Ryan Goodman and Derek Jinks, “Measuring the Effects of Human Rights Treaties,” European Journal of International Law, 13 ( 2003). 5 . See, for example, Jan Klabbers, “(I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors,” in Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, ed. Jarna Petman and Jan Klabbers, Leiden/Boston: Martinus Nijhoff, 2003; Andrea Bianchi, “Relativizing the Subjects or Subjectivizing the Actors: Is that the Question?” in Non-State Actors and International Law , ed. Andrea Bianchi, Geneva: Ashgate, 2009; Alan Boyle and Christine Chinkin, “Participants in International Law-Making,” in The Making of International Law, ed. Alain Boyle and Christine Chinkin, Oxford: Oxford University Press, 2007. 188 NOTES
Among the definitions of NSA, the one by Oran Young is often cited: “Any organized entity that is composed, at least indirectly, of human beings, is not wholly subordinate to any other actor in the world system in effective terms, and participates in power relationships with other actors.” This definition, however, focuses on NSAs with global outreach and is silent about the type of influ- ence. Instead, the widest possible definition is adopted here: “NSAs are non- sovereign entities that exercise significant economic, political, or social power and influence at a national, and in some cases international level,” proposed at the National Intelligence Council (Federation of American Scientists)–Eurasia Group Seminars 2006/2007 (Conference Report, August 23, 2007). 6 . For NGO, see Bosire Maragia, “Almost There: Another Way of Conceptualizing and Explaining NGO’s Quest for Legitimacy in Global Politics,” Non-State Actors and International Law, 2 ( 2002). 7 . The absence of an official definition for NSAs, much like for ANSAs, is not surprising. Nevertheless, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) proposes a useful working definition as follows: “Any organized group with a basic structure of command operating outside state control that uses force to achieve its political or allegedly political objectives.” DCAF and Geneva Call, “Armed Non-State Actors: Current Trends & Future Challenges,” DCAF Horizon 2015 Working Paper, Geneva, 2011, pp.15–19. At the same time, DCAF advocates the inclusion of private security, crime groups, militia, and gangs as a new category of ANSAs. Along the same lines, Schneckener and Hofmann’s definition best captures this broad scope of ANSAs, and according to their definition, ANSAs— are willing and capable of using violence for pursuing their objectives; are not integrated into formalized state institutions, such as regular armies, presidential guards, police, or special forces; and possess a certain degree of autonomy with regard to politics, military opera- tions, r esources, andi nfrastructure. Ulrich Schneckener and Claudia Hofmann, “Engaging Non-State Armed Actors in State and Peace-Building: Options and Strategies,” International Review of the Red Cross, 93 (883), (2011). State-sponsored or progovernment militia and transnational terrorist groups are also included in this definition, and it does not make territorial control over a specific geographic area a mandatory criterion in contrast with other definitions. The other question is whether political motivation or ambition for sovereignty should be a constitutive element for ANSA. The academic focus of ANSA is usually on politically motivated actors, but an objective classifica- tion of ANSA based on motivation seems to be difficult, given the subjec- tive nature of the proclaimed objective. ANSAs may have political objectives but also resort to criminal activities for fund-raising, to the extent that the distinction between political ANSAs and criminal groups becomes blurred. It would, thus, be safe to adopt the widest possible definition of ANSA in the absence of any convincing criteria, which would exclude purely criminal groups. For a discussion, see Sukanya Podder, “Non-State Armed Groups and Stability: Reconsidering Legitimacy and Inclusion,” Contemporary Security Policy, 34 (1), (2013); note 1; Marco Sassoli, “Transnational Armed Groups and International Humanitarian Law,” Programme on Humanitarian Policy and Conflict Research, 6 (2006); Veronique Dudouet, “Mediating Peace with NOTES 189
Proscribed Armed Groups,” USIP Special Report, 239 (2010); Dennis Rodgers and Robert Muggah, “Gangs as Non-State Armed Groups,” Contemporary Security Policy, 30 (2), (August 2009). 8 . See last chapter for discussion. 9 . Veronique Dudouet, “From War to Politics—Resistance/Liberation Movements in Transition,” Berghof Report , Berlin, 2009, p.8; Claudia Hofmann, “Engaging Non-State Armed Groups in Humanitarian Action,” International Peacekeeping, 13 (3), (September 2006), p.397. 10 . For example, Common Article 3(2) to the Geneva Conventions reads: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” 11 . Laws of Armed Conflict and International Humanitarian Law (IHL) can be used inte rchangeably. 12 . For various arguments, see Geneva Academy, “Armed Non-State Actors and International Norms: Towards a Better Protection of Civilians in Armed Conflicts,” Summary of Initial Research and Discussions during an Expert Workshop in Geneva in March 2010 , Geneva Academy, 2010, p.4; Hans-Peter Gasser, “Acts of Terror, ‘Terrorism’ and International Humanitarian Law,” International Review of the Red Cross, 84 (847), (2002); Cedric Ryngaert, “Non-State Actors and International Humanitarian Law,” Working Paper , Katholieke Universiteit Leuven Faculty of Law, Leiden, 2008; International Institute of Humanitarian Law, “Non-State Actors and International Humanitarian Law. Organized Armed Groups: A Challenge for the 21st Century,” XXXII Round Table, Sanremo, 2009; Michel Veuthey, “Le rô le des acteurs non- é tatiques dans le respect du droit international humanitaire,” Annuaire Francais de Relations Internationales, X( 2009). 13 . See, for example, paragraph 6 of UN Security Council Resolution 1674 (2006) on Protection of Civilians, which “demands that all parties concerned comply strictly with the obligations applicable to them under international law, in particular those contained . . . in the Geneva Conventions of 1949 and their Additional Protocols of 1977 [italics added].” See also preamble of UN Security Council Resolution 1882 (2009) on Children and Armed Conflict, which calls “on all parties to armed conflicts to comply strictly with the obligations applicable to them under international law for the pro- tection of children in armed conflict [italics added].” For the role of UN Security Council in relation to the application of IHL and human rights to NSAs, see A. Constantinides, “Human Rights Obligations and Transnational Corporations: The Limits of Direct Corporate Responsibility,” Human Rights and International Legal Discource , 2010. 14 . Option of naming and shaming discussed in Claude Bruderlein, The Role of Non-State Actors in Building Human Security—The Case of Armed Groups in Intra-State Wars , Geneva: Center for Humanitarian Dialogue, 2000, p.16. 15 . Marco Sassoli, “Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law,” International Humanitarian Legal Studies, 1 (2010), p.28. 16 . Geneva Academy, “Armed Non-State Actors and International Norms.” 17 . Frederick Rawski, “Engaging with Armed Groups: A Human Rights Field Perspective from Nepal,” International Organizations Law Review , 6 (2009), p.15. 18 . Sassoli, “Taking Armed Groups Seriously,” p.45. 190 NOTES
19 . Sassoli, “Transnational Armed Groups and International Humanitarian Law.” 20 . The findings were presented during the thirty-first Conference of the International Red Cross and Red Crescent Movement in November 2011. See also Geneva Academy, Rules of Engagement—Protecting Civilians through Dialogue with Armed Non-State Actors , Geneva: Geneva Academy (October 2011). 21 . Sandesh Sivakuruman, “Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War,” International Review of the Red Cross, 93 (882), (June 2011). 22 . Andrew Clapham, Human Rights Obligations of Non-State Actors , ed. Academy of European Law, Oxford, New York: Oxford University Press, 2006; Marco Sassoli, “Engaging Armed Non-State Actors with International Humanitarian Law,” Canadian Human Security Bulletin, 6 (2), (2008); Alyson J. K. Bailes and Daniel Nord, “Non State Actors in Confict,” Violent Non-State Actors in World Politics, ed. Klejda Mulaj, New York: Columbia University Press, 2010; Stefanie Herr, “Binding Non-State Armed Groups to International Humanitarian Law—Geneva Call and the Ban of Anti-personnel Mines: Lessons from Sudan,” PRIF-Report No. 95 , Peace Research Institute Frankfurt, Frankfurt, 2010, p.461; The new Deed of Commitment encourages the respect of instruments related to the child recruitment in armed conflict such as the two provisions of the Additional Protocols to the Geneva Conventions (Article 77(2) of API and Article 4(3)(c) of APII) or the Optional Protocol to the Convention on the Rights of the Child. 23 . Geneva Call considers factors contributing to ANSA’s commitment to humanitarian norms as the “well-being of the affected population, the desire to attract assistance to territories under their control and the wish to be con- sidered worthy of governance.” In Pauline Lacroix et al., “Engaging Armed Non-State Actors in Mechanisms for Protection,” Forced Migration Review, 37 (March 2011), p.11. See also Herr, “Binding Non-State Armed Groups to International Humanitarian Law,” pp.18–20; Cedric Ryngaert, “Enhancing and Enforcing Compliance with International Humanitarian Law by Non- State Armed Groups: An Inquiry into Some Mechanisms,” Journal of Conflict & Security Law, 16 (3), (Winter 2011), pp.444, 473. 24 . Dudouet, “From War to Politics,” p.16. 25 . Tanja Boerzel and Thomas Risse, “Human Rights and Areas of Limited Statehood: Conceptual Challenges and Empirical Insights,” The Power of Human Rights—Ten Years After , Laramie: University of Wyoming, 2009; Herr, “Binding Non-State Armed Groups to International Humanitarian Law,” p.25. 26 . Specific to the case of South Sudan, Oeysetin H. Rolandsen, “Guerilla Movement: Political Changes in the Southern Sudan during the 1990s,” Kopenhagen, 2005, pp.62, 115. 27 . See observation: “Major challenges remain for Geneva Call. A substantial number of NSAGs (Non-State Actor Groups) have not yet signed up to the Deed.” In Ryngaert, “Enhancing and Enforcing Compliance,” p.450. 28 . Christopher J. Finlay, “Legitimacy and Non-State Political Violence,” The Journal of Political Philosophy, 18 (3), (2010), p.288. NOTES 191
29 . Roger Trinquier, Modern Warfare: A French View of Counterinsurgency , New York: Praeger, 1964, p.8; Timothy P. Wickham-Crowley, Guerrillas and Revolution in Latin America: A Comparative Study of Insurgents and Regimes since 1956 , Princeton, NJ: Princeton University Press, 1992, p.8. Julia Black, “Legitimacy, Accountability and Polycentric Regulation: Dilemmas, Trilemmas and Organizational Response,” Non State Actors as Standard Setters , ed. Anne Peters, Lucy Koechlin, and Gretta Fenner Zinkernagel, Cambridge: Cambridge University Press, 2009, p.249; see also R. Barker, Political Legitimacy and the State , Oxford: Oxford University Press, 1990. 30 . Weinstein focuses, for example, on the relationship between prospect for resource extraction and mobilization of members. See Jeremy M. Weinstein, Inside Rebellion: The Politics of Insurgent Violence , Cambridge Studies in Comparative Politics, Cambridge: Cambridge University Press, 2007. 31 . Klejda Mulaj, “Violent Non-State Actors: Exploring their State Relations, Legitimation, and Operationality,” Violent Non-State Actors in World Politics , New York: Columbia University Press, 2010, p.16. 32 . A. Wendt, Social Theory of International Politics, Cambridge: Cambridge University Press, 1999. See also Peter J. Katzenstein, The Culture of National Security—Norms and Identity in World Politics , New York: Columbia University Press, 1996; Emanuel Adler, “Seizing the Middle Ground: Constructivism in World Politics,” European Journal of International Relations, 3 (3), (1997); Jeffrey T. Checkel, “The Constructivist Turn in International Relations Theory,” World Politics, 50 (2), (1998). 33 . David Kilcullen, Counterinsurgency , New York: Oxford University Press, 2010, p.159. 34 . See chapter 4 f or de tails. 35 . Antonio Giustozzi and Niamatullah Ibrahimi, “Thirty Years of Conflict: Drivers of Anti-Government Mobilization in Afghanistan 1978–2011,” ed. Afghanistan Research and Evaluation Unit 2012. 36 . David Kilcullen, The Accidental Guerrilla , Oxford: Oxford University Press, 2009; Kilcullen, Counterinsurgency . 37 . Gretchen Peters, “The Taliban and the Opium Trade,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2009. 38. Talatbek Masadykov, Antonio Giustozzi, and James Michael Page, “Negotiating with the Taliban: Toward a Solution for the Afghan Conflict,” Working Papers , Crisis States Research Centre, 2010. 39 . Abdulkader Sinno, “The Strategic Use of Islam in Afghan Politics,” Religion and Politics in South Asia , ed. Ali Riaz, New York: Routledge, 2010. 40 . Tim Foxley, “The Taliban’s Propaganda Activities: How Well Is the Afghan Insurgency Communicating and What Is It Saying?,” A SIPRI Project Paper , 2007; Carsten Bockstette, “Taliban and Jihadist Terrorist Use of Strategic Communication,” Connections, 8 (3), (2009); Joanna Nathan, “Reading the Taliban,” Decoding the New Taliban, ed. Antonio Giustozzi, New York: Columbia University Press, 2009. 41 . Shabnameh (Persian): letter sent to supporters of the government with the intention of intimidating and dissuading them from cooperating with the gov- ernment. See Thomas H. Johnson, “The Taliban Insurgency and an Analysis of Shabnamah (Night Letters),” Small Wars Journal, 18 (3), (2007); Thomas 192 NOTES
H. Johnson and Ahmed Waheed, “Analyzing Taliban Taranas (Chants): An Effective Afghan Propaganda Artifact,” Small Wars Journal, 22 (1), (2011). 42 . Other Codes of Conduct of ANSA exist outside of Afghanistan. The analysis is usually related to the question of internal control, actual respect, or com- parison of the Code with other international norms. See, for example, Sassoli, “Engaging Armed Non-State Actors with International Humanitarian Law”; Oliver Bangerter, “Internal Control: Codes of Conduct within Insurgent Armed Groups,” Geneva, 2012; Alkarama, “Code of Conduct Regulating Combat Operations (for the Free Libya Armed Forces),” Geneva (May 2011). 43 . Kate Clark, “The Layha,” AAN Thematic Report , Afghan Analysis Network, 2011. 44 . A. Niaz Shah, “The Islamic Emirate of Afghanistan: A Layeha (Rules and Regulations) for Mujahidin,” Studies in Conflict & Terrorism, 35 (6), (2012); A. Niaz Shah, “The Taliban Layeha for Mujahidin and the Law of Armed Conflict,” International Humanitarian Legal Studies, 3 (2012); Muhammad Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” International Review of the Red Cross, 93 (881), (March 2011). 45 . Amnesty International, “Afghanistan—All Who Are Not Friends, Are Enemies: Taleban Abuses against Civilians,” London, 2007. 46 . Thomas H. Johnson and Matthew C. DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” Central Asian Survey, 31 (1), (2012). 47 . Greg Kleponis, “Throwing the Book at the Taliban,” Small Wars Journal (September 1, 2010). 48 . Such as National Center for Policy Research, “Jihadi Layeha—A Comment,” Kabul, May 11, 2007; L. Roxanne Euben and Muhammad Qasim Zaman, Princeton Readings in Islamist Thought: Texts and Contexts from al-Banna to Bin Laden, Princeton: Princeton University Press, 2009, p.117; Thomas Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” Thematic Report 01/2009 , Afghan Analysts Network, 2009, p.15; Antonio Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , New York: Columbia University Press, 2007, p.84; Kilcullen, Counterinsurgency , p.159; Thomas Ruttig, “The Battle for Afghanistan,” New America Foundation, May 2011, p.7; Thomas Ruttig, “Taliban Reconciliation,” Talibanistan—Negotiating the Borders between Terror, Politics and Religion, ed. Peter Bergen and Katherine Tiedemann, Oxford: Oxford University Press, 2013, p.468. 49 . Geneva Academy, “Armed Non-State Actors and International Norms”; Herr, “Binding Non-State Armed Groups to International Humanitarian Law”; Mulaj, “Violent Non-State Actors: Exploring their State Relations, Legitimation, and Operationality”. 50 . Cedric Ryngaert, “Imposing International Duties on Non-State Actors and the Legitimacy of International Law,” Non-State Actor Dynamics in International Law , ed. Cedric Ryngaert and Match Noortmann, Surrey: Ashgate Publishing Company, 2010. 51 . Ryan Philip Motta, “The Necessary Connection between Internal and External State Legitimacy: Concerns Regarding Intervention,” Journal of Global Ethics, 9 (1), (2013). NOTES 193
52 . Tatiana Kostova and Srilata Zaheer, “Organizational Legitimacy under Conditions of Complexity: The Case of the Multinational Enterprise,” The Academy of Management Review, 24 (1), (January 1999). See also Israel Drori and Benson Honig, “A Process Model of Internal and External Legitimacy,” Organization Studies , 34 (3), (March 2013). 53 . According to the neo-institutional theory, the environment is seen as being formed by cultural norms, symbols, beliefs, and rituals according to which organizations develop preferences and adapt their behavior in their pursuit of legitimacy and survival. See further discussion on neo-institutionalism in P. DiMaggio and W. Powell, “Introduction”; J. W. Meyer and B. Rowan, “Institutional Organizations: Formal Structure as Myth and Ceremony”; and L. G. Zucker, “The Role of Institutionalization in Cultural Persistence,” The New Institutionalism in Organizational Analysis , ed. W. W. Powell and P. DiMaggio, Chicago: Chicago University Press, 1991”; M. C. Suchman, “Managing Legitimacy: Strategic and Institutional Approaches,” Academy of Management Review, 20 (3), (1995); Royston Greenwood et al., Organizational Institutionalism , Thousand Oaks, CA: Sage Publications, 2008. 54 . Max Abrahms, “Why Terrorism Does Not Work,” International Security, 31 (2), (Fall 2006); Max Abrahms, “What Terrorists Really Want,” International Security, 32 (4), (Spring 2008). 55 . Abrahms, “What Terrorists Really Want,” pp.101–102. 56 . Since availability of resources is considered the most important independent factor, resource dependency theory appears to be the most adequate label although this term is not used explicitly by Weinstein( Inside Rebellion: The Politics of Insurgent Violence ). 57 . Weinstein does not explicitly refer to legitimacy and the observation on legiti- macy is an inference from his theory. 58 . Nils Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities,” ed. International Committee of the Red Cross, 2009, pp.27–36. 59 . The Quetta Shura is composed of the top commanders of the Afghan Taliban and is said to be based in the city of Quetta in the province of Bolochistan, Pakistan.
2 Background to Afghanistan and the Taliban 1 . Amin Saikal and William Maley, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy, Colorado: Westview Press, 1989, p.13; Andre Wink, Al Hind: The Making of the Indo-Islamic World , Leiden: E. J. Brill, 1990, p.120. 2 . Walker Thomas Arnold, The Preaching of Islam: A History of the Propagation of the Muslim Faith , New Delhi: Aryan Books International, 1998, p.217. 3. Ibid. 4 . Ibid. See also Nazif Shahrani, “State Building and Social Fragmentation in Afghanistan,” The State, Religion and Ethnic Politics, ed. Ali Banuazizi and Myron Weiner, Syracuse: Syracuse University, 1986. p.26; Asta Olesen, Islam and Politics in Afghanistan , vol. 67, Nordic Institute of Asian Studies mono- graph series, Richmond: Curzon Press, 1995, chapter 2 . 5 . Louis Dupree, Afghanistan , Princeton: Princeton University, 1980, pp.104– 107. 194 NOTES
6 . Michael Barry, Le Royaume de l’Insolence: La Resistance afghane du Grand Moghol a l’Invasion sovietique , Paris: Flammarion, 1984, p.57. 7 . Olesen, Islam and Politics in Afghanistan , p. 36. 8 . Amit Pandya and Ellen Laipson, “Islam and Politics,” 2009, p.35. 9 . Ethnicity is a vague term, but the identifying traits of an ethnic community can be a collective name, a myth of common ancestry, shared historical memo- ries, a distinctive shared culture, an association with a specific territory, and a sense of solidarity. Definition given by John Hutchinson and Anthony D. Smith, “Ethnicity,” Ethnicity , ed. John Hutchinson and Anthony D. Smith, Oxford: Oxford University Press, 1996, pp.6–7. 10 . The estimation of the percentage of Pashtuns of the total Afghan population has been a thorny issue in Afghanistan, and some even claim a 70 percent. A general census was never undertaken in Afghanistan and the figures here are based on extrapolated estimations offered by outsiders, such as the web- site of CIA World Factbook ( https://www.cia.gov/library/publications/the- world-factbook/geos/af.html , accessed July 2014). See also Shuji Hosaka, “Afuganisutan wa do natte iruka (What’s Really Going on in Afghanistan?),” Kyoto Series of Islamic Area Studies, Kyoto University, Kyoto, 2010, p.xv (basic facts). For total population figures, see World Bank estimates (2014). Their origins are unclear, but historical documentation refers to the ancient people called Pakthas between the first and second millennia living in the region between the Hindu Kush and Indus River. See Encyclopedia Britannica (2012) under Pashtun; Thomas Barfield, Afghanistan: A Cultural and Political History , Princeton: Princeton University Press, 2010, p.90; Olaf Caroe, The Pathans , Karachi: Oxford University Press, 1958, chapter 1 . 11 . Yoshio Endo, Afugan 25 nen Senso (Afghan War for 25 Years), Tokyo: Hebon sha, 2002, p.45. 12 . For Pashtunwali , see Fredrik Barth, Ethnic Groups and Boundaries , Oslo: Universitetforlaget, 1969; Akbar S. Ahmed, Pukhtun Economy and Society , London: Routledge & Kegan Paul, 1980; Raj Wali Shah Khattak et al., “The Pashtun Code of Honour,” Central Asia, Research Journal of Area Study Centre , 65 (1), (2009), pp.81–125. 13 . See note 10 of this chapter. 14 . King Zaher Shah, for example, did understand Pashto but was not fluent in it and was more comfortable in the Persian (Dari) language. 15 . Again, the term tribe is elusive, which may be defined as a social division consisting of families or communities linked by social, economic, religious, or blood ties with a common culture and dialect, typically having a recognized leader. It can have distinctive norms of reciprocity, which does not need to be applied within an ethnic group as a whole. See Oxford Dictionaries , Oxford: Oxford University Press, 2014. 16 . Jun Matsui, “Pashuton Yubokumin no Bokuchiku Seikatsu (Stock-farming Life of the Pashtun Normads),” Institute for Research in Humanities, Kyoto University, Kyoto, February 1980, pp.3–12. 17 . Saikal and Maley, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy , p.15. 18 . The importance of cities had declined somehow after the discovery of the sea route to India, which caused the decline of the trans-Asian caravan routes (the Silk Road), an important contributor to the flourishing urban culture. In Olesen, Islam and Politics in Afghanistan , p.43. NOTES 195
19 . Barfield, Afghanistan: A Cultural and Political History , p .64. 20 . Ibid., p.168. 21 . Ahmed Rashid, Taliban—The Power of Militant Islam and Beyond, New York: I. B. Tauris & Co. Ltd., 2000. 22 . Ibid. 23 . Rashid, Taliban—The Power of Militant Islam and Beyond ; Michael Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan , London: Pluto Press, 2001, p.35; Kazushige Shibata, “Taribaan no Tojo kara Shin Kenposeitei made (From the Rise of Taliban to Enactment of New Constitution),” Handobukku Gendai Afuganisutan (Handbook on Contemporary Afghanistan), ed. Hitoshi Suzuki, Tokyo: Akashi Publishing, 2005, p.55. 24 . Rashid, Taliban—The Power of Militant Islam and Beyond . 25 . Hiroshi Takahashi, “Taribaan shutsugen no haikei to Saikoshidosha Mullah Omaru (Background of Taliban’s Emergence and its Commander Mullah Omar),” Afuganisutan wa do natte iruka (What’s Really Going on in Afghanistan?), ed. Shuji Hosaka, Kyoto: Center for Islamic Area Studies at Kyoto University, 2010. 26 . The New York Times , “Afghan Army Ousts Foes from Capital” (June 27, 1994); The Afghanistan Justice Project, “Casting Shadows: War Crimes and Crimes against Humanity: 1978–2001,” Belgium, 2005, p.63. 27 . See various accounts in Rashid, Taliban—The Power of Militant Islam and Beyond ; Takahashi, “Taribaan shutsugen no haikei to Saikoshidosha Mullah Omaru.” According to Rashid, Omar was born sometime around 1959 in Modeh village near Kandahar to a family of poor peasants who were members of the Hotak tribe of the Ghilzais. In Rashid, Taliban—The Power of Militant Islam and Beyond , p.23. 28 . Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan, p.35. The former Taliban ambassador to Pakistan does not concur with this account and presents a different story of liberation. See Abdul Salam Zaeef, My Life with the Taliban , ed. Alex Strick van Linschoten and Felix Kuehun, New York: Columbia University Press, 2010, pp.61–62. 29 . Takahashi, “Taribaan shutsugen no haikei to Saikoshidosha Mullah Omaru,” p.22; Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan , p.43. 30 . Zaeef, My Life with the Taliban , p.65. 31 . Ibid., p.67. 32 . Rashid, Taliban—The Power of Militant Islam and Beyond , p .29. 33 . Ibid., pp.36–49. 34 . BBC, “Flashback: When the Taleban Took Kabul,” World: South Asia (October 15, 2001) . 35 . Rashid, Taliban—The Power of Militant Islam and Beyond , p p. 55–66. 36 . The siege of Hazarajat is also said to have resulted in a similar killing. The Afghanistan Justice Project, “Casting Shadows: War Crimes and Crimes against Humanity: 1978–2001,” pp.120–121; Rashid, Taliban—The Power of Militant Islam and Beyond , p.74. 37 . United Nations, “UN Mapping Report Afghanistan,” Unpublished, 2005, p.248. 38 . Ruttig, “The Battle for Afghanistan,” p.16. 39 . Takahashi, “Taribaan shutsugen no haikei to Saikoshidosha Mullah Omaru,” p.3. 196 NOTES
40 . Conrad Schetter, Ethnizitaet und ethnische Konflikte in Afghanistan , Berlin, Dietrich Reimer Verlag, 2003, p.524. 41 . Amin Saikal, Modern Afghanistan: A History of Struggle and Survival London, New York: I. B. Tauris & Co, 2006. Rashid, Taliban—The Power of Militant Islam and Beyond, pp.196–206; Zalmay Khalilzad and Daniel Byman, “Afghanistan: The Consolidation of a Rogue State,” The Washington Quarterly , The Center for Strategic and International Studies and the Massachusetts Institute of Technology, 2000, p.68; Endo, Afugan 25 nen Senso , p.103. 42 . Such as Jalali, Ali Ahmad, and Lester W. Grau, “Taliban—A Model for ‘Islamicising’ Central Asia?,” The Cyber-Caravan (March 6, 1999). Yusuke Shindo, Taliban no Fukkatsu (Reemergence of the Taliban), Tokyo: Kadensha, 2008, p.10; Endo, Afugan 25 nen Senso , p.88; The Economist , “Revenge of the Pathans” (7903), (February 25, 1995). 43 . One explanation is that King Zaheer Shah, a Durrani, alienated the Pakistani authorities by claiming the Pakistan’s parts of Bajaur and Waziristan as being part of Afghanistan, which enticed the latter to support the Ghilzai forces to counter his claim. In M. Hassan Kakar, Afghanistan—The Soviet Invasion and the Afghan Response, 1979–1982 , Berkeley and London: University of California Press, 1995, p.9; Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.13. 44 . See Waheed Muzhdah, Afghanistan wa panj sal sulta-ye Taleban (Afghanistan Under Five Years of Taliban Sovereignty, English version translated from Persian), Second edition, Kabul, 2001, p.17 (the page number might differ from the original print as the content was received in soft copy). See also The Economist , “Has a New Master?,” (7902), (February 18, 1995); and Martin Ewans, Afghanistan: A New History , Richmond: Curzon Press, 2001. 45 . Takahashi, “Taribaan shutsugen no haikei to Saikoshidosha Mullah Omaru.” 46 . Robert Crews, “Introduction,” The Taliban and the Crisis of Afghanistan , ed. Robert Crews, Amin Tarzi: Harvard University Press, 2008, p.45. 47 . Peter Marsden, The Taliban—War and Religion in Afghanistan, London: Zed Books, 2002. p.70; Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, p.20. 48 . Muzhdah highlights the importance of andival (member of team, friendship) whose membership was crucial in accessing resources and attaining social sta- tus. Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, pp.17–20; Rashid, Taliban—The Power of Militant Islam and Beyond, p.101; Conrad Schetter, “The ‘Bazaar Economy’ of Afghanistan,” Afghanistan: A Country Without a State , ed. Christine Noelle-Karim et al., Lahore: Vanguard, 2002, p.111. 49 . Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, pp.17–20. The depart- ment had existed under Rabbani since 1992, but it was reinforced under the Taliban r egime. 50 . Department of State, “International Religious Freedom Report—Afghanistan,” Washington, DC, 2000. 51 . Rashid, Taliban—The Power of Militant Islam and Beyond, p.115. It must be said, however, that the custom of wearing the Burka existed long before the Taliban made it mandatory, particularly in the countryside. The same custom still exists today even in non-Taliban-controlled Pashtun areas. 52 . John Burns, “A Year of Harsh Islamic Rule Weighs Heavily for Afghans,” New York Times (September 24, 1997). NOTES 197
53 . United Nations, “Report of the Secretary-General on the Situation of Women and Girls in Afghanistan, Submitted in Accordance with Sub-Commission Resolution 1998/17,” ed. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, July 14, 1999, paras. 9–11. In the conservative countryside, on the other hand, the edicts did not seem to encounter much resistance. In Nancy Hatch Dupree, “Social Challenges Past and Present,” Paper prepared for “Afghanistan, Aid and the Taliban” seminar, Stockholm, February 24, 1999. 54 . Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, p.54. See similar account of James Fergusson, Taliban: The Unknown Enemy, London: Bantan Press, 2010, p.56. Crime in cities was virtually non-existent. An Afghan medical doctor recalls in an interview with the author: “At that time, we were very much in favour of the Taliban who arrived as saviours and brought rule and order. Once I saw a man in Kandahar with a bag full of money, which he then left unattended while praying. When he returned, the bag was still there.” In Dr. Rashid Khaled, interview, Tokyo, January 23, 2013. 55 . Heike Bill, “Country Without a State—Does It Really Make a Difference for the Women?,” Afghanistan: A Country Without a State, ed. Christine Noelle- Karim et al., Lahore: Vanguard, 2002, p.107. 56 . Rashid, Taliban—The Power of Militant Islam and Beyond, Introduction and chapter 6 . 57 . Indian writers, in particular, are said to be fond of this view. Abdulkader Sinno, “Explaining the Taliban’s Ability to Mobilize the Pashtuns,” The Taliban and the Crisis of Afghanistan , ed. Robert Crews and Amin Tarzi, Boston: Harvard University Press, 2008, p.69. 58 . Numerous accounts testify to the participation of ISI officers in the early expansion of the Taliban. In Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, pp.12, 52; Endo, Afugan 25 nen Senso , p .94. Declassified US cables report that Pakistan supplied weapons and provision training and technical advice to the Taliban movement. Department of State, “From [Excised] to DIA Washington D.C. [Excised], Cable ‘[Excised]/ Pakistan Interservice Intelligence/Pakistan (PK) Directorate Supplying the Taliban Forces,’ October 22, 1996, Secret, 1 p. [Excised]”; Gregory Copley, “Pakistan under Musharraf,” Defense and Foreign Affairs Strategic Policy (January 2000). At times, Pakistan’s support was termed as “humanitarian assistance to the returning Afghan refugees.” Rabbani was the first to criticize the assistance in the UN General Assembly as it was delivered to the Taliban-controlled area only. Kosaku Maeda and So Yamane, History of Afghanistan , Tokyo: Kawade Shobo, 2002, p.171. 59 . See Rashid, Taliban—The Power of Militant Islam and Beyond, chapters 3 and 14. 60 . Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan, p.38. 61 . Term used by a professor of the international relations department of Peshawar University, interview, Peshawar, October 17, 2012. 62 . During the Taliban’s growth, as many as four million refugees returned from Peshawar between 1992 and 1999 in the hope of better security according to UNHCR. However, soon after the Taliban’s occupation, 10,000 Kabulis fled to Pakistan between October and December 1996 in a growing climate of fear and lack of educational opportunities. Many ended up in Pakistan where 198 NOTES
Afghan schools proliferated in alleys of Peshawar. In Reinhard Schlagintweit, “Afghanistan’s Road to Failure,” Afghanistan: A Country Without a State , ed. Christine Noelle-Karim et al., Lahore: Vanguard, 2002, p.171; Rashid, Taliban—The Power of Militant Islam and Beyond , p.127; Marsden, The Taliban—War and Religion in Afghanistan , p.50; Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, p.60; Shindo, Taliban no Fukkatsu , p .25. UNHCR estimates that in mid-2000, around 172,000 Afghans fled to Pakistan. The first census of Afghan refugees in Pakistan, which took place in 2005, shows that 19,991 families present in Pakistan had fled Afghanistan between 1996 and 2001. In comparison, 21,702 families were from the times of Najibullah (1989–1992) and 13,612 from Mujahideen times (1992–1995). Albeit not absolute, this is a strong evidence that the Taliban regime produced more refugees compared with other regimes. See A. Hiram Ruiz, “Afghanistan: Conflict and Displacement 1978 to 2001,” Forced Migration Review , Refugee Studies Centre, University of Oxford: Oxford, 2001, p.10. Dataset received from UNHCR Peshawar, October 2012. See also UNHCR and Government of Pakistan, “Census of Afghans in Pakistan 2005,” Islamabad, 2005, p.6. 63 . After the toppling of the Talban movement there, the Afghan currency increased from USD1/AFN72 in July to USD1/AFN27 in October 2011. See Central Bank of Afghanistan, “Daily Exchange Rates of Selected Currencies to Afghani,” Kabul, 2001–2012. A journalist reasoned along the same line: “The state of Afghanistan’s currency is as muddled as its politics. It’s a won- der anyone has any faith in it, but Afghans do: The Afghani gained in value at the time of the Northern Alliance’s military advance as traders became confident that peace was at hand.” In Andrew Maykuth, “Afghan Currency Is Foreign—Like the Country, Its Money Has a Rough Past,” Philadelphia Enquirer (December 5, 2001). 64 . Opinion shared by a professor of the international relations department of Peshawar University in an interview with the author on October 17, 2012. 65 . Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, p.92. See also similar conclusion in Shindo, Taliban no Fukkatsu , p .62. 66 . The poor quality of teachers, the exclusive focus on religious matters, and the reclusive life away from the opposite sex were at the origin of the poor knowledge of secular affairs, the narrow worldview, and the misogynistic attitude of the Taliban. See Amalendu Misra, “The Taliban, Radical Islam and Afghanistan,” Third World Quarterly, 23 (3), (2002), p.582; Crews, “Introduction,” p.35. 67 . The cross-border smuggling trade between Afghanistan and Pakistan has been historically important. Sealed goods had been driven up from Karachi to Jalalabad or Kandahar and smuggled back to the black market in Pakistan, taking advantage of the 1950 Afghan Transit Trade agreement allowing Afghanistan to import duty-free goods through the port of Karachi. See Schetter, “The ‘Bazaar Economy’ of Afghanistan,” p.122; Ahmed Rashid, “Pakistan and the Taliban,” The Nation (April 11, 1998). 68 . The ISI was supporting Hekmatyar in its quest to capture Kabul but was over- ruled by Naseerullah Babar’s ministry of the interior in favor of the Taliban. Rashid, “Pakistan and the Taliban.” 69 . See Muzhdah, Afghanistan wa panj sal sulta-ye Taleban, pp.46–48; more about the link between the UN sanctions and the destruction of the Buddha statutes, see Endo, Afugan 25 nen Senso , p.128; Shindo, Taliban no Fukkatsu , p.54. NOTES 199
70 . Muzhdah, Afghanistan wa panj sal sulta-ye Taleban , p.48; Shindo, Taliban no Fukkatsu , p .54. 71 . In Waheed Muzhdah, interview, Kabul, October 10, 2012. Azzam understood the anti-Soviet struggle as merely the beginning of a global Jihad to be fol- lowed by fightings in Palestine, Bukhara, Lebanon, Chad, Eritrea, etc. In Gilles Kepel, Jihad: The Trail of Political Islam , London: I. B. Tauris, 2002, p.147. 72 . The Economist , “Afghanistan—Drier and More Desperate” (August 12, 2000). Even Mullah Omar reportedly said, “We have told Osama not to use Afghan soil to carry out political activities as it creates unnecessary confusion about Taliban o bjectives.” 73 . Bin Laden is said to have complained about Mutawakhil: “Two entities are against our jihad. One is the US, and the other the Taliban’s own Foreign Affairs Ministry.” In Muzhdah, Afghanistan wa panj sal sulta-ye Taleban , p.83. 74 . Rashid, Taliban—The Power of Militant Islam and Beyond, p.77; Shindo, Taliban no Fukkatsu , p.58. 75 . Steve Coll, Ghost Wars: The Secret History of the CIA, Afghanistan, and bin Laden, from the Soviet Invasion to September 10, 2001 , New York: Penguin Press, 2004, p.283; see also Rashid, Taliban—The Power of Militant Islam and Beyond , p.176. 76 . Shindo, Taliban no Fukkatsu , p.61. 77 . Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan, p.42. 78 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.9. 79 . The exact time line was the establishment of the Transitional government in December 22, 2011, with its cabinet members, an Emergency Loya Jirga in the following six months, and the drafting of the Constitution within 18 months. The Constitutional Loya Jirga would then ratify the Constitution within 24 months. In “Conference Conclusions,” The International Afghanistan Conference in Bonn, December 5, 2011. 80 . Frederick S. Starr, “Rebuilding Afghanistan,” Nation-Building: Beyond Afghanistan and Iraq , ed. Francis Fukuyama, Baltimore: Johns Hopkins University Press, 2006, p.111. 81 . Finally, cabinet members were chosen as follows: 18 from the Northern Alliance, 11 from the Roma Group, and 1 from the Peshawar Group. By eth- nicity, 11 were Pashtun, 8 Tajiks, 5 Hazaras, and 3 Uzbeks, and 3 were from other e thnicities. 82. Bob Woodward, Bush at War, New York: Simon & Schuster, 2004, p.314; Nabi Misdaq, Afghanistan—Political Frailty and Foreign Interference , London: Routledge, 2006, p.250. 83 . UNODC, “Corruption in Afghanistan: Recent Patterns and Trends” (December 2012); Government of the Islamic Republic of Afghanistan, “Anti- Corruption Sector Strategy. Afghanistan National Development Strategy (2008–2013),” Kabul, June 2008. “The domestic and international consen- sus is that corruption has become pervasive, entrenched, systemic and by all accounts now unprecedented in scale and reach.” In USAID, “Assessment of Corruption in Afghanistan,” Washington, DC, March 2009, p.4; also Marvin G. Weinbaum, “Rebuilding Afghanistan—Impediments, Lessons, and Prospects,” Nation-Building , ed. Francis Fukuyama, Baltimore: The John Hopkins University Press, 2006. 200 NOTES
84 . Macroeconomic stability has been maintained, based on disciplined fiscal and monetary policies. A new unified currency was introduced; inflation has remained low, while the exchange rate has been stable. Between 2005 and 2012, Afghanistan’s growth rate stood at 6–10 percent each year (real GDP growth). In Government of the Islamic Republic of Afghanistan, “Afghanistan National Development Strategy,” Kabul, July 20, 2010, pp.6–7. 85 . Electricity capacity doubled compared with 2002; 12,000 km of roads were rehabilitated or built including the ring road, considerably lowering the travel time between Kabul to Herat to five hours, which previously took two days. Kazushige Shibata, “2004nen 10 gatsu Daitoryo Senkyo wo meguru Seijikatei (Political Process Related to the Presidential Election of October 2004),” Afuganisutan Kokkasaiken e no Tenbo , ed. Hitoshi Suzuki, Tokyo: IDE-JETRO, 2007, p.176. Since 2002, school enrolment has increased from one million to 7.2 mil- lion and girls’ enrolment has increased from 191,000 to more than 2.71 mil- lion. In “World Development Indicators,” The World Bank, Washington, DC, 2013; “Afghanistan Economic Update,” The World Bank, Washington, DC, October 2012. 86 . Ethan Kapstein and Kamna Kathuria, “Economic Assistance in Conflict Zones Lessons from Afghanistan,” CGD Policy Paper 013, Center for Global Development, Washington, DC, October 2012, p.10. 87 . Rani Mullen, “Afghanistan in 2008—State Building at the Precipice,” Asian Survey, 49 (1), (January/February 2009), p.36, about relationship between aid and ownership: Jonathan Goodhand and Mark Sedra, “Who Owns the Peace? Aid, Reconstruction, and Peacebuilding in Afghanistan,” Disasters, 1 (34), (January 2010). Starr, “Rebuilding Afghanistan,” pp.115–116. 88 . Larry Goodson, “Lessons of Nation-Building in Afghanistan,” Nation- Building , ed. Francis Fukuyama, Baltimore: The John Hopkins University Press, 2006, p.153. 89 . The household perception survey of the Asia Foundation first started in 2007 and is undertaken annually with several thousand survey samples (n = 6,290 in 2012) throughout Afghanistan. Asia Foundation, “A Survey of the Afghan Population,” Kabul, 2006–2012. Critics question the independence and neutrality of the survey but to date it is the most comprehensive and reliable data available to hand. Sarah Chayes, “In Afghanistan, It’s Not All in the Numbers,” Carnegie Endowment for International Peace, Washington, DC, December 3, 2012. Also senior researcher of an international research NGO, interview, Kabul, November2012. 90 . Insecurity (30 percent), followed by corruption (26 percent) and unem- ployment (25 percent). In Asia Foundation, “A Survey of the Afghan Population,” 2013, p.22. 91 . Ibid., p.80. See for a blunt account, Patrick Cockburn, “What We Did to Afghanistan,” Counterpunch (January 13, 2014). 92 . UNODC, “Corruption in Afghanistan—Bribery as Reported by the Victims,” UNODC: Vienna, 2010, p.5. 93 . See Abdul Hakim Mujahid, interview, Kabul, November 7, 2012. See also interview by Marissa with Mullah Mohammad Is’haq Nazimi, former Taliban spokesperson of Mullah Omar: “The Western conception of ‘democracy’ and government is ultimately inappropriate for Afghanistan, and contrast NOTES 201
this with an independent Islamic system (Islamic Emirate) from which for- eign forces have completely withdrawn.” In Marissa Quie, “Peace-Building and Democracy Promotion in Afghanistan: The APRP and Reconciliation with the Taliban,” Pan-European Conference of the Standing Group on International Relations of the EPCR , Stockholm, September 8–11, 2010, p.18. 94 . Antonio Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , New York: Columbia University Press, 2007, chapter 4 . 95 . Ibid., also Tariq Elias Mohammad Osman, “The Resurgence of the Taliban in Kabul,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2009, p.51. 96 . See Ko Nakata, “Taliban no Seiji Shiso to Soshiki (Political Ideology and Structure of the Taliban),” The Association of Global Studies, Doshisha University, March 2011, pp.6–7; Anand Gopal, “The Battle for Afghanistan: Militancy and Conflict in Kandahar,” Policy Paper, New America Foundation, Washington, DC, November 9, 2010, pp.22–23; Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” pp.85–86. 97 . The group is called mahaz (front) in Pashto. 98 . Osman, “The Resurgence of the Taliban in Kabul.” 99 . See note 94, p.118. Exception constituted urban areas where unannounced attacks usually result in more civilian than military casualties. 100 . Giustozzi compared the strategy to the “War of the Flea” as defined by Robert Taber, War of the Flea: The Classic Study of Guerrilla Warfare, Dulles: Potomac Books, 2002. Large-scale conventional battles, such as Operation Medusa (September 2006), have been rather an exception to the norm. 101 . Antonio Giustozzi, “The Resurgence of the Neo-Taliban,” Opendemocracy. net ( 2007), p.148. 102 . Syed Saleem Shahzad, “Taliban Resurgence in Afghanistan,” Le Monde Diplomatique (September 2006). Dadullah admitted that the Taliban had learnt the technique from their Arab “brothers.” In Brian Glyn Williams, “Return of the Arabs: Al-Qa’ida’s Current Military Role in the Afghan Insurgency,” CTC, 1 (3), (February 2008). 103 . Brian Glyn Williams, “Mullah Omar’s Missiles: A Field Report on Suicide Bombers in Afghanistan,” Middle East Policy, XV (4), (Winter 2008). Giustozzi (2007), note 94, p.117. 104 . Tom Coghlan, “British Troops May Face al-Qa’eda Fighters Sent from Iraq to Afghanistan,” Telegraph (February 3, 2006). 105 . Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , p.109; Matthew Dearing, “Examining the Suicide Terror Movement in Afghanistan,” The Culture & Conflict Review ( 2008), p .7. 106 . Seth Robson, “Casualties Down But IED Attacks Continue with Cheap Materials,” Stars and Stripes (November 23, 2012). 107 . See glossary in UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2012,” Kabul, 2013 (for 2012). 108 . Ibid., p.19. 109 . See icasualties.org, formally the “Iraq Coalition Casualty Count,” an inde- pendent website created in May 2003 by a US software engineer. The website 202 NOTES
is considered an “authoritative” record of MNF casualties in Iraq and has been cited by many mainstream media (figures as of February 12, 2014). 110 . Susan G. Chesser, “Afghanistan Casualties: Military Forces and Civilians,” CRS Report for Congress , Washington, DC, December 6, 2012, pp.3–4. 111 . Reuters, “Government Map Shows Dire Afghan Security Picture,” August 5, 2009. Today, there are districts deemed to be too dangerous in all but one of the country’s 34 provinces, according to published UN estimates. In The New York Times , “Indicators of Worsening Security in Afghanistan” (September 12, 2010). 112 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.10. 113 . ‘Kandahari’ is often used for people from the southwestern region in general, with the center Kandahar, and Helmand, Uruzgan, and Zabul provinces. 114 . The Haqqani and Mansur networks and the Tora Bora front practically operate under their own command and strategy and are not subject to the Taliban practice of rotating provincial governors and commanders. The Haqqani have their own long-established independent links to Arab finan- cial sources, to Al Qaeda, and Pakistan’s ISI to operate autonomously from the Taliban supreme leadership. It is ethnically more diverse than other Taliban networks and integrates Pashtun, Pakistani, Uzbek, Chechen, and Arab fighters. In Thomas Ruttig, “Loya Paktia’s Insurgency,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2009, p.88. 115 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.1. 116 . Ibid. p.2. Salafi groups have distinct and strict religious practices. Salafis do not maintain good relations with the Taliban due to the mistreatment of their leadership by the Taliban regime. In Antonio Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , New York: Columbia University Press, 2007, p.131. 117 . According to some reports, the Quetta Council is believed to have moved from Quetta to Karachi. See Declan Walsh, “Karachi Was Haven for Taliban Fugitives,” The Guardian , 2010. Also Shamim Shahid, “Quetta-Based Taliban Move to Karachi,” The Nation , 2009. 118 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.15. The second-in-command is said to be Mullah Gul Agha Akhund, as of 2012. In Ron Moreau, “Taliban Dirty Dozen: Afghan and Pakistani Insurgents to Watch,” Newsweek (April 16, 2012). 119 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.15. According to Ruttig, the leader- ship council should be seen as something very fluid. It convenes on a very irregular basis and the attendance is often incomplete. 120 . The list below is based on publicly available information as of spring 2013: – The one in Quetta directs operations for southern and also western Afghanistan. The zone is believed to be led by Hafez Majid; see Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.15. – The council in Peshawar covers eastern and possibly northeastern Afghanistan first headed by Mullah Kabir, according to Giustozzi, Koran, NOTES 203
Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , pp.91–92. He was arrested in Pakistan in February 2010 and replaced by Sheikh Mohammed Aminullah, according to Bill Roggio, “The Afghan Taliban’s Top Leaders,” The Long War Journal (February 23, 2010). – The council in Miramshah in North Waziristan covers southeast- ern Afghanistan led by Serajuddin Haqqani who is advised by his father Jalaluddin, according to Ruttig (2009), p.16. – The fourth council in Gerdi Jangal (a refugee camp in Pakistani Baluchistan) is a sub-council, responsible for Helmand and Nimruz headed by Akhtar Muhammad Mansur or by Mullah Adbul Zakir, according to Ruttig (2009), p.19. The Miranshah Shura appears to integrate Afghan and Pakistani Taliban and, possibly, foreign fighters. 121 . “On fundamental issues, all orders and decrees are coming from the center, all Mujahidin are bound by the stance of the leadership, although in some daily, simple affairs and issues the commander of each area can himself make decisions,” interview with Qari Yousuf Ahmadi, official spokesman of the Taliban cited by Nathan, “Reading the Taliban,” p.29. 122 . Kilcullen, The Accidental Guerrilla , p.54. 123 . Gopal says that estimating the size of the Taliban forces is fraught with diffi- culties given the frequent border-crossings and the loose definition of mem- bership of the Taliban. In Gopal, “The Battle for Afghanistan: Militancy and Conflict in Kandahar,” p.33. 124 . Urs Gehriger, “Layeha fü r die Mudschaheddin,” Die Weltwoche , Zurich, 2006. 125 . Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , p.35. 126 . Kilcullen, The Accidental Guerrilla , pp.48–49. Media reports in 2014 put the number at 30,000. In John Chalmers and Maria Golovnina, “Smooth Afghan Poll Raises Questions about Taliban Strength,” Livemint & The Wall Street Journal (April 6, 2014). 127 . Amin Tarzi, “The Neo-Taliban,” The Taliban and the Crisis of Afghanistan , ed. Robert Crews and Amin Tarzi, Cambridge: Harvard University Press, 2008; Jon Lunn and Ben Smith, “Armed Militant Groups Based in the Pakistani Border Areas,” ed. House of Commons Library, London: 2010; G. Jones Seth, “Pakistan’s Dangerous Game,” Survival, 49 (1), (Spring 2007). “Perhaps the most pervasive and seemingly intricate factor remains the support to the insurgency from syndicates of extremist networks operat- ing with or without the direct support of state actors in Pakistan.” In Mhd Masoom Stanekzai, “Peace, Reconciliation and Reintegration in Afghanistan: Challenges and Milestones Facing Peace Talks, Transition and Stability in the Region,” Afghanistan in Transition Beyond 2014? , ed. Shanthie Mariet D’Souza, Washington, DC: Pentagon Press, 2012, p.2. 128 . BBC Documentary , “Backlash: Secret Pakistan” (November 2, 2011). 129 . Resident A. of Kabul, interview, October 31, 2012. 130 . Christoph Reuter and Borhan Younus, “The Return of the Taliban in Andar District,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2007, p.111; Tom Coghlan, “The Taliban in Helmand,” Decoding the New Taliban , ed. Antonio Giustozzi, 2009, p.148. 204 NOTES
131 . Daily Times , “Mounting Civilian Casualties Harming Coalition Stand in Afghanistan” (May 4, 2007). 132 . HRW, “Troops in Contact—Airstrikes and Civilian Deaths in Afghanistan,” New York, September 8, 2008; UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict, 2008,” UNAMA Kabul, Afghanistan, 2009 (for 2008), p.13. It must be noted, however, that the percentage of civilian casualties attributed to the Coalition Forces decreased significantly after 2007 in relation with that of anti-government elements. See subsequent reports of UNAMA 2007–2013. 133 . BBC, “Karzai Anger over Civilian Deaths” (May 2, 2007). 134 . Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , p.39. 135 . Contrary to other parts of the world, Afghan suicide attackers are charac- teristically young, uneducated, and poor, drawn from madrassas across the border of Pakistan. See UNAMA, “Suicide Attacks in Afghanistan,” Kabul, September 1, 2007, p.10. They are said to be hired by recruiters who come in the guise of normal employers taking young boys for jobs to cities or to other regions. In A. Niaz Shah, Islamic Law and the Law of Armed Conflict , Abingdon: Routledge, 2011, p.112. 136 . Alia Brahimi, “The Taliban’s Evolving Ideology,” Working Paper 02/2010 (2010),p.5. 137 . Asia Foundation, “A Survey of the Afghan Population,” 2013, p.42. 138 . In 2012, sympathizers of the Taliban mentioned the Afghan cause (34 per- cent), followed by “defence of Islam” (33 percent) as a reason to support the Taliban. In Asia Foundation (2012), p.60. The 2013 version does not discuss the reason for support to the armed opposition. 139 . Tarzi, “The Neo-Taliban,” p.308. 140 . See interviews with Taliban commanders conducted by Matt Waldman, “The Sun in the Sky: The Relationship between Pakistan’s ISI and Afghan Insurgents,” Crisis States Discussion Papers , 2010. 141 . Don Rassler and Vahid Brown, “The Haqqani Nexus and the Evolution of al-Qaida,” CTC—Harmony Program, July 14, 2011. Syed Saleem Shahzad, Inside Al-Qaeda and the Taliban: Beyond Bin Laden and 9/11, London: Pluto Press, 2011, pp.31–32; Gretchen Peters, “Haqqani Network Financing: The Evolution of an Industry,” 2012. 142 . “They seem to have absorbed from their foreign jihadist allies a more flexible and less orthodox attitude towards imported technologies and techniques. [. . .] More important, the Neo-Taliban became much more integrated in the international jihadist movement after 2001 [. . .] and [undertook] first, shy attempts to court educated constituencies.” In Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan , pp.13–14. 143 . Referring to the communication of the Taliban’s spokesperson, Tarzi says: “His tone and the list of demands could have very well been made by a legiti- mate Afghan political organization, or even privately by Karzai himself.” In Tarzi, “The Neo-Taliban,” p.293. 144 . Shahamat website, “Message of Felicitation of the Esteemed Amir-ul- Momineen (May Allah Protect Him) on the Occasion of Eid-ul-Odha,” October 13, 2013. See also interview with Sohail Shaheen, member of NOTES 205
Taliban Negotiation Team in Qatar: “Our agenda is development, rehabili- tation of our country and independence of our country, a government based on the will of our people. So, we have no agenda to work with any group on the soil of Afghanistan against any country.” In NHK, Exclusive Interview with Top Taliban Leaders (November 9, 2012). In Annex I of this book. 145 . The term “Neo-Taliban” made its first appearance in Jonathan Ledgard, “Taking on the Warlords,” The Economist (May 22, 2003). 146 . Giustozzi, Koran, Kalashnikov, and Laptop—The Neo-Taliban Insurgency in Afghanistan . See for discussion Thomas Ruttig, How “Neo” Were the “Neo- Taleban”?, March 5, 2010, Kabul, Afghanistan Analysts Network. 147 . Tarzi, “The Neo-Taliban,” p.276. 148 . Alex Strick van Linschoten and Felix Kuehn, “Separating the Taliban from al-Qaeda: The Core of Success in Afghanistan,” Center on International Cooperation, February 2011, p.8; also Anne Stenersen, “The Relationship between Al-Qaeda and the Taliban,” Talibanistan , ed. Peter Bergen and Katherine Tiedemann, Oxford: Oxford University Press, 2013. 149 . Ruttig, How “Neo” Were the “Neo-Taleban”? 150 . Antonio Giustozzi, Decoding the New Taliban , New York: Columbia University Press, 2009, p.136; Ruttig, “Taliban Reconciliation,” p.453. 151 . Foxley, “The Taliban’s Propaganda Activities: How Well Is the Afghan Insurgency Communicating and What Is It Saying?,” p.6. 152 . See, for example, Sohail Shaheen: “First of all, I will say we have no connec- tion [with Al Qaeda] to carry out [ . . . ] sabotage activities in other coun- tries, we are not into this.” In NHK, Exclusive Interview with Top Taliban Leaders . 153 . Nathan, “Reading the Taliban,” p.23. 154 . Ibid., p.26. 155 . Nakata, “Taliban no Seiji Shiso to Soshiki,” pp.3, 6, and 33; Jon Boone, “Taliban Ready to Lift Ban on Girls’ Schools, Says Minister,” The Guardian (January 11, 2011). Antonio Giustozzi and Claudio Franco, “The Battle for Schools: The Taleban and State Education,” Kabul, August 2011. This stance is not to be confused with that of the Pakistan Taliban who are opposed to girls’ e ducation. 156 . The two official Taliban websites are http://www.theunjustmedia.com and http://shahamat.info/ (for English, see http://www.shahamat-english. com ). The latter offers various language versions in Pashto, Arabic, Urdu, and Farsi with frequent updates reflecting a high level of sophistication to run the website. 157 . “Taliban and Nato-Led Forces Engage in War of Words on Twitter,” The Guardian (September 14, 2011); Rod Nordland and Jawar Sukhanyar, “Taliban Kill Afghan Election Official, Then Brag on Twitter,” The New York Times (September 18, 2013). 158 . Nakata, “Taliban no Seiji Shiso to Soshiki,” p.6. 159 . “Although the exact composition of this council still remains unclear (and even more after the current wave of arrests in Pakistan), its core still is mainly Kandahari and stems from the pre-2001 leadership.” In Ruttig, How “Neo” Were the “Neo-Taleban”? 160 . van Linschoten and Kuehn, “Separating the Taliban from al-Qaeda: The Core of Success in Afghanistan,” p.8. 206 NOTES
3 Layeha—the Code of Conduct of the Taliban 1 . Different spellings exist in Western literature such as Layha, Leyha, or Layeha. This research adopts the latter since it most authentically reflects the Pashto pronunciation. 2 . Euben and Zaman, Princeton Readings in Islamist Thought: Texts and Contexts from al-Banna to Bin Laden , p.475. 3 . Gehriger, “Layeha f ü r die Mudschaheddin.” For English version, see Signandsight.com, “A New Layeha for the Mujahideen” (November 16, 2006), available at http://www.signandsight.com/features/1071.html , accessed January 2, 2010. 4 . Haji Obaidullah, the Taliban minister of defence, would have handed the Layeha to the members of the Shura, the highest organ of the Taliban. In Sami Yousafzai, “Der Kodex der Taliban,” Die Weltwoche ( 2006). 5 . Aljazeera , “Taliban Issues Code of Conduct” (July 28, 2009); Alissa J. Rubin and Taimoor Shah, “Taliban Overhaul Image to Win Allies,” The New York Times (January 20, 2010). Mark Mazzetti et al., “Secret Joint Raid Captures Taliban’s Top Commander,” The New York Times (February 15, 2010); Ben Arnoldy, “In Afghanistan, Taliban Kills More Civilians than US” (July 31, 2009); Ahmed Issam, “New Taliban Code: Don’t Kill Civilians, Don’t Take Ransom,” The Christian Science Monitor ( 2009). On 15 July, the Coalition Forces also seized a copy in Ivo Sangin Valley. See http://www-tc.pbs.org/wgbh/pages/frontline/obamaswar/etc/mulla- homar.pdf , accessed October 1, 2013. 6 . See for translation: Appendix 1 of Clark, “The Layha”; Muhammad Munir, “Annex—The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” International Review of the Red Cross, 93 (881), (2011); Shah, “The Islamic Emirate of Afghanistan: A Layeha (Rules and Regulations) for Mujahidin.” The translation of Munir seems to be the most authentic to the original text, that is, with regard to the religious terms. See Annex III for translated version. The original version was uploaded at http://alemarah-iea.net/index.php?option=com_content&view=category &id=9&Itemid=24 but is no longer available. 7 . Mujahid, inte rview. 8 . According to the Arabic language magazine Al Sommod of March 2008, the duties of the Cultural Commission would include “the issuance and publica- tion of Jihadi books.” In Nathan, “Reading the Taliban,” p.27. Also Moreau, “Taliban Dirty Dozen: Afghan and Pakistani Insurgents to Watch.” 9 . Clark, “The Layha,” p.6. 10 . In Mullah Omar, Omar on the Eve of Eid ul Odha, November 25, 2009. See also “strictly implement the book of the Layeha which has already been given to you.” In Mullah Omar, Message of Felicitation of the Esteemed Amir- Ul-Momineen Mullah Mohammad Omar Mujahid, on the Eve of Eid-Ul-Fitr , September 8, 2010. Mullah Omar, “Message of Felicitation of the Esteemed Amir-Ul-Momineen on the Occasion of Eid-Ul-Fitre,” August 28, 2011. 11 . Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” p.89, footnote 6. 12 . Clark, “The Layha,” p.1. 13 . Ibid. NOTES 207
14 . Imtiaz Ali, “Preparing the Mujahidin: The Taliban’s Military Field Manual,” CTC Sentinel, 1 (10), (September 2008). 15 . Sarajuddin Haqqani, Army Lectures for Mujahideen (place of publication unknown), September 29, 2011; see also Ron Moreau and Sami Yousafzai, “Dueling Manifestos,” Newsweek (November 14, 2011). 16 . Ali, “Preparing the Mujahidin: The Taliban’s Military Field Manual,” p.5, footnote 2. 17 . Kleponis, “Throwing the Book at the Taliban,” p.6. 18 . Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” p.78. 19 . Kate Clark, interview, Kabul, November 12, 2012, p.3; Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.15; The Guardian, “Hunt for ‘Traitors’ Splits Taliban” (May 27, 2007); Brahimi, “The Taliban’s Evolving Ideology,” p.16. 20 . See N. Hotak, “Imam, Rebel Killed in Zabul,” Pajhwok Afghan News (November 14, 2010); Yousafzai, “Der Kodex der Taliban”; Louis Dupree, “Badghis Province: Examining the Taliban’s Northwestern Campaign,” Culture & Conflict Review, 2 (4), (December 2008); Martine van Bijlert, “The Battle for Afghanistan. Militancy and Conflict in Zabul and Uruzgan,” Counterterrorism Strategy Initiative Policy Paper , September 2010. The problem of internal disputes is reflected in the Layeha calling for fair distribution of the war booty (i.e., weapons and equipment) and the recom- mendation to leave behind tribal, linguistic, and regional prejudice behind. 21 . Shehzad, who had met Omar in a cave near Kandahar in October 2002, positively identified the voice during his telephone interview in 2004. In Mohammad Shahzad, “Interview with Mullah Omar,” The Rediff (April 12, 2004). 22 . Sami Yousafzai, “This Mullah Omar Show,” Newsweek (August 8, 2010), p.4; “Mullah Omar, Where Are You?,” Newsweek (May 26, 2011). 23 . Mujahid, interview. See also comment of Haroun Mir: “The Taliban are wor- ried that a lot of groups call themselves Taliban, especially a number of crimi- nal groups that go on the main road and kidnap people to extract money.” In Arnoldy, “In Afghanistan, Taliban Kills More Civilians than US.” 24 . Yousafzai, “Der Kodex der Taliban.” 25 . The New York Times, “Petraeus to Expand Efforts to Protect Afghan Civilians” (August 4, 2010). 26. The counterinsurgency specialist David Kicullen sums up the concept as fol- lows: “In irregular conflict [. . .] whoever does better at establishing a resilient system of control, that gives people order and a sense of security [. . .] to gain their support and ultimately win the competition of government.” In Kilcullen, Counterinsurgency , p.152. 27 . Ahmed Rashid, interview, Lahore, Pakistan, January 6, 2012. A report of the US Department of State also analyzes that the “Jihadi Layeha was possibly issued in response to the ISAF’s commitment to reduce civilian casualties.” In “2010 Human Rights Report: Afghanistan,” Washington, DC: Department of State, April 8, 2011. 28 . Johnson, “The Taliban Insurgency and an Analysis of Shabnamah (Night Letters)”; ICG, “Taliban Propaganda: Winning the War of Words?,” Asia Report , Brussels: International Crisis Group, 2008. 208 NOTES
29 . Dr. R. A., interview, Peshawar, October 14, 2012. 30 . Arnoldy, “In Afghanistan, Taliban Kills More Civilians than US,” The Christian Science Monitor (July 31, 2009). 31 . Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities,” pp.27–36. 32 . For example, the editorial of Washington Post claims that the new Taliban Layeha would be another propaganda tool and “the latest in a series of use- less instructions.” In The Washington Times, “Editorial: A Kinder, Gentler Taliban” (August 5, 2010). Also, “Nato commanders denounced the ‘Layeha’ as a propaganda exercise aimed at persuading Afghan civilians it is a disciplined force which follows the rules of war.” In Dean Nelson, “Taliban Issues ‘Code of Conduct’ to Fighters in Afghanistan,” The Telegraph (July 30, 2009). 33 . See, for example, interview with the head of Afghan Islamic Press, Yakob Sharafat, Peshawar, October 16, 2012. 34 . Arnoldy, “In Afghanistan, Taliban Kills More Civilians than US.” 35 . As put forth by a Taliban commander in an interview with die Weltwoche . Yousafzai, “Der Kodex der Taliban.” For different estimated figures, see chap- ter 3 of this book. 36 . According to Johnson, the 2009 Layeha would address mostly group leaders particularly at the tactical level in charge of cadres numbering around 10–15 men. In US Navy Postgraduate School, “Understanding Afghan Culture, Analyzing the Taliban Code of Conduct: Reinventing the Layeha,” Program for Culture and Conflict Studies, Department of National Security Affairs Naval Postgraduate School, 2009, p.3. 37 . Clark, “The Layha,” p.15. As of 2013, the English translation of the Layeha is no longer available on the Shahamat website. 38 . Article 27 of the 2010 Layeha, italics added. 39 . Local paper and website in English only. 40 . The Swiss magazine Die Weltwoche talks of a meeting during Ramadan in which the booklet was first distributed. The ICG claims that the Layeha has been circulating since late 2005. In ICG, “Taliban Propaganda: Winning the War of Words?,” p.28. 41 . Gehriger,“ Layeha fü r die M udschaheddin.” 42 . First page of the 2009 Layeha. 43 . Afghan Islamic based in Peshawar, Afghan Islamic Press Online , “Taliban Issue New Code of Conduct” (July 28, 2009). 44 . Aljazeera , “Taliban Issues Code of Conduct.” 45 . Translated into English and uploaded on Shahamat website, August 6, 2009. 46 . First page of the 2010 Layeha. 47 . Pajhwok Afghan News , “Civilian Casualties up by 31pc: UN” (August 10, 2010). 48 . Matiullah Achakzai, “Taliban’s Code of Conduct: Protect Civilians, Unless They Side with the Government, NATO,” Associated Press, August 3, 2010. 49 . Pashtun interviewees based in Peshawar are considered to be local. The table does not include interviews with other foreigners. 50 . The difference between addressee and target is similar to the dichotomy between victim and target as proposed by Walter (1969). If, for example, tor- ture were committed to show publicly that the act of treason is met with harsh punishment, the person would be the victim and the target the public. See Eugene V. Walter, Terror and Resistance , New York: Oxford University Press, NOTES 209
1969, p.9. Another example is suicide attack against an occupying force. The victim of the attack would be the immediate victim of the blast, whereas the final target could be the local or diaspora community to boast oneself as a “resistance of the weak against an illegitimate occupier”. 51 . Gehriger,“ Layehaf ü r die M udschaheddin.” 52 . Annex III has only the translation of 2010 version. For all versions see Appendix 1 of Clark, “The Layha.” Article 16 of the 2006 Layeha. 53 . Article 17 of the 2006 Layeha. 54 . Article 15 of the 2006 Layeha. 55 . Clark, “The Layha”; Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” p.79. 56 . Article 1 of the 2010 Layeha, Article 1 of the 2009 Layeha. 57 . Article 2 of the 2010 Layeha, Article 1 of the 2009 Layeha. 58 . Article 2 of the 2010 Layeha. 59 . Article 3 of the 2010 Layeha. 60 . Article 7 of the 2010 Layeha. 61 . Article 3 of the 2010 Layeha, Article 2 of the 2009 Layeha. 62 . Article 5 of the 2010 Layeha, Article 5 of the 2009 Layeha. 63 . Article 4 of the 2010 Layeha, Article 3 of the 2009 Layeha in comparison with Article 4 of 2006 Layeha, which reads, “whoever accepts the invitation and then breaks his promise and clearly abuses his commitments becomes a traitor and forfeits our protection. He will be given no second chance.” See Appendix 1 of Clark, “The Layha.” 64 . Article 8 of the 2010 Layeha, Article 6 of the 2009 Layeha. 65 . Article 8 of the 2010 Layeha. 66 . Article 2 of the 2010 Layeha, Article 4 of the 2009 Layeha. 67 . Article 10 of the 2010 Layeha. 68 . Article 10 of the 2010 Layeha. 69 . Article 10 of the 2010 Layeha. 70 . Article 12 of the 2010 Layeha. Article 9 of the 2009 Layeha also stresses the consent of the prisoner as a precondition. 71 . Article 12 of the 2010 Layeha. In Appendix 1 of Clark, “The Layha.” Translation of Munir says: “In case the Muslims need money” in Annex III in this book. 72 . Article 14 of the 2010 Layeha, Article 11 of the 2009 Layeha. 73 . Translation of Clark. Munir’s translation avoids the term torture, “Mujahids should not expose those detained by them to starvation, thirst, cold or heat even if they deserve death. The Mujahids should punish the detained persons in accordance with the decision provided by Sharia concerning them, whether that would entail execution or any other type of punishment.” In Annex III in this book. 74 . Article 11 of the 2010 Layeha. 75 . Ibid. 76 . Article 13 of the 2010 Layeha, Article 10 of the 2009 Layeha. 77 . Article 18 of the 2010 Layeha, Article 14 of the 2009 Layeha. 78 . Ibid. 79 . Ibid. 80 . Article 21 of the 2010 Layeha, Article 18 of the 2009 Layeha (the latter only talking about photographing). 210 NOTES
81 . Article 22 of 2010 Layeha. 82 . Message on front page of the 2010 Layeha. See Annex III in this book. 83 . Articles 24, 25, and 26 of the 2006 Layeha. 84 . Article 24 of the 2010 Layeha. 85 . For education, see Article 59 of the 2010 Layeha and Article 42 of the 2009 Layeha; for NGOs, see Article 60 of the 2010 Layeha and Article 43 of the 2009 La yeha. 86 . Article 57 of the 2010 Layeha, Article 41 of the 2009 Layeha under internal issues for Mujahedeen. 87 . Article 56 of the 2010 Layeha. 88 . Article 81 of the 2010 Layeha, Article 63 of the 2009 Layeha. 89 . Article 77 of the 2010 Layeha. 90 . “Non-adults (underage persons without beards) are forbidden to live in the Mujahids residential places and military centres.” In Article 69 of the 2010 Layeha, Article 50 of the 2009 Layeha, and Article 19 of the 2006 Layeha. 91 . See, for example, Rod Nordland, “Afghans Plan to Stop Recruiting Children as Police,” The New York Times (January 29, 2011). 92 . Article 65 of the 2010 Layeha; see also last message on the back cover of the 2010 Layeha, which reads: “The protection of public properties as well as life and properties of common people is regarded as one of the basic respon- sibilities of Mujahids. Therefore, you should do your best in order to act in accordance with this responsibility and do not let ambition and indulgence in worldly pleasures arm persons to offend common people or to damage their property in order to get material wealth.” 93 . Article 67 of the 2010 Layeha, Article 48 of the 2009 Layeha. 94 . Article 72 of the 2010 Layeha, Article 53 of the 2009 Layeha. 95 . Article 70 of the 2010 Layeha, Article 51 of the 2009 Layeha. 96 . Article 71 of the 2010 Layeha, Article 52 of the 2009 Layeha. 97 . Article 73 of the 2010 Layeha, Article 54 of the 2009 Layeha. 98 . Article 3 of the 2010 Layeha, Article 2 of the 2009 Layeha. 99. Article 33 of the 2010 Layeha, Article 25 of the 2009 Layeha. 100 . Article 66 of the 2010 Layeha, Article 47 of the 2009 Layeha. 101 . Article 78 of the 2010 Layeha, Article 59 of the 2009 Layeha, italics added. 102 . Format borrowed from Johnson and DuPee (2012), p.80, but with signifi- cant modification of content. 103 . See, for example, Fabrizio Foschini, “The Battle for Schools in Ghazni—or, Schools as a Battlefield,” ed. Afghanistan Analysts Network, 2012. A more recent report depicts a bleaker outlook: Antonio Giustozzi and Claudio Franco, “The Ongoing Battle for the Schools,” Afghanistan Analysts Network, 2013. 104 . Staff member of an international NGO, interview, Kabul, November 12, 2012. 105 . David Marley, “Taliban ‘Backs Girls’ Education,’” TES Magazine (January 14, 2011) . 106 . Sections 8 and 9 of 2010 and 2009 Layeha. 107 . Carol Grisanti and Mushtaq Yusufzai, “Taliban-Style Justice for Alleged U.S. Spies,” NBC News (April 17, 2009); NBC News , “U.S. Suspends Training for Some Afghan Recruits after ‘Insider’ Attacks” (2012). 108 . Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” p.8. NOTES 211
109 . “Statement by the Islamic Emirate spokesman on ear-mutilation incident in Kandahar,” Taleban Voice of Jihad website, March 12, 2011, translated by BBC Monitoring. In Clark, “The Layha,” p.9, footnote 32. 110 . Javid Hamim Kakar, “Taliban Deny Using Children for Suicide Attacks,” Pajhwok Afghan News (September 3, 2011); Mullah Omar, “Remarks of the Spokesman of the Islamic Emirate Regarding the Baseless Claim of Presence of Children in the Ranks of Mujahideen,” May 11, 2011. 111 . Mujahid,inte rview. 112 . The aspect of socialization was left out as it presumes a long-term process over several generations, whereas the Layeha’s time horizon to internal- ize the content is much shorter. See for various typologies: Ronald Cohen, “Introduction,” State Formation and Political Legitimacy , ed. Ronald Cohen and Judith D. Toland, New Brunswick: Transaction Books, 1988; Suchman, “Managing Legitimacy: Strategic and Institutional Approaches”; H. Aldrich, Organizations Evolving , London: Sage, 1999; S. D. Dobrev, “Revisiting Organizational Legitimation,” Organization Studies, 22 (3), (2001). 113 . “Insurgents cannot hope to enforce standards of behaviour without sanc- tion and reward mechanisms, which can be spelt out in penal or disciplinary codes.” In Small Arms Survey, “Regulating Armed Groups from Within: A Typology,” Research Notes Armed Actors , Geneva, 2012, p.3. The codes of other ANSAs are full of disciplinary sanctions, and the Taliban’s Layeha is not an exception. See, for example, disciplinary rules of other ANSAs, such as: Forces pour la D é fense de la D é mocratie (Burundi); FARC (Colombia); Chin National Front, Karen National Liberation Army, and Zomi Re-unification Organization (Myanmar); Fuerza Democr á tica Nicarag ü ense (Nicaragua); African National Congress (South Africa); and Sudan Liberation Movement–Unified Leadership and the Sudan People’s Liberation Movement/Army (Sudan). Ibid. 114 . Article 49 of the 2010 Layeha. The function of the commission is also to act as an internal “watchdog,” such as preventing infiltration of spies and criminals into the Taliban ranks and ensuring respect of the Layeha. 115 . Article 50 of the 2010 Layeha, Article 36 of the 2009 Layeha. 116 . Article 50 of the 2010 Layeha. 117 . Ibid. 118 . Article 2 of the 2010 Layeha, Article 4 of the 2009 Layeha, Articles 5 and 14 of the 2006 Layeha. 119 . Article 66 of the 2010 Layeha, Article 46 of the 2009 Layeha, and Article 18 of the 2006 Layeha. 120 . Article 73 of the 2010 Layeha. 121 . al-Suy ūṭī (1445–1505) and Henry Sullivan Jarrett, History of the Caliphs , Calcutta: J. W. Thomas for The Asiatic Society, 1881, p.143 (Translated as Prince of the Faithful ). 122 . The latter was asked by the Islamic Khilaphat Movement to defend the Islamic interest worthy of the title of “Amir ul-Mu’minin.” The Khilaphat Movement was a spontaneous Muslim movement in India in the 1920s to protest against the British policy. For details, see Gail Minaut, The Khilafat Movement , New York: Columbia University Press, 1982, p.107. 123 . According to the Spanish Muslim mystic Muhyi al-Din Ibn al-‘Arabi from the thirteenth century, a “Mujahid” is someone “who improves society and 212 NOTES
provides for the welfare of God’s creature.” In Ibn al-‘Arabi, Futuhat al- Makkiyya , Beirut, 1991. In the Afghan context, the term was first used by Westerners to describe those who resisted the British in the 1830s and later to call those involved in the anti-Soviet resistance in the 1980s. 124 . The Taliban governor of Kandahar once told a Japanese diplomat in 1994: “We are not a guerrilla movement like the Mujahedeen who fought the Soviets.” In particular, the Taliban blamed the Jamiat members (Hekmatyar, Sayyaf, Rabbani) for the chaos and lawlessness. In Takahashi, Taribaan shut- sugen no haikei to Saikoshidosha Mullah Omaru (Background of Taliban’s Emergence and Its Commander Mullah Omar), p.3. 125 . Foreward message of the 2010 Layeha. 126 . Articles 8, 9, 12, 14, 21, 24, 25, 26, and 34 of the 2009 Layeha. 127 . Front and back pages, Article 22 of the 2009 Layeha. 128 . Articles 10, 12, 16, 17, 18, and 40 of the 2010 Layeha. In some provisions, such as Article 33, Imam is used to refer to a religious leader of the village or province. 129 . Front and back pages, Article 27 of the 2010 Layeha. 130 . Article 40 of the 2010 Layeha, Article 34 of the 2009 Layeha. 131 . Staff member of an international NGO, interview, Kabul, November 12, 2012. 132 . A. S. Hornby, Oxford Advanced Learner’s Dictionary , ed. Wehmeier Sally, Oxford: Oxford University Press, 2000. 133 . Ibid.
4 Comparison with Pashtunwali 1 . Article 78 of the 2010 Layeha. 2 . For comparison with Islamic law, see Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law.” Also Shah, “The Taliban Layeha for Mujahidin and the Law of Armed Conflict.” 3 . Brief mention of Pashtunwali in Kleponis, “Throwing the Book at the Taliban,” pp.2–3. 4 . Message of Amir ul-Mu’minin on the back cover of the 2010 Layeha. 5. Given the limited scope, only the most relevant aspects of Pashtunwali are devel- oped here. For more detail, see Caroe, The Pathans ; Ahmed, Pukhtun Economy and Society ; Dupree, Afghanistan ; Bernt Glatzer, Essays on South Asian Society, Culture and Politics , ed. Zentrum Moderner Orient. Geisteswissenschaftliche Zentren Berlin, Berlin: Klaus Schwarz Verlag, 1998; Khattak et al., “The Pashtun Code of Honour”; Lutz Rzehak, “Doing Pashto,” Afghan Analysts Network ( March 2011) . 6 . Khushhal Khan Khattak (1613–1689) wrote a book in Pashto prose that can be seen as the first attempt to define appropriate rules of Pashtun behavior. He did not, however, use the term “Pashtunwali.” In Rzehak, “Doing Pashto,” p.3. 7 . Such as the intellectuals Abdurrauf Benaw ā , Gulpā ch ā Ulfat, Abdullah Bakhtā ni, Qiy ā muddin Kh ā dim, and Nur Muhammad Taraki. In Rzehak, “Doing Pashto,” p.4. 8 . Rzehak, “Doing Pashto,” p.4. 9 . Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to ‘Talks,’” p.12; Crews, “Introduction,” p.31. NOTES 213
10 . David B. Edwards, Before Taliban—Genealogies of the Afghan Jihad, Berkeley, Los Angeles, London: University of California Press, 2002, p.294; Sinno, “Explaining the Taliban’s Ability to Mobilize the Pashtuns,” p.76. 11 . Article 79 of the 2010 Layeha, Article 60 of the 2009 Layeha. 12 . Glatzer, Essays on South Asian Society, Culture and Politics , p .5. 13 . Landinfo, “Afghanistan: Blood Feuds, Traditional Law (Pashtunwali) and Traditional Conflict Resolution,” Oslo , November 1, 2011, p.7. 14 . Thomas Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions,” Washington, DC: United States Institute for Peace, June 26, 2003. 15 . Article 19 of the 2010 Layeha, Article 15 of the 2009 Layeha. 16 . Article 48 of the 2010 Layeha. 17 . Article 62 of the 2010 Layeha. 18 . Rzehak, “Doing Pashto,” p.11. 19 . Ibid., p.14. 20 . Palwasha Kakar, “Tribal Law of Pashtunwali and Women’s Legislative Authority,” Islamic Legal Studies Program , Harvard Law School, 2004, p.3. 21 . Second point of Mullah Omar’s message on the last page of 2009 and 2010 Layeha. 22 . Point four of Mullah Omar’s message on the last page of the 2010 Layeha. 23 . Article 71 of the 2010 Layeha. 24 . Article 73 of the 2010 Layeha. 25 . Article 72 of the 2010 Layeha. 26 . Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions,” p .14. 27 . Caroe, The Pathans ; International Legal Foundation, “The Customary Laws of Afghanistan,” New York, September 2004, p.10. 28 . Rzehak, “Doing Pashto,” p.18. 29 . The killing of a male is, for example, equivalent to two bride prices, which can be paid either in money or blood money. In Rzehak, “Doing Pashto,” p.18. 30 . Johnson and DuPee, “Analysing the New Taliban Code of Conduct (Layeha): An Assessment of Changing Perspectives and Strategies of the Afghan Taliban,” p.84. 31 . Article 10 of the 2010 Layeha. 32 . Article 3 of the 2010 Layeha. Also Article 2 of the 2009 Layeha (italics added, but content in parentheses is reproduced verbatim from Appendix 1 of Clark, “The La yha”). 33 . Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions”; Miakhel Shahmahmood, “Understanding Afghanistan: The Importance of Tribal Culture and Structure in Security and Governance,” Chief of Party in Afghanistan for the US Institute of Peace, 2009, pp.7–8. 34 . San Diego State University, ALCP, “Pashtunwali (website),” ed. Language Acquisition Resource Center, 2013. 35 . Article 5 of the 2010 Layeha, Article 1 of the 2009 Layeha. 36 . Article 15 of the 2010 Layeha. 37 . Articles 2 and 7 of the 2010 Layeha, Article 11 of the 2009 Layeha. 38 . Article 5 of the 2010 Layeha, Article 11 of the 2009 Layeha. 39 . Article 4 of the 2010 Layeha, Article 3 of the 2009 Layeha. 40 . Article 3 of the 2010 Layeha, Article 2 of the 2009 Layeha. 214 NOTES
41 . Hassan M. Yousufzai and Ali Gohar, Towards Understanding Pakhtoon Jirga , Peshawar: Peshawar Just Peace International, pp.17–18. 42 . Ibid., pp.2 0–21. 43 . Ibid., p.17 . 44 . Ibid. 45 . Article 62 of the 2010 Layeha, Article 44 of the 2009 Layeha. 46 . Ibid; see also Clark, “The Layha,” p.11. 47 . Thomas Ruttig, “How Tribal Are the Taliban?,” Afghanistan Analysts Network, Kabul, June 24, 2010; L. Carter and K. Connor, “A Preliminary Investigation of Contemporary Afghan Councils,” Peshawar: ACBAR, 1989. 48 . Chief or nobleman in the Afghan context. 49 . Rzehak, “Doing Pashto,” p.12. 50 . Ibid., p.11 . 51 . Ibid., p.12. See also Glatzer, Essays on South Asian Society, Culture and Politics , p.89. 52 . Ibid., pp.1 2–14. 53 . Article 27 of the 2010 Layeha, Article 22 of the 2009 Layeha. 54 . Glatzer, Essays on South Asian Society, Culture and Politics ; Jonathan Hawkins, “The Pashtun Cultural Code: Pashtunwali,” Australian Defence Force Journal, 180 (November/December 2009), p.18. 55 . Last page of the 2010 and 2009 Layeha. 56 . Article 20 of the 2010 Layeha, Article 17 of the 2009 Layeha. 57. Article 84 of the 2010 Layeha. 58 . If they cannot agree on the changes, the matter is referred to the upper level. In Article 39 of the 2010 Layeha. 59 . Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions,” p.14. 60 . Pajhwok Afghan News , “Uprising against Taliban Spreads,” June 3, 2013; Dawn, “Tribesmen Rise Up against Afghan Taliban,” July 20, 2012; The Nation , “Afghan Tribes Rise Up against Taliban,” July 21, 2012.
5 Comparison with Islamic Law 1 . Here the translation of Munir is used as it reproduces most authentically the religious terms of the original text. See foreword of the Code in Annex III. 2 . “O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority amongst you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the last Day: That is best, and most suitable for final determination.” In Qur’an [4: 59] of Ali Abdullah Yusuf, The Holy Qur’an , New York: Tahrike Tarsile Qur’an, 2001. Also in Munir, “Annex—The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.104. 3 . For example, Sobhi Mahmassani, “The Principles of International Law in the Light of Islamic Doctrine,” Recueil des Cours, 117 (1966); C. G. Weeramantry, Islamic Jurisprudence: An International Perspective, Basingstoke: Macmillan, 1988; Abdullahi A. An-Na’im, Toward an Islamic Reformation , Syracuse: Syracuse University Press, 1990; Sheikh Wahbeh al-Zuhili, “Islam and International Law,” International Review of the Red Cross, 87 (858), (June 2005). NOTES 215
4 . See a similar observation: “[There are] complexities in interpreting Islamic legal sources resulting from the fact that the four main Sunni schools of thought had developed their own methodology on the Fiqh out of a par- ticular historical and political context.” In Center for International Peace Operations (ZIF), “Conference Report,” Islamic Law, The Rule of Law, and International Peace Operations , Cairo: ZIF, 2011. 5 . James Cockayne, “Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations,” International Review of the Red Cross, 84 (847), (2002), p.597. For typology of legal tradition, see Patrick H. Glenn, Legal Traditions of the World , Oxford: Oxford University Press, 2000. 6 . Farrukh B. Hakeem et al., “The Concept of Punishment Under Sharia,” Policing Muslim Communities: Comparative International Context, 2012, p.8. 7 . Andrew March, “Live Seminar: Islamic Law and Civilian Protection,” International Humanitarian Law Research Initiative , ed. Program on Humanitarian Policy and Conflict Research, Harvard University, June 17 2009. 8 . Sunnah refers to good deeds, habits, customs, and practice of the Prophet, whereas hadith are the books compiled about the good deeds, habits, cus- toms, and practice of the Prophet. Many examples of sunnahs are found in hadiths narrated by the Prophet’s companions. 9 . Article 79 of the 2010 Layeha cites Hazrat Abu Hurairah, a companion of the Prophet and one of the most important narrators of hadith . Also Article 3 of the 2010 Layeha. 10 . Kevin A. Reinhart, “Legitimacy and Authority in Islamic Discussions of ‘Martyrdom Operations’/‘Suicide Bombings,’” Enemy Combatants, Terrorism, and Armed Conflict Law: A Guide to the Issues , ed. David Linnan, Westport: Greenwood Publishing, 2008, p.171. 11 . Article 1 of the 2006 Layeha, italics added. In Appendix of Clark, “The Layha.” 12 . Front message of the 2009 and 2010 Layeha. 13 . A shortcut is made through the literature of Jihad, given the limited scope of the research. The most important modern literatures of Islamic scholars on the subject of Jihad and laws of war are: Abu al-Ala Mawdudi, al-Jihad fi al-Islam , Lahore: Idera Tarjumln al-Qur’ln, 1988; Muhammad Hamidullah, Muslim Conduct of State , Lahore: Sh. Muhammad Ashraf, 1953; Wahba al- Zuhayli, Athar al-harb fi al-fiqh al-islami: dirawa muqarana , Beirut: Dar al- Fikr, 1981. There are many other publications on Jihad in Arabic. According to Mustansir Mir, modern Islamic interpreters of medieval Jihad can be classified into apologists, neoclassists, and modernists. See Mustansir Mir, “Jihad in Islam,” The Jihad and Its Times , ed. Hadia Dajani-Shakeel and Ronald Messier, Ann Arbor: Center for Near Eastern and North African Studies, University of Michigan, 1991. For further Western literature: Rudolph Peters, Jihad in Mediaeval and Modern Islam , Leiden: E. J. Brill, 1977; Reuven Firestone, Jihad—The Origin of Holy War in Islam , Oxford: Oxford University Press, 1999; M. Hilmi Zawati, “Is Jihad a Just War? War, Peace, and Human Rights under Islamic and Public International Law,” Studies in Religion and Society , Lewiston: Edwin Mellen Press, 2001; Kepel, Jihad: The Trail of 216 NOTES
Political Islam ; David Cook, Understanding Jihad , Berkley: University of California Press, 2005; Tariq Ramadan, In the Footsteps of the Prophet: Lessons from the Life of Muhammad , New York: Oxford University Press, 2007. For a good historical overview of interpretations of Qur’an and the hadith , see M. D. Bostom and G. Andrew, The Legacy of Jihad, Amherst: Prometheus Books, 2008. For analysis of Jihad in the historical context, see Alisa Bonner, Jihad in Islamic History , Princeton: Princeton University Press, 2006. 14 . The Royal Aal al-bayt Institute for Islamic Thought, Jihad and the Islamic Law of War , Jordan, 2009, p.1; Atsushi Okuda, “Isulaamu ni okeru Houhakken to Hou no Mokutekiron (Legal Identification and Legal Teleology in Islam),” Sougou Seisakugaku no Saisentan III , ed. Michio Umegaki, Tokyo: Keio University Press, 2003, p.265. Since the early Islam, Ijtihad is equaled with effort of jurists to arrive at correct judgments. 15 . Cherif M. Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” Jihad and Its Challenges to International and Domestic Law , ed. C. Bassiouni and Amna Guellali, The Hague: Hague Academic Press, 2010, pp.16–17. 16 . Ibid,p.18 . 17 . Yusuf, The Holy Qur’an . 18 . The battles include Badr (624 CE ), Uhud (625 CE ), al-Ahzab (626 CE ), Quraizah (627 CE ), al-Mutaliq (627 CE ), Khaibar (628 CE ), Mu’tha (629 CE ), Hunain (630 CE ), and Tabuk (630 CE ). See W. B. Hallaq, Shari’a: Theory, Practice, Transformations, Cambridge: Cambridge University, 2009, pp. 335–336. 19 . This often-cited verse also calls for leniency: “But if they repent, and estab- lish regular prayers and practise regular charity, then open the way for them: for Allah is Oft-forgiving, Most Merciful [9:5].” See also: “Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued [italics added] [9:29].” Translation by Yusuf, The Holy Qur’an . 20 . They are commonly known as Massacre of Banu Qurayza (627 CE ) and Conquest of Makka (620 CE ). To balance this view, the Quraida are said to have breached a treaty they had concluded with the Muslims to come to assist each other in case of any external attack. The Quraida, instead of com- plying with the provisions of the treaty, assisted the Makkans in their attack against Muslims in Medina, which would explain the massacre against the Quraida. The attack on Makka is also said to have been conducted in response to what the Makkans inflicted upon Muslims such as the unilateral denunciation of the Treaty of Hudaibiyya. 21 . The other controversy is whether the Medina-revealed verses abrogate the pre- vious Mekka-revealed verses. According to the doctrine of repudiation (called nashk ), the verses were revealed for an intended purpose and the revelation subsequent in time would supersede the former ones. Exegetes of the doctrine of tanzil point out that there would be no basis in the Qur’an to replace the former verses. It would exceed the competence of humans to deem the earlier verses of God as supplanted and see the revelations as predicated on the time NOTES 217
of revelation with a particular purpose related to the context. See Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” p.21. 22 . Other variations of (armed) Jihad exist, such as the defensive, sympathetic, punitive, or idealistic Jihad advanced by Mawdudi or Hamidullah. S. Thomas Troy, “Prisoners of War in Islam: A Legal Inquiry,” The Muslim World, 87 (1), (January 1997), pp.46–47; Mian R. A. Khan, Islamic Jurisprudence , Lahore: Sh. Mohammad Ashraf, 1978, pp.207–209; Hamidullah, Muslim Conduct of State , pp.164–169. 23 . Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” p.14. 24 . Ibid. See also Atsushi Okuda, “Wareware ni totteno Jihaado (Jihad in Our Understanding),” Okinawa Hosei Kenkyu , Okinawa: Okinawa International University, December 2008, p.27. 25 . The spiritual side of Jihad was developed in the ninth century when moralists blended the spiritual side of Jihad with early Sufism, such as al-Muhasibi (ninth century) and Ibn Abi al-Dunya (ninth century). Abu Hamid Muhammad al- Ghazali (1059–1111 CE ) described the body as a city governed by the soul and besieged by the lower self. Withdrawal from the world to mystical pursuits would constitute an advance in the Greater Jihad. Contemporaneous scholars of Greater Inner Jihad include Wahba Zuhayli or Sabouni. See for discus- sion Atsushi, “Wareware ni totteno Jihaado,” p.23; Cook, Understanding Jihad , p.36; Douglas Streusand, “What Does Jihad Mean?,” The Middle East Quarterly , IV (3), (September 1997). 26 . John Esposito, The Islamic Threat: Myth or Reality?, New York: Oxford University Press, 1999, p.31. See also Bonner, Jihad in Islamic History, p.14; Carole Hillenbrand, The Crusades: Islamic Perspectives, Edinburgh: Edinburgh University Press, 1999, p.97. 27 . Amna Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” Jihad and Its Challenges to International and Domestic Law , ed. C. Bassiouni and Amna Guellali, The Hague: Hague Academic Press, 2010, p.74. 28 . Such as Yusuf al-Qaradawi who published the much-debated Jurisprudence of Jihad (Fiqh al-Jihad) , Cairo: Wahba Bookshop, 2009. See also Egyptian scholar Mufti Muhd Abduh, Indian scholar Shibli Numani, Abdur Rahman Azzam, Allama Mustafa Sibai, Ahmad Amin, Mahmud Aqqad, and Shaikh Mhd a l-Ghazali. 29 . Such as the Sufi Al-Muhasabi who advances the idea of combating one’s pas- sions and desires to achieve worldly success while also acknowledging the battlefield as a place in which to pursue the same idea. Cook, Understanding Jihad , p.36. 30 . Cook (ibid., pp.165–166) claims that there is scarce evidence for the pri- macy of spiritual Jihad in both contemporary and classical Muslim literature. See also Bernard Lewis, The Political Language of Islam, Chicago: University of Chicago Press, 1988, p.72; Ahmad S. Moussalli, Moderate and Radical Islamic Fundamentalism , Gainesville: University Press of Florida, 1999; G. Michael Knapp, “The Concept and Practiceof Jihad in Islam,” Parameters, 33 (1), (Spring 2003), pp.151–152. 31 . See, for example, Mahmassani, “The Principles of International Law in the Light of Islamic Doctrine,” pp.250–253. 218 NOTES
32 . See Gregory M. Reichberg, Religion, War, and Ethics , Oslo: International Peace Research Institute, 2014, p.305; Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” p.25; Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” p.71. 33 . Ibid. 34 . Ibid,p.72 . 35 . Hallaq, Shari’a: Theory, Practice, Transformations , p .327. In past history, the imperatives of the prevailing time also played a crucial role in determining the nature and scope of Jihad. In the aftermath of the life of the Prophet, the very survival of the ummah was at stake and a doc- trinal explanation of invasion and expansion was needed. The threat against the Muslim communities abated between the eighth and twelfth centuries and friendly relations were developed with other nations; accordingly, Jihad was defined more restrictively. Under the crusades, the obligation to fight became no longer a matter of a few (fard kifaya ) but of everybody (fard ‘ayn ). See Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” p.25; Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” p.71. 36 . Ibn Taymiya (1268–1328 CE ) was an Islamic scholar of the Hanbali jurispru- dence. 37 . Bassiouni, “Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence,” p.30. 38 . Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” p.72. 39 . Presented in the fifth general meeting of associations in Cairo, dated October 11, 1938, of his lecture on “The Stand of Muslim Brethren towards Union.” See Muhammad Amara, al-Islam wa-l-Urubba wa-l-almaniyya , Beirut, 1981, p.171. The Muslim Brotherhood was founded in Egypt in 1928. 40 . Sayyid Qutb formed the ideological basis for Ayman al-Zawhairi, Usama Bin Laden, Al Qaeda, and many other militants. The two most important books are: Sayyed Qutb, Milestones (revised translation), Indianapolis: American Trust Publications, 1990; and In the Shade of the Quran, 17 vols., Leicester: Islamic Foundation, 2006. 41 . A. A. al-Maududi, Jihad in Islam , Beirut: The Holy Koran Publishing House, 2006. 42 . Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” p.81. 43 . Qutb, Milestones , p.51. 44 . Ibid., p.90. 45 . “The ruling to kill the Americans and their allies—civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque and the holy mosque [Makka] from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim.” In Osama Bin Laden, “World Islamic Front Statement Urging Jihad against Jews and Crusaders,” 1998. 46 . Guellali, “Understanding the Discourses on Jihad in Islam through Classical and Modern Narratives,” p.82. NOTES 219
47 . Front page message of the 2006 Layeha. 48 . Articles 74 and 75 of the 2010 Layeha; Articles 55 and 56 of the 2009 Layeha. 49 . Article 68 of the 2010 Layeha forbids smoking of cigarettes, but it is under- stood as smoking hashish. See also Article 49 of the 2009 Layeha, Article 18 of the 2006 Layeha. 50 . Article 69 of the 2010 Layeha, Article 50 of the 2009 Layeha, Article 19 of the 2006 Layeha. 51 . Article 79 of the 2010 Layeha, Article 60 of the 2009 Layeha. 52 . Article 78 of the 2010 Layeha, Article 59 of the 2009 Layeha. 53 . Foreword message of the 2010 Layeha. 54 . Article 2 of the Constitution of the Islamic Republic of Afghanistan reads: “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam. Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of [the] law.” Article 3 also says: “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” For interview, see Michael Semple et al., “Taliban Perspectives on Reconciliation,” Briefing Paper , Royal United Services Institute, London, September 2012. Yakob Sharafat, the nephew of Younus Khalis, told the author in an inter- view: “The constitution of Afghanistan is correct but the constitution was cre- ated by the occupiers under the occupation. [. . .] Not a single article is against Islam.” 55 . In S harafat, i nterview. 56 . Cook, Understanding Jihad , p.124; Bonner, Jihad in Islamic History , p .11. 57 . In lieu of Jihad, Islamic law has a doctrine of rebellion ( baghy ) according to which the oppressed is given the right to rebel against a cruel or incompetent Muslim ruler. For doctrine of rebellion (baghy ), see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law , Cambridge: Cambridge University Press, 2001; Sadia Tabassum, “Combatants, Not Bandits: The Status of Rebels in Islamic Law,” International Review of the Red Cross , 93 (881), (March 2011). On the other hand, if the insurrection is intended to overthrow a legally established govern- ment on unjustifiable grounds , it is called “mutiny.” See Hamidullah, Muslim Conduct of State , p.17. 58 . There are several cumulative conditions attached to it, such as the withdrawal from the Muslim community (khuruj ), reasonable religious pretext for dis- obedience (ta’wil ), and demonstrated power to challenge the state ( shawka ). 59 . Foreword of 2010 Layeha. 60 . See Tafsir regarding the verse [4:59]: “If you should quarrel, disagree, about anything, refer it to God, that is, to His Book, and the Messenger, while he lives, and thereafter [refer] to his Sunna: in other words examine these [dis- putes] with reference to these two [sources], if you believe in God and the Last Day; that, reference to the two [sources], is better, for you than quarrel- ling or [adhering to] personal opinions, and more excellent in interpretation, in the end.” In Feras Hamza, “Tafsir al-Jalalayn,” Amman: Royal Aal al-Bayt Institute for Islamic Thought, 2012. 61 . Haim Gerber, Islam, Guerila War and Revolution , Colorado: Lynne Rienner Publishers, 1988, pp.137–138. 220 NOTES
62 . Robert Crews, “The Taliban and Nationalist Militancy in Afghanistan,” Contextualizing Jihadi Thought , ed. Jeevan Deol and Zaheer Kazmi, London: Hurst & Company, 2012, pp.352–356. 63 . See note 27 of this chapter. The verse is often cited in the context of both jus in bello and jus ad bellum . See Daniel Thuerer, International Humanitarian Law: Theory, Praxis, Context , Hague: Hague Academy of International Law, 2011, p.233; and Wahbeh al-Zuhili, “Islam and International Law,” p.282. For a detailed analysis of this verse, see Muhammad Munir, “The Protection of Civilians in War: Non-Combatant Immunity in Islamic Law,” Hamdard Islamicus, XXXIV (4), (2011), pp.7–39. 64 . Abu Hanifa (699–767) was the first to treat the subject systematically and his disciple al-Shaybani (749/750–805) consolidated it into a book known as the Islamic Law of Nations. See Muhammad Munir, “Islamic International Law (Siyar): An Introduction,” Hamdard Islamicus, XXXX (4), (2012), pp.37–60. 65 . Ahmed Mohsen Al-Dawoody, War in Islamic Law: Justifications and Regulations , Doctoral thesis, University of Birmingham, August 2009, p.198. Recent Islamic scholars such as Mawdudi, Hamidullah, or al-Zuhayli left a profound impact on the critical review of medieval interpretation of the con- duct of war in modern times. Hamidullah and al-Zuhayli, in particular, further developed principles of international relations and the means and methods at times of war ( siyar ) in modern Islamic discussion. See H. Sohail Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” Muslim World, 89 (2), (1999). 66 . According to al-Sarakhsi, siyar also regulates the conduct of the Islamic state in its conflicts with apostates and rebels. Muhammad ibn Ahmad ibn Abī Sahl al-Sarakhsī , Kit ā b al-Mabs ū t , Beirut: Dā r al-Ma‘rifah, n.d., Vol.10, p.2. Cited in Al-Dawoody, War in Islamic Law: Justifications and Regulations . Abū -Han ī fah is known to be the first to equate the term siyar with the Muslim laws of war and peace. In Hamidullah, Muslim Conduct of State , p.11. 67 . Anke Iman Bouzenita, “The Siyar—An Islamic Law of Nations?,” Asian Journal of Social Science, 25 (2007), p.24. 68 . As defined by Hanafi jurist Kasani (d. 587) and cited by Khadduri in Shaybani, The Islamic Law of Nations—Shaybani’s Siyar , ed. Majid Khadduri, Baltimore: The Johns Hopkins Press, 2001, p.40 (translator’s introduction). 69 . “[The jurists] analysed the questions about the conduct of hostilities dur- ing rebellion irrespective of whether the rebellion was just or unjust, that is, without taking sides.” In Tabassum, “Combatants, Not Bandits: The Status of Rebels in Islamic Law,” p.127. Classic Muslim jurists seemed to pay more attention to jus in bello rather than jus ad bellum , whereas modern Muslim jurists are inclined toward the latter probably as a response to Western apprehension of Jihad. Al-Dawoody, War in Islamic Law: Justifications and Regulations , p.194; Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.158; Zawati, “Is Jihad a Just War? War, Peace, and Human Rights under Islamic and Public International Law,” pp.6–7. 70 . Other variations are ahl al-qitā l/al-muhhā ribah (combatants, fighters/war- riors) and ghayr al-muqā tilah/ghayral-muhhā ribah (non-combatants, non- NOTES 221
fighters/non-warriors). In Al-Dawoody, War in Islamic Law: Justifications and Regulations , p.201. 71 . Qur’an translated by Yusuf, The Holy Qur’an . 72 . Mawdudi, al-Jihad fi al-Islam , p.217. Similarly, a combatant is, according to al-Zuhayli, “anyone who is engaged directly or indirectly in the fighting such as enlisted or voluntary soldiers whether in the sea, land or air.” See Wahbah al-Zuhayl ī , Ath ā r al-Harb fī al-Isl ā m , Dir ā sah Muq ā ranah, Third edition. Damascus: Dā r al-Fikr, 1998/1419, p.503. Similarly, al-Mawd ū dī defined combatants as “those who are actively engaged in the fighting.” See Ab ū al-A‘l ā al-Mawdū d ī , Shar ī ‘ ah al-Islā m fī al-Jihā d wa al- ‘ Alā q ā t al-Dawl- iyyah , translated by Samī r ‘Abd al Hamī d Ibrā hī m, Cairo: Dā r al-Sahwah, 1985/1406, p.171, cited in Al-Dawoody, War in Islamic Law: Justifications and Regulations , p.201. 73 . “At the time of the Prophet all able-bodied men used to take part in war because there was no regular army to fight the enemy, and society as a whole contributed to the war effort.” In Muhammad Munir, “Suicide Attacks and Islamic Law,” International Review of the Red Cross, 90 (869), (2008), p.86. 74 . This is the view of the majority of commentators among the companions of the Prophet such as ‘Abdullah b. ‘Abbā s (AD 687) and followers of sahabas ( tabi’ ū n ) such as ‘Umar b. ’Abdul ‘Azī z (AD 719) and Mujā hid b. Jabr Mawla ( AD 721). Also in Muhammad Munir, “The Protection of Civilians in War: Non-Combatant Immunity in Islamic law War,” Hamdard Islamicus , 34 (4), (October–December 2011) . 75 . al-Zuhayli, Athar al-harb fi al-fiqh al-islami: dirawa muqarana, p.505, cited in Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.169. 76 . Hamidullah, Muslim Conduct of State , p.59. 77 . In one episode, the Prophet said, “Go in Allah’s name, trusting in Allah, and adhering to the religion of Allah’s Apostle. Do not kill a decrepit old man, or a young infant, or a child, or a woman.” Abu Dawud Book 008 , Chapter unknown, Hadith No. 2608; equally, ibn ‘Umar Book 052 , Hadith No. 258; Malik Muwatta Book 021 , Hadith No. 009, Section 293. 78 . ‘ As ī f (pl. usaf ā ) stands for hired man or an employee. See also conclusion of al-Zuhayli, Athar al-harb fi al-fiqh al-islami: dirawa muqarana, p.505, cited in Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.169. 79 . For protection of servant, Abu Dawud Book 008 , Hadith No. 2663. 80 . Mahmassani, “The Principles of International Law in the Light of Islamic Doctrine,” p.303. 81 . See Sunan al-Bayhaq ī , Had ī th No. 17939 in al-Bayhaq ī , Vol. 9, p.91; Majid Khadduri, The Law of War and Peace in Islam: A Study in Muslim International Law , London: Luzac & Co, 1940, p.104; Mahmassani, “The Principles of International Law in the Light of Islamic Doctrine,” p.302; Zawati, “Is Jihad a Just War? War, Peace, and Human Rights under Islamic and Public International Law,” p.44; Ali Raza Naqvi, “Laws of War in Islam,” Islamic Studies, XIII (1), (March 1974), p.32; Weeramantry, Islamic Jurisprudence: An International Perspective , p.136; Hamidullah, Muslim Conduct of State . p.204; Muhammad Munir, “The Protection of Civilians in War: Non- Combatant Immunity in Islamic Law” , Hamdard Islamicus , XXXIV (4), (October–December, 2011), pp.7–39. 222 NOTES
82 . Muwaffaq al-D ī n‘Abd Allahibn Ahmad ibn Qudā mah, Al-Mughnī : Fī Fiqh al-Imā m Ahmad Ibn Hanbal al-Shayb ā nī , Beirut: D ā ral-Fikr, 1984–5/1405, Vol.9, p.250; Muhammad ibn ‘Al ī ibn Muhammad al-Shawkā nī , Nayl al-Awtā r: Min Ah ā d ī th Sayyid al-Khyā r Sharh Muntaqā al-Akhbā r , Beirut: D ā r al-J ī l, 1973, Vol.8, p.73, cited in Al-Dawoody, War in Islamic Law: Justifications and Regulations , p.205. 83 . Muhammad al-Ghazā l ī , Al-Wasī t f ī al-Madhhab , ed. Ahmad Mahm ū d Ibrā h īm and Muhammad Muhammad T ā mir, Cairo: D ā r al-Salā m, 1997/1417, Vol.7, p.19, cited in Al-Dawoody, War in Islamic Law: Justifications and Regulations . 84 . Shah, Islamic Law and the Law of Armed Conflict . 85 . Abu Bakr al-Siddiq in Maliks Muwatta Book 021, Hadith No. 010 under section on Prohibition against Killing Women and Children in Military Operations. 86 . Abu Bakr ordered the Muslims: “When you meet your enemies in the fight, behave yourself as befits good Muslims, and remember to prove yourselves the true descendants of Ismail [. . .]. In your march through the enemy territory, do not cut down the palm, or other fruit-trees, destroy not the products of the earth, ravage no fields, burn no houses [. . .]. Let no destruction be made without necessity.” In A. Rahman Doi, Non-Muslims under Shari’ah, Kazi Publications, 1983. pp.94–95 citing Sahih Muslim [2:32]. 87 . Article 65 of the 2010 Layeha, Article 46 of the 2009 Layeha. 88 . Munir, “The Layha for the Mujahideen: an Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.94. 89 . Article 25 of the 2006 Layeha. 90 . Articles 9, 10, 20, and 21 of the 2009 Layeha. 91 . Articles 20 and 21 of the 2009 Layeha. 92 . Articles 23, 24, and 25 of the 2010 Layeha. 93 . Italics added. See Muhammad Khyr Haykal, Al-Jih ā d wa al-Qitā l fī al-Siyy ā sah al-Shar‘iyyah , Second edition. Beirut: Dā ral-Bayā riq, 1996/1417, Vol. 2, pp.1246–1247. See also Ab ū Zahrah, Tanz ī m al-Isl ā m lil-Mujtama , p.48, cited in Al-Dawoody, War in Islamic Law: Justifications and Regulations , p.210. 94 . Article 81 of the 2010 Layeha and Article 63 of the 2009 Layeha, italics added. Clark, “The Layha,” Appendix 1. Munir translates similarly: “in the frame of Sharia.” 95 . Hadith in Bukhari [54:90]; Barnaby Rogerson, The Prophet Mohammad , New Jersey: HiddenSpring, 2003, p.163. 96 . In the battle of Badr ( AD 624), it is recorded that the Muslim fighters wore, for the first time, a special sign made out of wool. In Karima Bennoune, “Humanitarian Law in Islamic Jurisprudence,” Michigan Journal of International Law, 15 (605), (1994), footnote 160; also ibn Hisham, As-Seera an-Nabaviyya , Dubai: An Nahdah Institute, p.559. In the battle of Badr, Muslims were ordered to wear distinctive signs and angels came on that day to help the Muslims also to wear such signs. In Hamza, Tafsir al-Jalalayn , on verse [3:125]. See also Ahmed Z. Yamani, “Humanitarian International Law in Islam: A General Outlook,” Michigan Year Book of International Legal Studies, 7 (189), (1985). 97 . Ian Richard Netton, “Encyclopedia of Islamic Civilization and Religion,” Darura , Oxon: Routledge, 2008, pp.134–135. NOTES 223
98 . Darura is translated here as necessity, but “being indispensable” might better reflect the authentic meaning of the term. Additional purposes are termed hajat (needs), which can be compared to the colloquial understand- ing of “necessity.” 99 . Mazil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice , Edinburgh: Edinburgh University Press, 2004, p.84. Al-Zuhayli maintained that necessity would occur when the state of danger or extreme hardship affects the life, body, honor, mind, or property of the human being. Al-Zuhayli, Nazariyat al-darura al-shar ‘iyya , B eirut, 1995. 100 . Imran Ahsan Khan Nyazee, Theories of Islamic Law: The Methodology of Ijtihad , Kuala Lumpur: A.S. Noordeen, 1994, p.214; Nazeem M. I. Goolam, “Ijthihad and Its Significance for Islamic Legal Interpretation,” Michigan State Law Review ( 2006), p .1451. 101 . “Al dar ū r ā t tubī h al-mahzū r ā t,” in Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.177. 102 . Ibid. 103 . Ibid. 104 . Verse [22:60]. See also Tafsir on the same verse: “And whoever retaliates, [whoever] from among the believers requites, with the like of what he was made to suffer, at the hands of the idolaters wrongfully: that is whoever fights against them if they fight against him during the sacred month, and then is [again] made to suffer aggression, by them, that is to say, he is [again] wronged, by being expelled from his house, God will surely help him. Indeed God is Pardoning, to believers, Forgiving, them their engaging in combat during the sacred month.” In Hamza, Tafsir al-Jalalayn . 105 . “And if ye do catch them out, catch them out no worse than they catch you out: But if ye show patience, that is indeed the best (course) for those who are patient” [16:126–7] and “That (is so). And if one has retaliated to no greater extent than the injury he received, and is again set upon inordinately, Allah will help him: for Allah is One that blots out (sins) and forgives (again and again)” [22:60]. In Yusuf, The Holy Qur’an . 106 . For a discussion, see Islamic scholar al-Zuhayl ī al-Zuhayli, Athar al-harb fi al-fiqh al-islami: dirawa muqarana . In Sunni Islam, there are currently four recognized schools of thought—Hanaf ī s, Maliki, Sh ā f ī ‘i, and Hanbal ī —the difference lying in practical and philosophical interpretation of the sources of law. In general, Sunnis do not identify with one particular school of thought. 107 . Ibid., p.46, cited in Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.171. 108 . Ibid. Such as the Malikite jurist Khalil who forbade the use of poisonous arrows. In Hamidullah, Muslim Conduct of State , p .207. 109 . “But fear Allah, and know that Allah is with those who restrain themselves [2:194], [9:36].” “But if ye show patience, that is indeed the best (course) for those who are patient. [16:126] And do thou be patient, for thy patience is but from Allah, nor grieve over them: and distress not thyself because of their plots. [16:127] For Allah is with those who restrain themselves, and those who do good [16:128].” 110 . Hisham ibn al-Hakim, a Shiite jurist of eighth century, said that he had “heard God’s messenger say that God will torture those who torture people on earth.” In Yamani, “Humanitarian International Law in Islam: A General 224 NOTES
Outlook”; Bennoune, “Humanitarian Law in Islamic Jurisprudence,” foot- note 117. 111 . Such as Muhammad ibn ‘Al ī al-Shawk ā n ī , Fath al-B ā rī , ‘Izz al-D ī n Ab ū H ā mid Ibn Abī al-Hadī d, cited in Zawati, “Is Jihad a Just War? War, Peace, and Human Rights under Islamic and Public International Law,” pp.41–42; also Mawdudi, al-Jihad fi al-Islam, pp.224–238; al-Zuhayli, Athar al-harb fi al-fiqh al-islami: dirawa muqarana , pp.500–507; Hamidullah, Muslim Conduct of State , pp.204–208; Khan, Islamic Jurisprudence , p p.211–212 112 . “And if ye do catch them out, catch them out no worse than they catch you out: But if ye show patience, that is indeed the best (course) for those who are patient [16:126].” For clarification, see Tafsir of al-Jalalayn for verse [16:126]: “After Hamza [b. ‘Abd al-Muttalib] had been killed and muti- lated, and the Prophet (s) had seen him and said, ‘Verily I will mutilate 70 of them for you,’ the following was revealed: And if you retaliate, retaliate with the like of what you have been made to suffer; and yet if you endure patiently, [refraining] from revenge, verily that, namely, [that] enduring, is better for the patient. Thus the Prophet (s) refrained [from taking revenge] and made atonement for his oath, as reported by al-Bazz ā r.” In Royal Aal al-Bayt Institute for Islamic Thought, Jordan (http://www.aalalbayt.org ). 113 . Article 15 of the 2010 Layeha. 114 . Article 14 of the 2010 Layeha, Article 11 of the 2009 Layeha. 115 . Article 19 of the 2010 Layeha, Article 14 of the 2009 Layeha. 116 . Article 70 of the 2010 Layeha, Article 51 of the 2009 Layeha. 117 . One of the first Islamic suicide attacks were on the US embassy in Beirut in 1983 by the Shiite organization Islamic Jihad and the attacks on the US and French forces in Beirut in the same year. In the 1990s, the Palestinian Islamist group Hamas resorted to suicide bombings, giving rise to the polemic on the legality of suicide attack. 9/11 also sparked heated discussion in the Islamic world on the merits of such attacks. See, for example, Haim Malka, “Must Innocents Die? The Islamic Debate over Suicide Attacks,” Middle East Quarterly, 10 (2), (Spring 2003). David Bukay, “The Religious Foundations of Suicide Bombings,” Middle East Quarterly, 13 (4), (2006). 118 . Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.172. 119 . For a useful discussion, see Munir, “Suicide Attacks and Islamic Law”; and for an historical evolution and difference with martyrdom operations, Bernard K. Freamon, “Martyrdom, Suicide and the Islamic Law of War: A Short Legal History,” Fordham International Law Journal, 27 (299), (December 2003). For interpretation based on Qur’an and hadith , Okuda, Wareware ni totteno Jihaado , pp.28–36. 120 . See BBC, “Cleric Condemns Suicide Attacks” (July 11, 2003), or the Ulema meeting in Peshawar attended by 2,000 participants who issued a ruling regarding suicide attacks. Also Dawn, “Suicide Bomber Kills More Than 40 at Afghan Mosque” (October 26, 2012). 121 . Definition from UNAMA, “Suicide Attacks in Afghanistan,” p.20. Here, suicide attack and suicide mission are used interchangeably. 122 . See conclusion of the above report. 123 . See Qur’an: “And spend of your substance in the cause of Allah, and make not your own hands contribute to (your) destruction; but do good; for Allah loveth those who do good [2:195]” and “Nor kill (or destroy) NOTES 225
yourselves [4:29]” in Yusuf, The Holy Qur’an . Also hadith : “None of you should make a request for death because of the trouble in which he is involved, but if there is no other help to it, then say: O Allah, keep me alive as long as there is goodness in life for me and bring death to me when there is goodness in death for me.” In Sahih Muslim Book 035 , Hadith No. 6480. 124 . Ibid. Other frequently cited verses are [2:207], [2:96], and [2:249]. 125 . Taqi al-din Ahmad ibn Taymiya (1263–1328), an Islamic scholar born in Harran (now Turkey). For his fatwas (legal opinions), see Ahmad A. M. Qasim and Muhammad A. A. Qasim, Majmu’ Fatawat Shaykh al-Islam Ibn Taymiyah , Vol. 9, Riyadh: Matba’at al-Hukumah, 1996. 126 . See interview of Qaradawi who also issued Fatwas in this regard. Al-Rayah, “The Qaradawi Fatwas,” Middle East Quarterly (Summer 2004). See for simi- lar translation in Reinhart, “Legitimacy and Authority in Islamic Discussions of ‘Martyrdom Operations’/‘Suicide Bombings,’ p.179. Other Sunni Ulama (erudites of Islam) who support this view are Suleiman ibn Nasser al-‘Ulwan, Salman ibn Fahd al-‘Awdah, Nasser ibn Hamd Al-Fahd (all of Saudi nationality), and ‘Ajeel al-Nashami (Kuwaiti). See also Al-Rayah, “The Qaradawi Fatwas.” 127 . Drawing from Imam Muhammad ibn al-Hasan al-Shaybani, the father of Islamic international law ofseventh to eighth century, see quotations in Sarakhasi, Dar al-kutub ‘Elmiya , Beirut, 1997, p.250. 128 . A view defended by, among others, Sheikh Muhammad bin ‘Abdallah al- Sabil, a member of the Saudi Council of Islamic Clerics and Imam of the Grand Mosque in Makka. For similar view, see also the Syrian-born scholar Abd al-Muni’m Mustafa Halimah (also known as Abu Basir al-Tartusi), Abd al-Muni’m Mustafa Halimah (“Suspicions of Sin in Martyrdom or Suicide Attacks,” November 11, 2005, cited in Reichberg, Religion, War, and Ethics ). 129 . Munir, “Suicide Attacks and Islamic Law,” p.83. 130 . See Qur’an: “If thou fearest treachery from any group, throw back (their cov- enant) to them, (so as to be) on equal terms: for Allah loveth not the treach- erous [8:58].” See also Shaybani, The Islamic Law of Nations—Shaybani’s Siyar , p.7 7. 131 . In chapter on prohibition (denunciation) of branch of faith in Sahih Muslim Book 019 , Hadith No. 4301. Content in parentheses reproduced verbatim. 132 . Mufti Muneeb-ur-Rahman, Qatl-i-Na haq ka hukm (Rule for Unjustified Homicide), cited in Munir, “Suicide Attacks and Islamic Law,” p.78. See also The Nation , “Ulema Issue Fatwa against Suicide Attacks,” May 18, 2009. Also al-Tantawi of al-Azhar University. 133 . “We could provide a million suicide bombers in 24 hours,” The Telegraph (September 4, 2002). For a similar view, see ‘Abd al-‘Azim al-Mit’ani, who says it is permissible under certain circumstances to kill civilians in the cause of jihad. In Haim Malka, “Must Innocents Die? The Islamic Debate over Suicide Attacks,” Middle East Quarterly , 10 (2), (Spring 2003), pp.19–28. 134 . “The suicide operations are of self-defense and a kind of martyrdom, as long as the intention behind them is to kill the enemy’s soldiers, and not women or children.” Sut Al-Ama (Egypt), April 26, 2001, available at http://www. memri.org/report/en/0/0/0/0/0/0/451.htm . 135 . Cook, Understanding Jihad , p.145. 226 NOTES
136 . Article 57(2) and (3) of the 2010 Layeha, Article 41(2) and (3) of the 2009 Layeha. 137 . An episode from the hadith recalls a scene where a man from Yemen expresses Mohammad his wish to join the Jihad: “[The Prophet] asked (him): Have you anyone (of your relatives) in the Yemen? He replied: My parents. He asked: Did they permit you? He replied: No. He said: Go back to them and ask for their permission. If they permit you, then fight (in the path of Allah), otherwise be devoted to them.” In Abu Dawud Book 008, Hadith No. 2524; also Sahih Muslim Book 032 , Hadith No. 6184; Sahih Bukhari Volume 008, Book 073 , Hadith No. 003. 138 . See opinion of National Fatwa Committee, Vol.12, pp.15–18, of the Permanent Committee of Saudi Arabia for Fatw â and Research. 139 . “When people saw the acts, the ethics, and the martyrdom of our fedayi, when our youth saw it, the lists [of suicide bombers] reached such an extent that we cannot provide enough [suicide] waistcoats. We have one fedayi for each tank; we have one fedayi for [. . .] each vehicle of NATO and American forces.” In interview with Ustad Mohammad Yasir in 2004, cited in ICG, “Taliban Propaganda: Winning the War of Words?,” p.24, footnote 166. Fedayeen (redeemers or those who sacrifice) have historically been voluntary military groups not connected to government or organized military groups. 140 . Yusuf, The Holy Qur’an . 141 . Troy, “Prisoners of War in Islam: A Legal Inquiry,” p.47; see also interpreta- tion of the al-Jalalayn in Hamza, Tafsir al-Jalalayn (for verse [47:4]). 142 . Shaheen Sardar Ali and Javaid Rehman, “The Concept of Jihad in Islamic International Law,” Journal of Conflict & Security Law, 10 (3), (2005), p.339. Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.89. The judge of Bagdad, Yaqub ibn Ibrahim al-Ansari (Abu Yusuf, eighth century), said, “Kill prisoners who might prove dangerous to the Muslims, but this is only applicable to those on the chin of whom a razor has passed.” In An-Na’im, Toward an Islamic Reformation , pp.314–315. 143 . Javaid Rehman, Siyar (Islamic International Law), UK Center for Legal Education, 2011, p.61. Shah, Islamic Law and the Law of Armed Conflict . Muhammad Munir, “Debates on the Rights of Prisoners of War in Islamic Law”, Islamic Studies , 49 (4), (2010), pp.463–492 144 . According to philosopher ibn Rushd (1126–1198 CE ), there would be a consensus among classical jurists that non-believers may be captured in war- time, including men, women, and children except monks. Ibn Rushd and Imran Ahsan Khan Nyazee, The Distinguished Jurist’s Primer , Ithaca Press, 2000. 145 . The Shafi‘i school allows execution, enslavement, or release with or without ransom. The Hanafi school similarly agrees on execution, enslavement, and releasing captives against prisoners’ exchange or payment of poll tax ( jizhah ), but there is disagreement on the payment of ransom. The Maliki school makes the payment of the poll tax conditional to the release. Ransom could take place in forms of gold, silver, or armaments or involve some type of work. See Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.89; The judge of NOTES 227
Bagdad, Yaqub ibn Ibrahim al-Ansari (Abu Yusuf, eighth century), says, “Kill prisoners who might prove dangerous to the Muslims, but this is only applicable to those on the chin of whom a razor has passed.” An-Na’im, Toward an Islamic Reformation , pp.314– 315. 146 . Troy, “Prisoners of War in Islam: A Legal Inquiry,” p.51. 147 . Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.93. 148 . The verse “Until the war lays down its burdens [47:4]” is interpreted in the Fasir as “until the war, that is to say, its participants, lay down its burdens, its heavy loads of weaponry and other things, so that either the disbelievers surrender or enter into a treaty.” In Hamza, Tafsir al-Jalalayn . 149 . The slain prisoners are Nadhr bin H ā rith, ‘Ukba, Abul Ozza, and Mu‘ ā wiyah bin Mughī ra after the battle of Badr. Reports about the murder of Nadhr bin H ā rith are said to be not very authentic. In Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.90. The rest were given options of being released against converting to Islam, paying a ransom or teaching ten Muslims to read and write. 150 . In particular, Nadhr bin Hā rith and ‘Ukba during the battle of Badr; in Troy, “Prisoners of War in Islam: A Legal Inquiry,” p.49. Also Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.92. ‘Ukba (or Uqbah ibn Abu Mu’ayt), the prisoner of war, was executed because he had attacked Muhammad while he was praying. See Yamani, “Humanitarian International Law in Islam: A General Outlook,” p.213. 151 . See, for example, ‘Abdullah b. ‘Umar (seventh century), al-Hasan al-Basri (tenth century), ‘Ata, Dhhak b. Muzahim al-Hilali (eighth century), and Ismail b. ‘Abdul Rahman (eighth century) in Troy, “Prisoners of War in Islam: A Legal Inquiry,” p.91. 152 . Hamidullah, Muslim Conduct of State , pp.214–215. 153 . Jonathan E. Brockopp et al., Islamic Ethics of Life, Columbia: University of South California Press, 2003, p.145; Ali and Rehman, “The Concept of Jihad in Islamic International Law,” p.339. 154 . Sayyid Abul Ala Maududi, Human Rights in Islam , Islamabad: Da’wah Academy, 1998, p.34. 155 . Hamidullah, Muslim Conduct of State , p.21 8. 156 . Ibid., p.216. 157 . Syed R. Hassan, The Reconstruction of Legal Thought in Islam , Lahore: Law Publishing Company, 1974, p.176. 158 . “Soldiers or police who have surrendered to the Mujahedin and are repentant shall not be executed.” In Article 14 of the 2010 Layeha. See also Article 10 of 2009, which does not mention repentance. 159 . Such as in various verses of the Qur’an [24:31], [25:70], [66:08]. 160 . “Rather, whatever verdict has been decided, according to shari’a law, shall be implemented.” In Article 15 of the 2010 Layeha. 161 . For pertinent comment, see Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.95. His translation correctly reflects the term ta‘zir . See also trans- lation of Shah, “The Islamic Emirate of Afghanistan: A Layeha (Rules and Regulations) for Mujahidin.” 228 NOTES
162 . “Apart from the Imam, Najib Imam and the Judge nobody has the right to issue a ta‘zir punishment. If a District Judge, without the presence of the Provincial Judge, should issue the ta‘zir execution punishment, the dis- trict judge should receive permission from the provincial judge. However, in those provinces where the provincial judge has not been appointed yet, any determination on execution and issues related to ta‘zir punish- ment shall be at the discretion of the governor.” In Article 6 of the 2010 Layeha. 163 . An-Na’im, Toward an Islamic Reformation , p p.101–136. 164 . The five hudud crimes are sariqa (theft), haraba (highway robbery), zina (adultery/fornication), qadhaf (slander), and shorb al-khamar (drinking alcohol). 165 . The Qur’an refers to Qesas in [2:178–9], [5:45], and [17:33]. 166 . G. Benmelha, “Ta’azir Crimes,” The Islamic Criminal Justice System , ed. C. Bassiouni, New York: Oceana Publications, 1982; An-Na’im, Toward an Islamic Reformation , p.119. 167 . Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law,” p.97. 168 . Ibid. 169 . Clark, “The Layha,”Appendix 1, p.3. 170 . Defined as “God’s way of bringing believers to faith and the means by which prophets call individuals and communities back to God.” In John Esposito, The Oxford Dictionary of Islam , Oxford: Oxford University Press, 2003. 171 . Originally describing the Medinan citizens who helped Mohammad on the arrival to the city. 172 . P. Centlivres, “The Afghan Refugee in Pakistan: An Ambiguous Identity,” Journal of Refugee Studies, 1 (2), (1988). 173 . Article 40 of the 2010 Layeha, Article 34 of the 2009 Layeha. Translation of Clark, “ The La yha.”
6 Comparison with International Humanitarian Law 1. “In an eerie echo of the Geneva Conventions, which prohibit the photo- graphing of prisoners, one edict states: “If someone is sentenced to death, he must be killed with a gun, and photographing the execution is forbidden.” In Rubin and Shah, “Taliban Overhaul Image to Win Allies”; see also Clark, “The Layha,” pp.22–26. 2 . N.B. Islamic law considerably influenced the formation of IHL. See, for exam- ple, Mahmassani, “The Principles of International Law in the Light of Islamic Doctrine.” Also Yadh Ben Ashoor, “Islam and International Humanitarian Law,” International Review of the Red Cross, 20 (215), (April 1980). 3 . Statement signed by Gulbudin Hekmatyar in “The Leaders of Afghanistan’s Resistance Groups Called on the U.N. to order Withdrawal of Soviet Troops,” PR Newswire , October 24, 1985. 4 . See chapter 2 . 5 . Crews, “The Taliban and Nationalist Militancy in Afghanistan,” p.353. 6 . Former Taliban official of ministry of foreign affairs. In Muzhdah, Afghanistan wa panj sal sulta-ye Taleban (Afghanistan Under Five Years of Taliban Sovereignty), p.83, italics added. 7 . Crews, Moderate Taliban? , p.250. NOTES 229
8 . UN Economic and Social Council, “Question of the Violation of Human Rights and Fundamental Freedom in any Part of the World,” Report on the Situation of Human Rights in Afghanistan Submitted by Mr. Kamal Hossain, Special Rapporteur, in Accordance with Commission Resolution 2000/18, E/ CN.4/2001/43 , March 9, 2001; UNHCHR, “Situation of Human Rights in Afghanistan,” Commission on Human Rights Resolution 2001/13, Geneva, 2001. 9 . Rahimullah Yusufzai, “Taliban Reject UN Report on Violation of Women’s Rights,” The News International , March 13, 2000. 10 . Taliban official Suhail Shaheen condemns the indiscriminate bombing attacks in Xinhua: “2,000 Afghans Killed in US Bombing: Taliban,” November 11, 2001. 11 . Taliban official Abdul Salam Zaeef said that “it is our message to the Muslims of America and all human rights organizations that they should show their opposition to such atrocities being made by America against the people of Afghanistan.” AFP, “Taliban Deny US Air Supremacy, Claim High Civilian Toll,” October 10, 2001. See also statement of Taliban Education Minister Amir Khan Muttaqi who condemned the alleged use of cluster bombs: “The international human rights organizations should put pressure on the Americans not to use [them].” AFP, “US Jets Pound Kabul, More Civilians Reported Killed,” October 26, 2001. 12 . Below are examples of various statements touching on the principles of inter- national norms: – “The crusader forces started randomly bombing the villages and the non- municipal areas in order to kill hundreds of innocent people from the res- idents of the area.” Interview with Taliban commander Almullah Akhthar Muhammad Mansur, in The NEFA Foundation, “Al-Somood Interview of the Taliban’s Military Commander—Kandahar District” (2007). – “The world must take notice that basic human rights [. . .] and other human values are being violated by American troops with impunity under the notori- ous war on terror.” In Unjustmedia, Human Rights Violations in Afghanistan, October 4, 2009, available at http://theunjustmedia.com/Afghanistan/ Statements/Oct09/Human%20Rights%20Violations%20in%20Afghanistan. htm , accessed July 14, 2010. – All human rights organizations that claim to be advocates of human rights should promptly, and as per their responsibility, take steps to pre- vent occurrence of such brutal acts. In Omar, Omar on the Eve of Eid ul Odha , November 25, 2009, italics added, available at www.alemarah.info/ english/index.php?option=com_content&view=article&id=623:messag e-of-felicitation-of-the-esteemed-amir-ul-momineen-on-the-eve-of-eid-ul- odha&catid=5:statement- , accessed March 9, 2010. 13 . Telephone interview conducted by Amnesty International on October 25, 2006, “Afghanistan—All Who Are Not Friends, Are Enemies: Taleban Abuses against Civilians,” p.32. 14 . See Jean Pictet, The Principles of International Humanitarian Law , Geneva, 1967; and Development and Principles of International Humanitarian Law , ed. Nijhoff Dordrecht, 1985. The current IHL developed from two main sources, the Law of Geneva, that is, a body of rules that protect victims of war, and the Law of the Hague, that is, those provisions that affect the conduct of hostilities. Franç ois Bugnion, “Law of Geneva and Law of the Hague,” 230 NOTES
International Review of the Red Cross, 83 (844), (December 2001). Given the growing interdependence and convergence between the two, the distinction has become less relevant in recent years. 15 . The two official Taliban websites are http://theunjustmedia.com and http:// shahamat.info (English: http://Qur’an.shahamat-english.com ). The latter offers various language versions in Pashto, Arabic, Urdu, and Farsi with fre- quent updates reflecting organizational sophistication in running the web- site. 16 . A copy of the Directive was obtained from an international newspaper (see Annex II of this book). The Directive itself does not make reference to the Layeha, but many provisions of the Directive relate and allude to the provi- sions of the Layeha. 17 . ICRC, “What Is International Humanitarian Law?,” Geneva, July 2004, pp.1–2. 18 . Depending on how the situations are legally defined, the rules that apply vary from one case to the next. In Sylvain Vite, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations,” International Review of the Red Cross, 91 (873), (March 2009), p.70. 19 . See Article 8(2)(b) and (c) of the Rome Statute of the International Criminal Court, July 17, 1998. 20 . This is confirmed by the Appeals Chamber of ICTY, which advanced two criteria for the classification of non-international armed conflict, namely the existence of protracted armed conflict and a certain level or organization of the ANSA. See ICTY, The Prosecutor v. Dusko Tadic , judgment, IT-94–1-T, May 7, 1997, paras. 561–568; see also ICTY, The Prosecutor v. Fatmir Limaj , judgment, IT-03–66-T, November 30, 2005, para. 84. Protracted is defined in practice as “intensity of armed conflict” rather than its “duration.” See ICTY, Prosecutor v. Haradinaj , Case No. IT-04–84– 84-T, judgment (Trial Chamber), April 3, 2008, para. 49. APII has a higher threshold of applicability than that of the Common Article 3 since the former only covers conflicts that are solely between the state and organized armed groups (and not between organized armed groups) and makes applicability dependent on the control over territory by the ANSA. Also Michael Schmitt, “The Status of Opposition Fighters in a Non-International Armed Conflict,” Non-International Armed Conflict in the Twenty-First Century, ed. Kenneth Watkin and Andrew J. Norris, Newport: Naval War College, 2012, p.120. 21 . See full list in ICTY, Prosecutor v. Haradinaj, Case No. IT-04–84–84-T, judg- ment (Trial Chamber), April 3, 2008, para. 49. 22 . Both the Common Article 3 and APII apply to armed conflict only and not to situations of “internal disturbances and tensions, such as riots, isolated and spo- radic acts of violence and other acts of a similar nature, as being armed conflicts” (Article 1(2) of APII). See Vite, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations,” p.76. 23 . United Nations, “Security Council Resolution,” New York, S/RES/1746 (2007). “[The resolution] calls upon all parties to uphold international humanitarian and human rights law and to ensure the protection of civilian life [in Afghanistan],” para. 25; see also para. 18. 24 . Annyssa Bellal et al., “International Law and Armed Non-State Actors in Afghanistan,” International Review of the Red Cross, 93 (881), (March 2011), p.52. NOTES 231
25 . Ibid. Also Pictet, Development and Principles of International Humanitarian Law , p.4; Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law , Massachusetts: T. J. International Ltd., 2013, p.10. 26 . Common Article 2 to the Geneva Conventions. 27 . Article 1(1) of APII defines ANSAs as “armed forces and dissident armed forces or other organized armed groups.” 28 . Common Article 3 to the Geneva Conventions uses “parties to the conflict,” which includes government forces as well as ANSAs. 29 . At the same time, the Northern Alliance, with the assistance of the Coalition Forces, opposed the Taliban regime with armed force, which lent the conflict a non-international character. Thus, there was, strictly speaking, a coexistence of an international and a non-international conflict at times in the Afghan war at the end of 2001. In C. Greenwood, “International Law and the ‘War against Terrorism,’” International Affairs, 78 (2), (2002), p.309. 30 . Geneva Academy, Rule of Law in Armed Conflicts Project—Afghanistan, June 2012, pp.51–52. As for the date, interpretation might differ in favor of at least five possible dates: the first is the establishment of an Interim Authority in December 2001 by the Bonn Agreement; the second possibility is the appoint- ment of Karzai by the Loya Jirga (grand assembly) in June 2002 as president of the Transitional Authority; the third possibility is the adoption of the new constitution in January 2004; the fourth possibility is the presidential election of Karzai in October 2004; and the fifth possibility is the parliamentary elec- tion in 2005. ICRC seems to consider June 2002 (second possibility) as the most probable date qualifying for non-international armed conflict. In Bellal et al., “International Law and Armed Non-State Actors in Afghanistan,” p.52. For a view in favor of the third possibility, see Gary D. Solis, The Law of Armed Conflict , Cambridge: Cambridge University Press, 2010, p.211. 31 . As for customary law, various international bodies have acknowledged the applicability of Common Article 3 and major parts of APII to ANSAs as cus- tomary law. For example, the ICJ advances that Common Article 3 reflects elementary considerations of humanity, “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America ),” judgment of June 27, 1986 (Merits), para. 218, citing the Corfu Channel Case of ICJ, judgment of April 9, 1949 (Merits), para. 2. In “Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons,” the Court reasoned along the same lines, stipulating that the Geneva Conventions, including Common Article 3, are “principles of customary law.” In ICJ, “Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons” (July 8, 1996). As for APII, the Yugoslavia Tribunal advanced that many provisions of the Protocol could be regarded as declaratory of existing rules or crystallizing of emerging rules of customary law. In ICTY, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,” Prosecutor v. Dusko Tadic (October 2, 1995). It does not specify which provisions, but it appears to refer to norms overlapping with Common Article 3, such as Article 4(2) of APII and pos- sibly Articles 5 and 6. For a similar conclusion, see Eve La Haye, War Crimes in Internal Armed Conflicts , New York: Cambridge University Press, 2008, pp.53–54. See also Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law, Cambridge: Cambridge University Press, 2002, p.19. Frits Kalshoven, “Applicability of Customary International Law in 232 NOTES
Non-International Armed Conflicts,” Reflections on the Law of War—Collected Essays , Leiden: Martinus Nijhoff Publishers, 2007. Michael J. Matheson, “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy , 2 ( 1987). 32 . See note 14 of this chapter. 33 . ICJ, “Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,” para. 78. According to the Commentaries to the 1977 Additional Protocol I to the 1949 Geneva Conventions, IHL would collapse without this commitment to distinguish, so crucial is this “foundation on which the codi- fication of the laws and customs of war rests.” In Jean Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , ed. International Committee of the Red Cross, Geneva: Martinus Nijhoff Publishers, 1987, para. 1863. 34 . Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict , New York: Cambridge University Press, 2008, p.115. 35 . See Article 50(1) of API: “A civilian is any person who does not belong to one of the categories of persons referred to in Article 4(a)(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.” In Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , para. 1913. See also Rule 5 of ICRC Customary Law Study: “Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.” 36 . For international armed conflict, the principle is found in Articles 48, 51(2), and 52(2) of API. The prohibition of making civilians the object of attack is also laid down in the Protocols to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personal landmines. For customary law, see Rule 1 of ICRC Customary Law Study. 37 . See definition of combatant according to Article 33 of the Third Geneva Convention. Members of religious personnel of the armed forces, like medi- cal personnel, are not combatants (Article 43(2) of API) and cannot be taken prisoners of war but can be retained with a view to assist prisoners of war. 38 . Articles 43(2), 51(3), and 67(1)(e) of the API. See also Rule 6 of ICRC Customary Law Study. 39 . Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict , p.27; Solis, The Law of Armed Conflict , p .202. 40 . The Guidance was drafted after several rounds of discussions with a number of experts and practitioners, but it solely expresses the view of the ICRC and is not a legally binding document. Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities,” p.6. 41 . Ibid., pp.46–64. The other conclusion of the study is to give civilians whose continuous function it is to take a direct part in hostilities (“continuous com- bat function”) the equivalent status of a (quasi) combatant in non-interna- tional armed conflict. 42 . Moir, The Law of Internal Armed Conflict, p.4; Hersch Lauterpacht, Recognition in International Law , Cambridge: Cambridge University Press, 1947, pp.270–271; Frits Kalshoven, “The First Session of the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 20 February–29 March 1974,” Reflections on the Law of War, ed. Frits Kalshoven, Leiden: Martinus Nijhoff Publishers, 2007, pp.105–106. NOTES 233
43 . Article 1(1) of APII. 44 . “Fighters are members of armed forces and dissident armed forces or other organized armed groups, or taking an active (direct) part in hostilities.” In Michael N. Schmitt et al., “The Manual on the Law of Non-International Armed Conflict—With Commentary,” ed. International Institute of Humanitarian Law, San Remo, 2006, p.4. The San Remo Manual on the Law of Non-International Armed Conflict was drafted mainly by three IHL schol- ars (Yoram Dinstein, Chalres Garraway, and Michael Schmitt) as a private initiative of International Institute of Humanitarian Law. 45 . For non-international conflict, see Article 13(3) of the APII. See also Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities,” p.27. 46 . Ibid., p.34. 47 . Article 57 of the 2011 Layhea translated by Clark, “The Layha,” Appendix 1. Other translations use important and high-value targets—see Munir, “Annex—The Layha for the Mujahideen: An Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law”—or “high-level targets”—see Shah, “The Islamic Emirate of Afghanistan: A Layeha (Rules and Regulations) for M ujahidin.” 48 . Article 7 of the 2006 Layeha. 49 . Article 26 of the 2006 Layeha. 50 . Translation of Clark, “The Layha.” Munir translates the “identification of target” by “clarifying their aim.” 51 . Article 57(2) and (3) of the 2010 Layeha and Article 41(2) and (3) of the 2009 La yeha. 52 . The stance toward foreign journalists has been favorable in general, but kid- nappings have occurred in the past (but no killings). 53 . Article 8 of the 2010 Layeha and Article 6 of the 2009 Layeha. 54 . “If UNAMA considers officials of Kabul admin, police, soldiers, intelligence workers and employees of other sensitive and detrimental organs as civilians, then their own analysis is inaccurate which means nothing but a baseless pro- paganda.” In Shahamat website, “Rejoinder of the Islamic Emirate about the Recent Report of UNAMA Regarding the Civilian Casualties” (July 31, 2013). 55 . “The Islamic Emirate of Afghanistan supports and lends a hand to all those programs which works for the health care of the helpless people of our coun- try. [. . .] The foreign employees should refrain from going to the region and similarly the campaign should be harmonized with the regional conditions, Islamic values and local cultural traditions. In case of compliance with these rudiments, all the associated workers (Mujahidin) of the Islamic Emirate of Afghanistan are directed, not to create any kind of trouble for them, rather they should be provided with all necessary support.” In Shahamat website, “Declaration of the Islamic Emirate of Afghanistan Regarding the Polio Vaccination” (May 13, 2013). Also IRIN, “Afghanistan: Taliban Gives Nod to Polio Immunization in South” (September 14, 2009); April Chang et al., “Eradicating Polio in Afghanistan and Pakistan,” Washington, DC, August 2012. 56 . Leornard Rubenstein, “Defying Expectations: Polio Vaccination Programs Amid Political and Armed Conflict,” USIP Peacebrief, 64 (November 3, 2010), p.3; Ashley Jackson and Antonio Giustozzi, “Talking to the Other Side: 234 NOTES
Humanitarian Engagement with the Taliban in Afghanistan,” Humanitarian Policy Group Working Paper, Overseas Development Institute, London, 2012, p.6. As for health activities in general, a member of an INGO specialized in security said: “Health is the least controversial (for the Taliban) because everybody needs health care and it is the easiest domain to show neutrality,” in interview with M., Kabul, November 12, 2012. 57 . Article 11 of the 2010 Layeha. 58 . Articles 11, 25, and 26 of the 2010 Layeha. 59 . Article 11 of the 2010 Layeha. 60 . Article 24 of the 2010 Layeha. 61 . Section 3 of the 2010 Layeha. 62 . In Shahamat website, “An Open Letter to the UNAMA about the Biased Behavior of this Organization” (February 25, 2013). 63 . Islamic Emirate of Afghanistan, The Valuable Services of the Red Cross in Reducing the Sufferings of Afghans (June 9, 2012). 64 . See, for example, account of freelance journalist Fergusson, Taliban: The Unknown Enemy , Chapter 13, “Hot to Talk to the Taliban,” in particular. 65 . Shahamat website, “An Open Letter to the UNAMA about the Biased Behavior of this Organization.” 66 . Article 13 of the 2010 Layeha. 67 . Article 20 of the 2010 Layeha. 68 . Article 8 of 2009 Directive in Annex II of this book. 69 . However, the permission to kill civilians aiding the enemy should be read in conjunction with Article 9 of the 2009 Directive, which puts some reserva- tions at least for engineers: “Any Afghan technician or engineer working on road construction in the country, or building construction, shall not be killed on the spot. He shall be transferred to the Shura and the Shura shall decide. If a guarantee is obtained from a third person that he will not re-engage in his activity, he will be released.” 70 . In Shah, “The Taliban Layeha for Mujahidin and the Law of Armed Conflict,” p.209. 71 . Article 81 of the 2010 Layeha and Article 63 of the 2009 Layeha. 72 . See Article 37(1) of the API for international armed conflict. Perfidy is not mentioned explicitly in APII for non-international conflict, but it is suggested to be part of customary law according to Rule 65 of ICRC Customary Law Study. Perfidy is different from ruse as the latter does not intend “to deceive the adversary by inviting his confidence that the rules will be duly respected and that they will afford protection.” In Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , pa ra. 15 25. 73 . Richard B. Jackson, “Perfidy in Non-International Armed Conflicts,” Non- International Armed Conflict in the Twenty-first Century, ed. Kenneth Watkin and Andrew J. Norris, US Naval War College, 2012. 74 . “If only the fact of killing, injuring or capturing an adversary by resort to perfidy constitutes a perfidious act, the question arises what an unsuccessful attempt would be called. [. . .] This grey area forms a subject of permanent controversy in practice as well as in theory.” In Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , para. 1492. The Statute of ICC only applies perfidy (killing or wounding treacherously a combatant adver- sary) to non-international armed conflict (Article 8(2)(e)(ix)). 75 . Article 81 of the 2010 Layeha and Article 63 of the 2009 Layeha. NOTES 235
76 . ICJ, “Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,” para. 79. 77 . William Fenrick, “The Rule of Proportionality and Protocol I in Conventional Warfare,” Military Law Review, 98 (1), (1982). 78 . See “Practice Relating to Rule 14. Proportionality in Attack” in Customary Study, which only mentions the Two Additional Protocols as treaty laws codi- fying the proportionality principle. 79 . Article 51(5)(b) of API of international armed conflict. APII for non-inter- national armed conflict does not explicitly refer to the principle of propor- tionality of attack but is suggested to be part of customary law according to Rule 14 of ICRC Customary Law Study. Judicial practice also confirms the customary status of Article 51(5), such as: ICTY, Prosecutor v. Kupreskic et al. (Trial Chamber), IT-95–16-T, January 14, 2000, para. 524; Council of Europe: European Court of Human Rights, judgment, Isayeva v. Russia , 57950/00, February 24, 2005, para. 102; High Court of Justice (of Israel), judgment, The Public Committee against Torture v. Prime Minister , HCJ 769/02, December 1, 2006, para. 8 (Targeted Killing Case). 80 . Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , para. 2210. 81 . Ibid. 82 . Ibid,pa ra. 1980. 83 . T. McCormack and P. Mtharu, Expected Civilian Damage & The Proportionality Equation: Intemational Humanitarian Law & Explosive Remnants of War , ed. Asia Pacific Centre for Military Law, University of Melbourne Law School, 2006, p.4; Ben Clarke, “Proportionality in Armed Conflicts: A Principle in Need of Clarification?,” International Humanitarian Legal Studies , 2012, p.78. 84 . Alexander Breitegger, Cluster Munitions and International Law: Disarmament with a Human Face? , London: Routledge, November 2011, p.48. 85 . Article 57(2) of the 2010 Layeha and Article 41(2) of the 2009 Layeha. 86 . Article 57(3) of the 2010 Layeha and Article 41(3) of the 2009 Layeha. 87 . Article 51(5)(b) of API. See note 78 of this chapter. 88 . Article 57(1) of the 2010 Layeha and Article 41(1) of the 2009 Layeha. 89. Article 57(1) of API for international armed conflict. Additional Protocol II does not explicitly mention precautionary measures as it was dropped at the last moment as part of a package aimed at the adoption of a simplified text. The ICRC Customary Law Study, however, argue that Article 13(1) of APII call- ing for general protection of civilian population and individual civilians against the dangers arising from military operations can hardly be achieved without considering “precautionary measures.” See Rule 15 of ICRC Customary Law Study. In conjunction, see also Article 58(c) of API and Rule 22 of ICRC Customary Law Study, which relate to the protection of “the civilian popula- tion and civilian objects under their control against the effects of attacks.” 90 . Ibid. 91 . Article 65 of the 2010 Layeha; also Article 46 of the 2009 Layeha. 92 . Point four of the message on the back cover of the 2010 and 2009 Layeha. 93 . See Articles 56 and 57 of the 2010 Layeha: “Article 56: Those valiant warrior Mujahids who are entering the enemy centre in order to conduct a group armed attack should consider the following points: 236 NOTES
1. These valiant warrior Mujahids should receive a good training and each of them should be given particular tasks. 2. These valiant warrior Mujahids should be very well supplied and equipped in order to be able to resist for a long time and inflict a lot of damage on thee nemy. 3. The Mujahids and their leaders should receive in advance full information and understanding about the area they are going to attack. Article 57: Regarding martyrdom attacks, the four following points should be considered: 1. A martyr Mujahid should be well-trained prior to the attack. 2. A martyrdom attack should be used for important and high-value targets. The self-sacrificing heroes of the Islamic Ummah must not be used for low and worthless targets. 3. In martyrdom attacks, much more care should be taken to prevent the deaths and injuries of common people. 4. Apart from those Mujahids who received an individual programme and permission from the Leadership, all other Mujahids must receive permis- sion and instructions from the person responsible in the province before carrying out martyrdom attacks.” Translation in Annex III of this book. 94 . Article 16 of the 2009 Directive. 95 . Article 24 of the 2009 Directive, italics added. 96 . Such as “pay full attention to the prevention of civilian casualties.” In Mullah Omar, “Message of Felicitation of the Esteemed Amir-Ul-Momineen (May Allah Protect Him) on the Occasion of the Eid-Ul-Odha,” Shahamat web- site (October 24, 2012). 97 . Shahamat website, “An Open Letter to the UNAMA about the Biased Behavior of this Organization.” See also statement: “Our Mujahideen never place live landmines in any part of the country but each mine is controlled by a remote and detonated on military targets only.” In Shahamat web- site, “Reaction of Islamic Emirate Regarding Accusations of UNAMA about Explosive Devices (October 21, 2012). 98 . In Mullah Omar, “Message of Felicitation of the Esteemed Amir-Ul- Momineen on the Occasion of Eid-Ul-Odha,” Shahmat website (November 4, 2011), italics added. It is noteworthy that the English version of the state- ment uses the term “precautionary measures,” a possible indication that the Taliban consciously use the IHL term. 99 . “Both the April and November statements place the responsibility of protec- tion on the civilian population which runs counter to the spirit and prin- ciples of international humanitarian law.” In UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict,” Kabul, 2012 (for 2011),p.1 4. 100 . Rule 47 of ICRC Customary Law Study. 101 . Article 4 of Third Geneva Convention; Articles 43 and 44 of API. See also Knut Doermann, “The Legal Situation of ‘Unlawful/Unprivileged Combatants,’” International Review of the Red Cross, 85 (849), (March 2003). The difference in this concept between international and non-inter- national armed conflict is not explained in the Geneva Conventions. See Federal Political Department, “Final Record of the Diplomatic Conference of Geneva of 1949,” Volume II Section B, Berne, 1963, pp.44, 49, and 322. For criticism, see Volume II Section B, pp.50 and 99. Also Federal NOTES 237
Political Department, “Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,” Volume 5, Berne, 1978, p.91, para. 6; Volume 8, p.359, para. 15; Volume 5, p.187, paras. 20–21. For criticism, see Volume 8, p. 293, para. 41. 102 . Article 44(1) of API. 103 . “Legitimacy of violence depends on whether violent acts are the acts of indi- viduals, or whether they are state-sanctioned [. . .] Individuals who commit crimes are acting without government sanction, and therefore their vio- lence is illegitimate.” In Miriam J. Aukerman, “War, Crime or War Crime? Interrogating the Analogy between War and Terror,” Enemy Combatants, Terrorism, and Armed Conflict Law: A Guide to the Issues , ed. David Linnan, Westport: Greenwood Publishing, 2008, p.148. 104 . Pictet, Commentary on the Additional Protocols I and II of 8 June 1977, para. 4618. 105 . Henckaerts et al., Customary International Humanitarian Law. Practice Relating to Rule 159 Amnesty. It must be remembered, however, that the practice of amnesty granted by the ANSAs is conspicuously missing from the list. 106 . Although the term detainee would be more appropriate than prisoner under IHL in non-international conflict, the term prisoner is upheld here as used in the Layeha for the sake of consistency. 107 . Article 7 of the 2010 Layeha, Article 11 of the 2009 Layeha. 108 . Article 41 of API. This prohibition is also mentioned in Article 4 (1) of APII, which adds that “it is prohibited to order that there shall be no survivors.” 109 . Article 7 of the 2010 Layeha. 110 . Article 5 of the 2010, Article 5 of the 2009 Layeha. 111 . “Common Article 3, by contrast, affords some minimal protection, fall- ing short of full protection under the Conventions, to individuals associ- ated with neither a signatory or even a non-signatory, who are involved in a conflict in the territory of a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not).” In Hamdan v. Rumsfeld, Secretary of Defense, et al. , Supreme Court of the United States (2006). 112 . The relevant provisions are the Common Article 3 to Geneva Conventions; Article 12 of First Geneva Convention; Article 12(1) of Second Geneva Convention; Article 13 of Third Geneva Convention; Articles 5 and 27(1) of Fourth Geneva Convention; Rule 87 of ICRC Customary Law Study. 113 . Common Article 3 to Geneva Conventions; Article 50 of First Geneva Convention; Article 51 to Second Geneva Convention; Article 130 of Third Geneva Convention; Article 75(2)(a) of API; Article 4(2)(a) of APII; Rule 89 of ICRC Customary Law Study. 114 . Specific to mutilation, see Common Article 3 to Geneva Conventions; Article 13 of Third Geneva Convention; Article 32 of Fourth Geneva Convention; Rule 92 of ICRC Customary Law Study. The ICC Statute considers mutila- tion to be a war crime in both international (Article 8(2)(b)(x)) and non- international armed conflict (Article 8(2)(c)(i)). 115. Common Article 3 to Geneva Conventions; Article 12(2) of First Geneva Convention (torture); Article 12(2) (torture) of Second Geneva Convention; Article 17(4) (physical or mental torture); Articles 87(3) (torture or cruelty) 238 NOTES
and 89 (inhuman, brutal or dangerous disciplinary punishment) of Third Geneva Convention; Article 32 of Fourth Geneva Convention (torture and other measures of brutality); Rule 90 of ICRC Customary Law Study. Article 2(2) of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment equally prohibits torture in all circumstances. Furthermore, the prohibition of torture is recognized as a jus cogens norm in various jurisprudence, such as in the decisions of the ICTY (Trial Chambers), for example, in the following cases: Furundzija , December 10, 1998, Jelisic , December 14, 1999; Kupreskic and Others , January 14, 2000; Kunarac , February 22, 2001; and Krstic , August 2, 2001. For national leg- islations, see E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law,” European Journal of International Law , 200 4. 116 . Common Article 3(1)(d) to Geneva Conventions. In analogy to international armed conflict, Article 12 of Third Geneva Convention states, “Prisoners of war are in the hands of the enemy Power, but not of the individuals or mili- tary units who have captured them. Irrespective of the individual responsi- bilities that may exist, the Detaining Power is responsible for the treatment given them.” See also Shah, “The Taliban Layeha for Mujahidin and the Law of Armed Conflict,” p.199. 117 . Common Article 3 provides that “ each Party to the conflict shall be bound to apply [. . .] the following provisions.” 118 . Deborah Casalin, “Taking Prisoners: Reviewing the International Humanitarian Law Grounds for Deprivation of Liberty by Armed Opposition Groups,” International Review of the Red Cross, 93 (883), (September 2011), p.744; Cedric Ryngaert, “Enhancing and Enforcing Compliance with International Humanitarian Law by Non-State Armed Groups: An Inquiry into Some Mechanisms,” Journal of Conflict & Security Law, 16 (3), (Winter 2011), p.469. 119 . Jelena Pejic, “Procedural Principles and Safeguards for Internment/ Administrative Detention in Armed Conflict and Other Situations of Armed Violence,” International Review of the Red Cross, 87 (858), (June 2005). 120 . Under Common Article 3, armed groups cannot adopt their own crimi- nal law, establish courts, or try detainees, while this possibility is envisaged in Article 6 of APII. Still, armed groups have the obligation to refer per- sons detained by them to the regularly constituted courts. See also Sassoli, “Engaging Armed Non-State Actors with International Humanitarian Law.” 121 . Casalin, “Taking Prisoners: Reviewing the International Humanitarian Law Grounds for Deprivation of Liberty by Armed Opposition Groups,” p.744. 122 . Article 15 of the 2010 Layeha. 123 . Article 70 of the 2010 Layeha, Article 51 of the 2009 Layeha. 124 . Article 14 of the 2010 Layeha, Article 11 of the 2009 Layeha. 125 . Article 12 of the 2010 Layeha. 126 . Article 18 of the 2010 Layeha, Article 14 of the 2009 Layeha. 127 . Article 19 of the 2010 Layeha, Article 15 of the 2009 Layeha. 128. Article 18 of the 2010 Layeha, Article 15 of the 2009 Layeha. 129 . Article 20 of the 2010 Layeha, Article 17 of the 2009 Layeha. 130 . Article 22 of the 2009 Directive. NOTES 239
131 . Article 13 of the 2010 Layeha, Article 10 of the 2009 Layeha. In a state- ment, the Taliban referred to the same Article(s) to justify the killing of a detained British soldier: “To wrench the pretext from the hands of the enemy which they used for their ongoing atrocities, the Islamic Emirate had no way but to implement Article 13 of the Layeha of Mujahideen and killed the British soldier.” In Qari M. Yousaf Ahmadi, “Remarks of the Spokesman of the Islamic Emirate Regarding the Killing of the British Soldier,” Shahmat website (July 5, 2011). 132 . Articles 10 and 12 of the 2010 Layeha, Article 9 of the 2009 Layeha. 133 . In analogy with API: “When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation [. . .], they shall be released and all feasible precautions shall be taken to ensure their safety.” In Article 41(3) of API to Geneva Conventions. The release should be a humanitarian gesture and not to get rid of the encumbering prisoner. In Pictet, Commentary on the Additional Protocols I and II of 8 June 1977 , p ara. 1627. 134 . Articles 10 and 12 of the 2010 Layeha; Articles 7, 8, 9, and 20 of the 2009 Layeha; Article 7 of the 2006 Layeha. 135 . Article 21 of the 2010 Layeha, Article 18 of the 2009 Layeha. The 2009 Layeha forbids “taking pictures,” whereas 2010 Layeha forbids “filming and taking photogr aphs.” 136 . For comparison, see treatment of the dead in IHL albeit only in interna- tional conflict: Article 16 of First Geneva Convention, Article 20 of Second Geneva Convention, Article 120 of Third Geneva Convention, Article 130 of Fourth Geneva Convention, and Article 23 of API. 137 . For similar conclusion, see Shah, “The Taliban Layeha for Mujahidin and the Law of Armed Conflict,” p.205. 138 . Shahamat website, “Communique of the Islamic Emirate about the Release of Turkish Captives” (May 13, 2013). See also statement of US prisoner Pfc. Bowe Bergdahl held by the Taliban since June 2009: “I am given the freedom to exercise and given the freedom to be a human being even though I am a prisoner.” In Zabiullah Mujahid, “American Captured Soldier Bowe Robert Bergdahl ‘Plea to His Government,” Islamic Emirat of Afghanistan (April 7, 2010); The Guardian , “Taliban Release Video of Captured US Soldier” (July 2009). Bergdahl was released on May 31, 2014, in exchange for five Taliban members held at the detention center at Guantanamo Bay. 139 . Zabihullah Mujahed, “Remarks of Zabihullah Mujahid Regarding UN Report about Torture in Detention Centers,” Shahamat website (October 12, 2011); Shahamat website, “For How Long Untoward Conduct with the Prisoners?” (January 28, 2013). 140 . Shahamat website, “Statement of Islamic Emirate Regarding Hunger Strike by Inmates in Guantanamo” (May 2, 2013); “Reaction of Spokesman of Islamic Emirate Regarding Shooting of Oppressed Guantanamo Prisoners” (April 16, 2013). 141 . Pictet, Commentary on the Additional Protocols I and II of 8 June 1977, para. 4515. 142 . Article 4(2)a of APII. 143 . Article 4(2)c of APII. 144 . Article 4(2)e of APII. 145. Article 4(2)g of APII. 240 NOTES
146 . Article 4(3)c of APII. 147 . Article 38(3) of the 1989 Convention on the Rights of the Child, A/ RES/44/25 of November 20, 1989, entered into force on September 2, 1990. 148 . Article 2 of the Optional Protocol on the Involvement of Children in Armed Conflict, A/RES/54/263 of May 25, 2000, entered into force on February 12,2002. 149 . Article 65 of the 2010 Layeha, Article 46 of the 2009 Layeha. 150 . Article 71 of the 2010 Layeha, Article 52 of the 2009 Layeha. 151 . Article 73 of the 2010 Layeha, Article 54 of the 2009 Layeha. 152 . Article 69 of the 2010 Layeha, Article 50 of the 2009 Layeha. 153 . In May 2011, approximately 100 children were said to be detained by the National Intelligence Directorate on charges of attempting suicide attacks on behalf of the Taliban. In IRIN, “Afghanistan: Taliban Deny Children Being Used as Suicide Bombers” (May 23, 2011). On Eid day of 2011, President Karzai strongly accused the Taliban of recruiting minors for suicide attacks and released a few to their families. In Kakar, “Taliban Deny Using Children for Suicide Attacks.” 154 . Omar, Remarks of the Spokesman of the Islamic Emirate Regarding the Baseless Claim of Presence of Children in the Ranks of Mujahideen. Mullah Omar, “Statement of the Islamic Emirate in Response to the Propaganda about Recruitment of Children in Martyrdom-Seeking Attacks” (September 6, 2011) . 155 . Article 69 of the 2010 Layeha, Article 50 of the 2009 Layeha. 156 . “Less than 10 percent of the population had birth certificates.” In Department of State, “2010 Human Rights Report: Afghanistan.” 157 . For respect and protection of humanitarian relief personnel, see Article 71(2) of API. As for APII, Article 18(2) requires organization of relief personnel for civilians in need but does not have any provision on the protection of humanitarian relief personnel. See Rule 31 of ICRC Customary Law Study. For medical personnel, see Articles 24–26 of First Geneva Convention, Article 36 of Second Geneva Convention, Article 20 of Fourth Geneva Convention, Article 15 of API. For non-international conflict, see Article 9(1) of APII. 158 . Article 61 of the 2010 Layeha. 159 . “Presently the ICRC is providing valuable services by delivering letters to the prisoners and informing the families about their health condition, which is really a humanitarian service. The Islamic Emirate of Afghanistan supports as per its policy each and every NGO, which is useful for the ordinary Afghan and does not support the foreign invasion. Similarly the IEA tries its best to facilitate them according to possibilities and con- demns the torture and killing of its worker inside the country as well as abroad; because it is an impartial organization and works throughout the world for the needy, helpless and oppressed people.” In Islamic Emirate of Afghanistan, The Valuable Services of the Red Cross in Reducing the Sufferings of Afghans .” The statement was probably issued in response to the killing of a British Red Cross worker in Peshawar by an unknown in April 2012. 160 . Shahamat website, “Declaration of the Islamic Emirate of Afghanistan Regarding the Polio Vaccination.” NOTES 241
161 . UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2013,” p.23. 162 . Rule 97 of ICRC Customary Law Study. Human shield is not mentioned in APII, but it has often been equated with the taking of hostages as prohibited by Article 4(2)(c) of APII. See also Article 28 of Fourth Geneva Convention, Article 51(7) of API, and Article 5(2)(c) of APII. 163 . See, for example, the case in Marja cited in UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict,” p.49. 164 . “Reports add that earlier this morning, the cowardly American invaders forced dozens of innocent women and children to walk in the streets near Saleeb Surkh hill of Mirmando area, triggering an IED placed nearby from which several civilians were martyred and wounded however their exact num- bers are not known.” See Taliban statement of March 25, 2012: “Cowardly invaders using civilians as human shield in Gerishk battle, several martyred.” Cited in UNAMA, “Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2012,” p.27. 165 . Article 81 of the 2010 Layeha, Article 63 of the 2009 Layeha. 166 . For example, Omar, “Message of Felicitation of the Esteemed Amir-Ul- Momineen on the Occasion of Eid-Ul-Odha.” 167 . Rashid, inte rview.
7 Application and Perception of the Layeha by the Taliban 1 . See questions of the questionnaire in Annex IV of this book. 2 . The Mujahideen refused to attack bridges or trade routes if they were seen as important to civilian traders or farmers. See Coll, Ghost Wars: The Secret History of the CIA, Afghanistan, and bin Laden, from the Soviet Invasion to September 10, 2001 , pp.134– 135. 3 . See Annex V of this book. 4 . Qari Yousuf Ahmadi (spokesperson), interview collected by the author and assistant in Kabul, November 2012. 5 . M. from Helmand, interview, Kandahar, November 4, 2012. 6 . Ibid. 7 . Ibid. 8 . I. from Uruzgan, interview, Kabul, May 2013. 9 . H. from Helmand, interview, Helmand, April 2013. 10 . I. from Uruzgan, interview (place and date omitted if opere citato). 11. F. from Nooristan, interview, Kabul, August 2013. 12 . M. from Helmand, interview. 13 . Ibid. 14 . H. from Helmand, interview. 15 . Qari Youssuf Ahmadi, interview, Kabul, November 6, 2012; Zabiullah Mujahid, interview, Kandahar, December 2012. 16 . Q. from Kandahar, interview, Kandahar, December 2012. 17 . Q. from Kunduz, interview, Kunduz, December 2012. 18 . F. from Nooristan, interview. 19 . C. from Kunar, interview, Kabul, November 5, 2012; M. from Helmand, interview; F. from Nooristan, interview. 20 . H. from Helmand, interview. 21 . Mujahid,inte rview. 242 NOTES
22 . M. from Helmand, interview. 23 . Q. from Kandahar, interview; Q. from Kunduz, interview. 24 . I. from Uruzgan, interview. 25 . Ibid. 26 . W. from Uruzgan, interview, Kandahar, December 2012. 27 . M. from Helmand, interview; H. from Helmand, interview. 28 . C. from Kunar, interview. 29 . Ibid. 30 . H. from Helmand, interview. 31 . “If the policeman or soldier has a weapon with him, or if he had accomplished any great deeds, the Mujahids should express endearment towards him.” In Article 14 of the 2010 Layeha. 32 . C. from Kunar, interview; W. from Helmand, interview, Kabul, November 6, 2012; H. from Helmand, interview; F. from Nooristan, interview; Mujahid, interview; Q. from Kandahar, interview; Q. from Kunduz, interview; A. from Zabul, interview, Kabul, July 2013; I. from Uruzgan, interview. 33 . Q. from Kandahar, interview. 34 . C. from Kunar, interview. 35 . Q. from Kunduz, interview. 36 . C. from Kunar, interview; H. from Helmand, interview; Mujahid, interview; Q. from Kunduz, interview; I. from Uruzgan, interview. 37 . W. from Helmand, interview. 38 . I. from Uruzgan, interview. 39 . C. from Kunar, interview. 40 . W. from Uruzgan, interview; Mujahid, interview. 41 . Ahmadi, i nterview. 42 . Mujahid, interview. 43 . The Layeha itself is based on both rationales. The Message of the 2010 Layeha reads, “In the light of such a Layeha and in the light of its appointed shari’a rules, the Mujahedin will be able to identify their targets far better , and identify the qualities of the enemies of Islam and their helpers and supporters, and deal with the suspicions and doubts that they come across in their jihadi environ- ment, and be able to find an easy solution for these doubts .” On the other hand, Article 78 of the 2010 Layeha states that “the Mujahedin are obliged to adopt Islamic behaviour and good conduct with the people and try to win over the hearts of the common Muslims and, as Mujahedin, be such representatives of the Islamic Emirate that all compatriots shall welcome and give the hand of cooperation and help.” Again, the spokespersons did not develop the chain of causality between discipline and (military) victory. 44 . Q. from Kandahar, interview. 45 . For definition of professional military, see, for example, Samuel Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations , Cambridge: Harvard University Press, 1957, chapters 3 and 4 . 46 . Q. from Kandahar, interview; Q. from Kunduz, interview. 47 . Mujahid, interview; M. from Helmand, interview; H. from Helmand, inter- view. 48 . Ahmadi, i nterview. 49 . C. from Kunar, interview. 50 . H. from Helmand, interview. 51 . M. from Helmand, interview. NOTES 243
52 . Ibid. 53 . Q. from Kunduz, interview. 54 . H. from Helmand, interview. 55 . F. from Nooristan, interview. 56 . In Islamic terminology, tawba means “repentance.” See chapter 6 of this book; C. from Kunar, interview. 57 . Ibid. 58 . I. from Uruzgan, interview. 59 . Q. from Kandahar, interview. 60 . M. from Helmand, interview; Q. from Kunduz, interview. 61 . “For example, once in Zabul a group of Mujahideen was walking toward a certain destination. When one young man came across an enemy convoy, he suddenly ran toward the convoy and started to shoot at it. This attack was not planned, and he put the lives of all of his other colleagues in danger: soon the enemy helicopters arrived and attacked the group killing seven fighters. The man who attacked the convoy was also killed.” See F. from Nooristan, inter- view. 62 . W. from Helmand, interview; Q. from Kandahar, interview; W. from Uruzgan, interview. 63 . M. from Helmand, interview. 64 . Mujahid,inte rview. 65 . “When Karzai started to rule, we began to face problems because I and my family wore the same clothes as the Taliban, like the turban and other cloth- ing. The government people blamed us for being Taliban or being affiliated with the Taliban. That’s why I was forced to become a Taliban fighter.” H. from Helmand, interview. 66 . Ibid. 67 . I. from Uruzgan, interview. 68 . M. from Helmand, interview; W. from Helmand, interview; I. from Uruzgan, interview. 69 . “Often local governors come here and ask tribal leaders what kind of develop- ment or rebuilding projects are needed but in the end, they have done noth- ing for us.” In H. from Helmand, interview. 70 . “Yes, there are more roads and clinics but Islam is neglected.” W. from Helmand, interview; C. from Kunar, interview. 71 . W. from Uruzgan, interview. 72 . M. from Helmand, interview. 73 . C. from Kunar, interview. 74 . See interview of M. from Helmand: “A few weeks ago I was in Kabul to wel- come the release of our friend from Bagram. While guarding my friend dur- ing the night and I peeked out of the window and gazed at the city. I started to cry: look at this city under the occupation of the foreigners. If Sharia law were truly implemented everyone would live as a Muslim and would enjoy the rights Islam has accorded to them. Everyone would follow the Qur’an and hadith . When they die, the Almighty will not ask them about their knowledge of technology but he will ask how much they have followed Islam.” 75 . I. from Uruzgan, interview. 76 . Names and interviews cited with explicit permission of the interviewees. 77 . Younus Khalis is one of the founders of Hezb-e Islami, an exiled political party resisting the communist regime in Afghanistan. After the Soviet inva- 244 NOTES
sion, he split from Hekmatyar and created Hezb-e Islami Khalis. After the Soviet withdrawal, many of his members joined the Taliban movement in 1994–1996. 78 . “Any government or organization needs a code of conduct for its operations. Similarly, when the Taliban organized themselves and grew bigger, a little more structure became necessary. Any guerrilla groups commit violations. When they observed that certain serious acts went unpunished, they had to produce a code of conduct. In my opinion, the Layeha is not just propaganda, and the Taliban leadership honestly want to implement the Layeha. Whether they can implement it is a different story.” See Sharafat, interview. “In any developing country, the law cannot be fully implemented. Fighting means breaking the law. [. . .] Don’t expect to have it respected. [. . .] I don’t think that even the leadership expects it to be fully implemented. Hitler and Napoleon hid the crimes of their soldiers. Also, US soldiers kill innocent civil- ians and bomb villages but no court prosecutes and brings the soldiers to justice. In every battle you must ignore the faults of your own fighters.” See Muhammad Hassan Haqyar, interview, Kabul, November 1, 2012. 79 . See interview of Mujahid: “Unfortunately, there is a great number of people who fight under the ‘shelter’ and ‘title’ of Taliban but in fact, they are not real Taliban. They join the Taliban but follow their own objectives and aims. The (so-called) Taliban with other objectives are those, – who seek revenge in their feud against their neighbours. They cannot take revenge without the help of powerful groups; – who seek revenge against foreign forces for their families and friends killed by bombing and hassled by night raids; – who resist the oppressing local authorities; – who are unemployed and join the Taliban for economic benefit; and – who kidnap wealthy people and foreigners for ransom. These are the people who break the rules. A real Taliban would not break the rules which they have given to themselves.” 80 . Muzhdah, interview. 81 . Muzhdah (ibid.) recognized the added value of the Layeha: “Some sort of law is better than nothing at all.” 82 . Mujahid, interview. 83 . Muzhdah, interview. 84 . Referring to the bus ambush on October 19, 2008. See Associated Press, “Official: 31 Killed in Taliban Bus Attack in Afghanistan,” October 19, 2008; Taimoor Shah, “Taliban Kill Dozens in Bus Ambush, Officials Say,” The New York Times , October 19, 2008. 85 . Compensation decided by the Shura. 86 . Sharafat, i nterview. 87 . Haqyar, inte rview. 88 . Mujahid, interview. 89 . One of the interviewees insinuated his personal involvement in the drafting of the drafting: “I was also involved in the editing of Zaeef’s biography.” (Zaeef was the former Taliban ambassador to Pakistan during the Taliban regime and published the book My Life with the Taliban .) 90 . Clark, “The Layha,” p.7. 91 . Article 1 of the 2010 Layeha. NOTES 245
92 . Article 3 of the 2010 Layeha. 93 . Articles 17 and 18 of the 2010 Layeha. 94 . Article 78 and message on back cover of the 2010 Layeha. 95 . Further empirical study may be needed to verify its consistent application across Afghanistan. Questions also arise as to who determines the severity of the violation and which provisions are deemed to be more important than others. It also remains open to speculation as to who applies which interpre- tation of the Sharia law. 96 . Haiats would travel from one place to another to collect complaints from the local population. There is also an arbitration military commission at the national level, as well as a commission for disciplinary sanctions at the provincial level, according to Michael Semple, interview, Harvard Kennedy School of Government, Boston, March 29, 2012. – Hotline numbers were instituted to report complaints about bad treatment of the Taliban. In Rod Nordland and Alissa J. Rubin, “Taliban Captives Dispute U.S. View on Afghanistan War,” The New York Times (February 1, 2011). – In Zabul province, pairs of auditors were seen questioning the local population in Taliban-controlled areas about the behavior of local com- manders based on the Layeha. Reports name Mullah Muhammad Yunos or Mullah Nazir, both from Zabul, as head of the auditing commission. In Ruttig, “The Other Side—Dimensions of the Afghan Insurgency: Causes, Actors and Approaches to “Talks,’” p.18. See also Coghlan, “The Taliban in Helmand,” p.150; Anand Gopal, “The Taliban in Kandahar,” Talibanistan: Negotiating the Borders between Terror, Politics, and Religion , ed. Peter Bergen, Oxford: Oxford University Press, 2013, pp.35–36. 97 . “Contrary to popular perception, the Taliban in Kandahar do not appear to receive regular salaries.” In Gopal, “The Taliban in Kandahar,” p.3; also Gopal, “The Battle for Afghanistan: Militancy and Conflict in Kandahar.” Media persons, however, seem to receive a regular monthly salary; see 2009 Directive in Annex II. 98 . Dr. Abdul Rauf, interview, October 15, 2012. 99 . See note 84 of this chapter. 100 . “Just recently, there was an Afghan Local Police (ALP) commander who surrendered to the Taliban and according to the Layeha we told him: ‘If you have committed crimes against the Afghan civilians and the Afghans want to prosecute you in the future, we cannot guarantee for your safety because it is the right of the Afghans to prosecute you. However, we forgive you for having fought against us.’” In M. from Helmand, inter- view. 101 . The observation of the relative authority of Mullah Omar also coincides with the conclusion of a survey conducted by a Canadian journalist in Kandahar: “More than half those [Taliban] surveyed, were willing [to] say that their Commander of the Faithful was not necessarily required for their war, nor necessarily the best leader for Afghanistan. This was especially curious when their other responses suggested [that] they were strongly committed to the insurgency.” In Graeme Smith, “What Kandahar’s Taliban Say,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2009, p.203. 102 . I. f rom U ruzgan, i nterview. 246 NOTES
8 Conclusion: Layeha, a One-Way Mirror? 1 . Foreword message in the 2010 Layeha. See Annex III. 2 . Article 40 of the 2010 Layeha, italics added. Translation of Kate, “The Layha” in Appe ndix. 3 . Defined as “God’s way of bringing believers to faith and the means by which prophets call individuals and communities back to God.” In Esposito, “The Oxford Dictionary of Islam.” See also Clark, “The Layha,” Appendix 1, p.3. 4 . Article 14 of the 2010 Layeha. 5 . George Curzon, Tales of Travel , New York: George H. Doran Co., 1923; S. M. Khan, The Life of Abdur Rahman: Amir of Afghanistan (second volume, originally published by John Murray, London, 1900), 1980; Olesen, Islam and Politics in Afghanistan ; Ewans, Afghanistan: A New History . 6 . Asta Olesen, Islam and Politics in Afghanistan , vol. 67, Nordic Institute of Asian Studies, Monograph series, Richmond: Curzon Press, 1995; Tahir Amin, “Afghan Resistance: Past, Present, and Future,” Asian Survey, xxiv (4), (April 1984); J. W. Anderson, “How Afghans Define Themselves in Relation to Islam,” Revolutions and Rebellions in Afghanistan, ed. M. N. Shahrani and Robert Canfield, Berkeley: University of California, 1984; Saikal and Maley, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy ; Kakar, Afghanistan—The Soviet Invasion and the Afghan Response, 1979–1982 . 7 . For a comparative study between Islamic law and humanitarian law, see, for example, Yamani, “Humanitarian International Law in Islam: A General Outlook”; Bennoune, “Humanitarian Law in Islamic Jurisprudence”; Cockayne, “Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations,” International Review of the Red Cross , 84 (847), (2002); Yadh Ben Ashoor, “Islam and International Humanitarian Law,” International Review of the Red Cross, 20 (215), (April 1980); Sheikh Wahbeh al-Zuhili, “Islam and International Law,” International Review of the Red Cross, 87 (858), (June 2005); Hashmi, “Saving and Taking Life in War: Three Modern Muslim Views,” p.158. For treatment of prisoner, see Ray Murphy and Mohamed M. El Zeidy, “Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War,” International Criminal Law Review , 9 (2009). For a comparison between Islamic law and Pashtunwali , see Ahmed, Pukhtun Economy and Society ; Olesen, Islam and Politics in Afghanistan . 8 . Ibid. 9. The theory of Weinstein (2009) applies to ANSAs but is used here for sover- eign states by analogy. 10 . The annual subsidies and the periodic donations of funds and military supplies constituted an important and reliable source of Afghan revenue. During the 60-year period, annual subsidies rose from 600,000 Indian rupees in the 1850s to two million rupees in 1910, covering approximately 10–20 percent of the state budget. This dispensed the ruler from the necessity of levying unpopu- lar taxes from the unruly parts of Afghanistan. Thus, the state’s survival was ensured based on a curious pattern of dependency: “The west provided the government with warriors and the east with money.” See Yuri V. Bossin, “The Afghan Experience with International Assistance,” Beyond Reconstruction in Afghanistan , ed. John D. Montgomery and Dennis A. Rondinelli, New York: Palgrave Macmillan, 2004, p.76; Mountstuart Elphinstone, An Account of the NOTES 247
Kingdom of Caubul, London: Longman, 1815; Yu Gankovsky, “The Durrani Empire,” Afghanistan: Past and Present , Moscow: Oriental Studies in the USSR, 1981, p.86; Olesen, Islam and Politics in Afghanistan , p .32. 11 . Ahmed Ra shid, inte rview. 12 . The Islamic Emirate of Afghanistan, Reaction of Islamic Emirate Regarding Accusations of UNAMA about Explosive Devices; Zabihullah Mujahed, “The Latest Report of UNAMA Is Written in the Spirit of Giving Acquittal to the Foreigners, Not for Exposing the Realities,” February 25, 2013; Shahamat website, “An Open Letter to the UNAMA about the Biased Behavior of this Organization.” 13 . Shahamat website, “Statement of the Islamic Emirate Regarding the Repeatedly Baseless Accusations of UNAMA,” July 23, 2011. 14 . The Guardian , “Taliban and Nato-Led Forces Engage in War of Words on Twitter.” 15 . Shahamat website, “Statement of Islamic Emirate Regarding the Recurrent Partial Report by UN,” December 17, 2012. 16 . Finnemore and Sikkink focus on the process of “norm cycle” starting from “norm emergence” and moving to “norm cascade” (among states) and to “internalization of norm.” Risse further elaborates on the process of norm internalization through a process of strategic bargaining, argumentation, and persuasion. See Martha Finnemore and K. Sikkink, “International Norm Dynamics and Political Change,” International Organization, 52 (1998); Thomas Risse et al., The Power of Human Rights—International Norms and Domestic Change , Cambridge: Cambridge University Press, 1999; Martha Finnemore, “Are Legal Norms Distinctive?,” The New York University Journal of International Law and Politics, 32 (699), (2000). See also Thomas M. Franck, The Power of Legitimacy among Nations , New York: Oxford University Press, 1990; Anne-Marie Slaughter, “International Law in a World of Liberal States,” The European Journal of International Law, 6 (1995). For an inter- esting case study, see Filippo Dionigi, “UN Security Council Resolutions as Factors of International Socialization: The Case of Hezbollah,” International Peacekeeping, 21 (3), (2014), pp.287–306. 17 . “It is its responsibility to investigate all incidents of civilian causalities all over the country fully and impartially, whether they are small or big incidents which have occurred as a result of blind bombardments of foreign invading forces, pointblank firings during joint night raids by the Kabul Administration’s and foreign troops, intentional bomb detonations in places of people’s con- gestions by intelligence networks or incidents of detonations and landmines caused by mistakes of Mujahideen of the Islamic Emirate resulting in material and soul losses to our defenseless people [italics added].” Shahamat website, “Department of Prevention of Civilian Casualties Commission of Military Affairs,” September 10, 2014. 18 . Observers disagree as to whether the Haqqani group or network is a separate organization or whether it is an integral part of the Taliban movement. Western analysts tend to be of the former view, whereas those close to the Taliban support the latter. See for discussion Michael Semple, “How the Haqqani Network Is Expanding from Waziristan,” Foreign Affairs (September 23, 2011); Peters, “Haqqani Network Financing: The Evolution of an Industry”; Thomas Ruttig, “The Haqqani Network Blacklisted: From US Asset to Special Foe,” Afghanistan Analysts Network, Kabul, 2012. 248 NOTES
19 . Rod Nordland and Alissa J. Rubin, “Taliban Flag Is Gone in Qatar, but Talks Remain in Doubt,” The New York Times , June 23, 2013. 20 . Al Emarah , “Statement by the Political Commission of the Islamic Emirate Regarding Certain Developments in Afghanistan and the World,” March 5, 2008, in Nathan, “Reading the Taliban,” p.34. 21 . “The Taliban have long demanded removal from the sanctions list to help pro- mote reconciliation.” In The Telegraph , “UN Separates al-Qaeda and Taliban Sanctions,” June 18, 2011. The sanctions list of the UN Security Council Resolution 1267 only includes individuals, entities, groups, and other undertakings belonging to or associ- ated with the Taliban or Al Qaeda but not the Taliban as an organization. Fourteen former Taliban members were delisted in July 2011. In Rahimullah Yusufzai, “Instead of Real Taliban, UNSC Removes 14 Former Taliban from Blacklist,” The News International , July 18, 2011. Another historical explanation is that the Kandaharis (and particularly the Hotak tribe to which Mullah Omar belongs) pride themselves as being the descendents of Ashraf Hotaki, who conquered Persia and defeated the Ottoman forces in the eighteenth century. The Noorzai and Eshakzai tribes were also historically involved in nation building. They are thus imbued with a mission to revive the glorious past, whereas tribes of the Pakistani Taliban do not share the same legacy. A view shared by Michael Semple, interview. 22 . C. from Kunar, interview; A. from Zabul, interview. 23 . Qur’an [13:11] in Yusuf, The Holy Qur’an . 24 . Olivier Roy, Islam and Resistance in Afghanistan, Second edition, Cambridge: Cambridge University Press, 1990, p.31. For a useful summary, see Kristin Mendoza, “Islam and Islamism in Afghanistan,” Afghan Legal History Project (2003),p.2. 25 . Euben and Zaman, Princeton Readings in Islamist Thought: Texts and Contexts from al-Banna to Bin Laden , p.475. 26 . Qur’an [4:58], [4:59] in Yusuf, The Holy Qur’an . 27 . For example, fei and beit ul-mal are both Arabic terms used in Islamic law to describe public property in Article 23 of the 2009 Layeha. See Clark, “The Layha,” Appendix 1, Article 23. 28 . “Taliban use some western style media programs as anti-Islamic and call them infidels which, as a result, also increases their support among the people and the number of Taliban fighters.” In Sami Yousafzai, “Media of Afghanistan,” Gendai Afugan ni okeru Media Bunkashinkou ni kansuru Shimpoziumu (Symposium on the Develpment of Media Culture in Today’s Afghanistan), Tokyo, December 10, 2012. 29 . Peters, “The Taliban and the Opium Trade,” p.7. 30. Such as the magazine Shahamat ; see Abdulhadi Hairan, “A Profile of the Taliban’s Propaganda Tactics,” The Huffingtonpost , February 1, 2010; Nathan, “Reading the Taliban,” p.30. 31 . Johnson and Waheed, “Analyzing Taliban Taranas (Cants): An Effective Afghan Propaganda Artifact.” 32 . Alex Strick van Linschoten and Felix Kuehn, Poetry of the Taliban , New York: Columbia University Press, 2012. 33 . Johnson, “The Taliban Insurgency and an Analysis of Shabnamah (Night Letters).” NOTES 249
34 . Foxley, “The Taliban’s Propaganda Activities: How Well Is the Afghan Insurgency Communicating and What Is It Saying?,” p.10. 35 . Ruttig, How “Neo” Were the “Neo-Taleban” ; Giustozzi, “The Resurgence of the Neo-Taliban”; ICG, “Taliban Propaganda: Winning the War of Words?” 36 . Yousafzai, “Media of Afghanistan.” 37 . “From January 2004 [. . .], the insurgents have not only successfully kept their voice raised and messages heard, but they were also able to establish advanced measures to widen their propaganda for more effective results on the international as well as local level.” In Hairan, “A Profile of the Taliban’s Propaganda Tactics.” A former US intelligence analyst also says, “The Taliban’s media machine runs circles around our public information opera- tions in Afghanistan. Using newspapers, radio broadcasts, the Internet and word of mouth, it puts out messages far faster than we can, exaggerating the effectiveness of its attacks, creating the illusion of a unified insurgency and criticizing the (real and imagined) failings of the Kabul government.” See Mitchell LaFortune, “Learning from Wikileaks,” International New York Times , July 31, 2010. 38 . Foxley, “The Taliban’s Propaganda Activities: How Well Is the Afghan Insurgency Communicating and What Is It Saying?,” p.11. 39 . Nordland and Sukhanyar, “Taliban Kill Afghan Election Official, Then Brag on T witter.” 40 . See Article 14 of the 2009 Directive: “Press and media personnel should make efficient use of their time and acquire computer and English skills in order to fulfill their mandate.” 41 . “The Taliban have unrestricted, unchallenged access to the radio which is the main means of communication in an area where literacy is around 10 percent for men and less than five percent for women” Richard Holbrooke cited in Eckert, Paul, “Information war key to US Pakistan strategy,” Reuters , May 13, 2009. Also Jan Forrester, “Afghanistan’s Media Explosion,” Eureka Street , March 16, 2009. 42 . The Taliban have set up the Voice of Sharia Radio, which airs propaganda programs at least two hours a day and are listened to by both sides of the Pak–Afghan border from Waziristan to Khost and as far as Ghazni and Logar. See Hairan, “A Profile of the Taliban’s Propaganda Tactics”; and Nathan, “Reading the Taliban,” p.31. 43 . According to journalist Sami Yousafzai, there are 175 FM stations and four news agencies as of end of 2012. See Yousafzai, “Media of Afghanistan.” 44 . “Journalists also receive threats from the anti-government elements for pub- lishing news that is not helping their goals and are against their interests,” in Yousafzai, “Media of Afghanistan”; Forrester, “Afghanistan’s Media Explosion”; Nathan, “Reading the Taliban,” p.27. Similar accounts were col- lected during the author’s various interviews with news agencies, radio, and newspaper stations in November 2012. However, journalists are also intimi- dated by parliamentarians, criminal groups, militia groups, or drug traffickers. 45 . Ernesto Londo ñ o, “Taliban Publicly Expresses Interest in Talks with U.S.,” The Washington Post , January 3, 2012; BBC, “US and Taliban to Open Direct Peace Talks in Qatar,” June 18, 2013; Richard Barrett, “Talking to the Taliban,” Foreign Policy (August 20, 2012). 46 . Ibid. See also a similar claim by NHK: “When we interviewed some militants— I believe they were not at the senior level but lower level—they still do not 250 NOTES
believe that some people are having negotiation or dialogue with the United States and I thought it’s very difficult for them to believe that there is a peace- ful negotiation between the Islamic Emirate of Afghanistan and the United States.” In NHK, Exclusive Interview with Top Taliban Leaders, November 9, 2012. See interview reproduced in Annex I of this book. 47 . Newsweek , “How Afghan Peace Talks Are Splintering the Taliban” (February 13, 2013) . 48 . Ibid. 49 . As a variation of Finnemore and Sikkink’s concept of “norm entrepreneur.” In Finnemore and Sikkink, “International Norm Dynamics and Political Change.” 50 . See, for example, Article 14 of the Palestinian National Charter amended in 1968: “The destiny of the Arab nation, and indeed Arab existence itself, depends upon the destiny of the Palestine cause. From this interdepen- dence springs the Arab nation’s pursuit of, and striving for, the liberation of Palestine. The people of Palestine play the role of the vanguard in the realization of this sacred ( qawmi ) goal.” PLO, “Palestinian National Charter (1968),” The Avalon Project , Yale Law School. Article 10 of the Charter advocates the use of armed violence: “Commando action constitutes the nucleus of the Palestinian popular liberation war. This requires its escala- tion, comprehensiveness, and the mobilization of all the Palestinian popular and educational efforts and their organization and involvement in the armed Palestinian revolution.” 51 . Moreover, Article 18 of the above Charter states: “The liberation of Palestine, from an international point of view, is a defensive action necessitated by the demands of self-defense. Accordingly the Palestinian people, desirous as they are of the friendship of all people, look to freedom-loving, and peace-loving states for support in order to restore their legitimate rights in Palestine, to re- establish peace and security in the country, and to enable its people to exercise national sovereignty and freedom.” 52 . Jackson uses the term “negative sovereignty.” In R. Jackson, Quasi-States: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1990. 53 . Schneckener and Hofmann, “Engaging Non-State Armed Actors in State and Peace-building: Options and Strategies”; Ulrich Schneckener, “Spoilers or Governance Actors? Engaging Armed NSAGs in Areas of Limited Statehood,” SFB-Governance Working Paper Series , October 21, 2009. 54 . This group included Mullah Omar’s chiefs-of-office during the Taliban regime, that is, Tayyeb Agha, Omar’s close aide; Mullah Baradar, the move- ment’s second-in-command after the collapse of the Taliban regime; Mullah Obaidullah, the Taliban regime’s defence minister; and Mullah Abdul Razzaq, the interior minister. In Gopal, “The Battle for Afghanistan: Militancy and Conflict in Kandahar.” 55 . In the aftermath of the ousting of the Taliban from the government in 2001, some returned to normal civilian life while others attempted a political come- back by forming a political party. However, they were given little political role in the new government dominated by members of the Northern Alliance. At the end of 2001, a group of ex-Taliban founded a political party in Pakistan called Jamiat-e Khuddam ul-Furqan , presenting themselves as a moderate Taliban group. They were eventually allowed to settle in Kabul in 2004 but NOTES 251
were left without a significant political role until their inclusion in the High Peace Council. In Ruttig, “Taliban Reconciliation,” p.420. 56 . Anti- (or counter-) terrorism operations are defined as “Operations that include the offensive measures taken to prevent, deter, pre-empt, and respond to terrorism.” In US Army Marine Corps, Counterinsurgency Field Manual U.S. Army Field Manual No. 3–24 , Marine Corps Warfighting Publication No. 3–33.5 , Chicago and London: University of Chicago Press, 2007, p.383. 57 . “Mid-level Taliban wiped out by NATO raids are being replaced by younger Talibs who have been more thoroughly indoctrinated in religious schools in Pakistan and more radicalised by a decade of war and drone attacks,” in John Braithwaite and Ali Wardak, “Is Killing Taliban a Good Idea?,” Inside Story , December 7, 2011; Ruttig, “Taliban Reconciliation,” p.443; Gü lden S. Ayman, “Reconciliation with the Taliban: Challenges and Prospects,” Security Strategies, 9 (17), (April 2013), p.12; Boone speculates that it may be an intended policy of the United States to estrange the Taliban from the wider population. Jon Boone, “Does the US Military Want Afghanistan to Get Even Nastier?,” The Guardian , December 8, 2011. 58 . “We [see a] shift from the old generation Taliban (of the anti-Soviet resis- tance) to the current stage where the majority of commanders are people in the mid-thirties. Because the international military forces focus on target- ing the leaders, many changes occur in the field, such as the emergence of many new leaders. [ . . . ] The younger commanders do not care about the impact [of their operations] on the communities and are far more reluctant to respect the Layeha.” In interview with M., Kabul, November 12, 2012. Also Jackson and Giustozzi, “Talking to the Other Side: Humanitarian Engagement with the Taliban in Afghanistan,” p.6. According to a military source, the average age of mid-level Taliban commanders in 2011 was 24, whereas a decade ago it was 35. See Braithwaite and Wardak, “Is Killing Taliban a Good Idea?” 59 . Counterinsurgency operations are defined as a “full range of measures that governments take to defeat insurgencies,” which “can be political, admin- istrative, military, economic, psychological, or informational,” often used in combination thereof. Kilcullen, Counterinsurgency , pp.154–155; also Michael Boyle, Contemporary Security and Strategy , ed. C. Snyder, New York: Palgrave Macmillan, 2008, p.186. Classic literature includes: David Galula, Counterinsurgency Warfare, Theory and Practice , Westport and London: Praeger Security International, 1964; A. John Nagl, Counterinsurgency: Lesson from Malaya and Vietnam , Westport and London: Preager Publishing, 2002; U.S. Army Marine Corps, Counterinsurgency Field Manual U.S. Army Field Manual No. 3–24 ; Kilcullen, Counterinsurgency . 60 . See the reasoning of Boyle: “Terrorist threats are now regularly described as insurgencies and vice versa,” in J. Michael Boyle, “Do Counterterrorism and Counterinsurgency Go Together?,” International Affairs , 86 (2), (2010), p.335. 61 . Sohail Inayatullah, “Defeating the Taliban: Creating an Alternative Future through Reframing and Humor,” Journal of Futures Studies, 14 (1), (August 2009),pp. 98–99. 62 . The group is known to be commanded by commander Najibullah. In Sami Yousafzai and Ron Moreau, “Too Radical for the Taliban,” Newsweek (August 30, 2013) . 252 NOTES
63 . “Continued suicide bombings in the face of a NATO ceasefire would under- cut the Taliban’s claim of being on the side of the people.” In Braithwaite and Wardak, “Is Killing Taliban a Good Idea?”; also Ayman, “Reconciliation with the Taliban: Challenges and Prospects,” p.16. 64 . Crews, Moderate Taliban? , p.239. Karzai’s amnesty granted to Taliban fight- ers in April 2003, who agreed to give up their arms, falls into the same line of logic. 65 . The first concrete attempt to entice foot-soldiers to switch sides with finan- cial incentives was undertaken by the so-called PTS (in Dari, “Program for Strengthening Peace”). It ended, however, in failure as only a few participants were previously known insurgents. The program was soon superseded by the High Peace Council, which was founded as an integral part of the APRP adopted at the 2010 London Conference. On PTS, see Mohammad Masoom Stanekzai, “Thwarting Afghanistan’s Insurgency,” Special Report , Washington, DC: USIP, 2008, p.11; Quie, “Peace-Building and Democracy Promotion in Afghanistan: The APRP and Reconciliation with the Taliban,” p.32; Ayman, “Reconciliation with the Taliban: Challenges and Prospects,” p.6. For critical review of High Peace Council, see Ruttig, “Taliban Reconciliation,” pp.453–456. 66 . Kim Sengupta and Cavendish Julius, “Taliban’s High Command in Secret Talks to End War in Afghanistan,” The Independent , October 7, 2010; Adam Entous and Julian E Barnes, “U.S. Backs Taliban Talks,” The Wall Street Journal , October 14, 2010. 67 . AFP, “Nato Backs Talks with Moderate Taliban,” Daily Star , August 2, 2009; Victoria Burnett, “US Extends an Olive Branch to Taliban’s ‘Moderates,’” The Boston Globe , January 2, 2005; The Washington Times , “Editorial: A Kinder, Gentler Taliban”; Gareth Porter, Obama’s “Moderate Taliban” Plan a Recipe for Disaster: Experts, April 16, 2009; The Washington Times , “Editorial: Talking with the ‘Moderate’ Taliban,” March 18, 2009; Syed Saleem Shahzad, “Seven Steps to Peace in Afghanistan,” Asia Times Online (2009). Ruttig differenti- ates between the pragmatic, politically thinking, pro-talks Taliban and those who favor a purely military approach. In Ruttig, “The Battle for Afghanistan,” p.22. 68 . The Washington Times , “Editorial: Talking with the ‘Moderate’ Taliban.” The article compares Afghanistan to Iraq. 69 . The Guardian , “The Taliban: Opening Offices and Options,” January 3, 2012. 70 . See interview with Sohail Shaheen, member of Taliban Negotiation Team in Qatar, in which he explains the reasons for the suspension of talks. In NHK, Exclusive Interview with Top Taliban Leaders ; see Annex I of this book. See also Julien Borger, “US-Taliban Talks Collapsed over Guant á namo Deal, Says Official,” The Guardian , October 8, 2012. 71 . For example, “The definition of a Talib, according to leading members of Afghan civil society [ . . . ] is an unemployed youth.” In Ashraf Ghani, “Ten- Year Framework for Afghanistan Executing the Obama Plan . . . and Beyond,” Washington, DC, April 2009. 72 . See, for example, interview conducted by Semple with a certain “lead nego- tiator for the Taliban” who insinuated that the United States’ long-term presence in Afghanistan would be acceptable if focus shifted from military presence to economic assistance. See Semple et al., “Taliban Perspectives on Reconciliation,” p.13. 73 . Seep revious c hapter. NOTES 253
74 . See similar conclusion: “The Taliban who criticise aid organisations are not just accusing them of being ‘spies’ or siding with the government, but are also critical of their perceived lack of a principled approach and effective- ness.” In Jackson and Giustozzi, “Talking to the Other Side: Humanitarian Engagement with the Taliban in Afghanistan.” 75 . In Matan Chorev and Jake Sherman, “The Prospects for Security and Political Reconciliation in Afghanistan: Local, National, and Regional Perspectives,” Workshop Report , Tufts University and Harvard Kennedy School, Massachusetts, May 2010, p.8. 76 . Semple et al., “Taliban Perspectives on Reconciliation,” p.9. 77 . Schneckener and Hofmann, “Engaging Non-State Armed Actors in State and Peace-building: Options and Strategies,” p.10. 78 . Seep revious c hapter. 79 . Ahmed R ashid, i nterview. 80 . The Asia Foundation, for example, regularly invites small groups of Islamic scholars to other Muslim countries (or with a large Muslim population) such as Egypt, India, Malaysia, Turkey, and the United Arab Emirates, under the Traditional Leaders Discovery Program. See “Overview (of Activities),” Asia Foundation, 2012. 81 . The Asia Foundation, for example, organized a three-day workshop in Kabul on women’s rights and responsibilities in Islam where prominent Egyptian and Afghan scholars presented the case on women’s social and educational rights in Islam, Islamic conditions of marriage, women’s wealth and property rights in Islam, and violence against women in Islam. Ibid. 82 . In 2006, for example, the ICRC organized a conference with Islamic scholars on Islam and international humanitarian law held at the headquarters of the Afghan Red Crescent Society. In ICRC, “Afghanistan: Conference on Islam and Humanitarian Law,” News Release 06/55 , Geneva, September 21, 2006. 83 . The Baacha Khan Trust Educational Foundation is an auxiliary of the Baacha Khan Trust, an NGO in Pakistan and Afghanistan built on the non-violent ideology of political activist Khan Abdul Ghaffar Khan (1890–1988). 84 . Senior staff at BKTEF, interview, Peshawar, October 18, 2012. 85 . Foschini, “The Battle for Schools in Ghazni—or, Schools as a Battlefield”; Giustozzi and Franco, “The Battle for Schools: The Taleban and State Education.” 86 . Dan Green, “Harnessing the Islamist Revolution,” Strategic Studies Quarterly (Fall 2008), p.136; John R. Dyke and John R. Crisafulli, “Unconventional Counter-Insurgency in Afghanistan,” Naval Postgraduate School, Monterey, California, June 2006, p.30. 87 . Pandya and Laipson, “Islam and Politics,” p.35. See for similar conclusion: “The international community, in showing its support to Afghanistan’s gov- ernment and the country’s developmental process, must recognize the impor- tance of Islam for the Afghan population and encourage its inclusion in the political process and in the formal educational system,” p.33.
Annex I: Interview with Top Taliban Leaders (NHK) 1 . The website was accessed on November 30, 2012, and is no longer avail- able ( http://www3.nhk.or.jp/nhkworld/english/tv/todayscloseup/ index20120911.html ). The text is reproduced verbatim. 254 NOTES
Annex II: New Directive from Amir ul-Momineen Mullah Mohammad Omar Mujahid (September 14, 2009) 1 . Copy obtained from an international newspaper based in Islamabad. The orig- inal text is in Pashto and was translated with the help of an Afghan national. 2 . The words in parentheses were added for better understanding. 3 . Literal translation is the seeing and hearing department. 4 . The term responsible is often used interchangeably with security commander, front commander or responsible for operations, guerilla warfare or military matters. See Martine van Bijlert, “Unruly Commanders and Violent Power Struggles—Taliban Networks in Uruzgan,” Decoding the New Taliban , ed. Antonio Giustozzi, New York: Columbia University Press, 2009, p.167. 5 . Literaltr anslation. 6 . In this context, the Shura is presumably different from the military Shura in Peshawar. 7 . The relationship with the Committee and Shura is unclear. One possibility is that the Committee stands for the haiats or Complaints Committee. 8 . Unknown as to the type of card. 9 . Unclear whether singular or plural. 10 . Literal translation: he should be tortured until he dies.
Annex III: Taliban’s Code of Conduct * Translator’s Note: The Layha is the code of conduct (manual) and regulations of the Mujahids of the Islamic Emirate. The following document is the second edition of the Layha, published in 2010. It has been originally written in Pashto and translated into English for informational use by the International Committee of the Red Cross. This is not an official translation. The first Layha was published in 2006. This Code of Conduct replaces the 2009 version. Our aim has been to preserve the spirit of the original Pashto text. Therefore, deviations from the original structure of the articles and paragraphs have been kept to a minimum and made only when necessary in preserving the sense. The translator’s clarifications are shown by square brackets [. . .], while explanations of some words or phrases are shown in parentheses (. . .). English equivalents of names, titles, epithets and notions in Islamic theology have been regularized. The meanings of most Islamic judicial notions referred to in the text are given in footnotes. We have followed the Pashto–Russian dictionary of M. G. Aslanov in the transliteration of Arabic and Pashto words. * Copyright: The Islamic Emirate of Afghanistan. Publisher: The Education Commission. Publication date: First edition—1430 lunar year of the hegira system / Second edition—1431 lunar year of the hegira system. 1 . Surah 4. An-Nisa’ (Women), in The Holy Quran, Yusuf Ali Translation. 2 . Religious c ommunity. 3. And that’s all (Arabic). 4 . Deputy. 5 . Emir of the faithful. 6 . To draw in, to attract to the right way. 7 . Al Hidaya, Vol.2, p.34; Fath Ul-Qdir, Vol.5, p.34; Alamgiriya, Vol.2, p.284. 8 . “Dalgej” in the original. Military squad or section. NOTES 255
9 . Punishment not provided in the Sharia, but determined by the judge him- self. 10 . Those who have the right to cast their vote and express the opinion regarding sensitive is sues. 11 . A kind of taxation in the light of Sharia law. 12 . Fay in Islamic law is a definition of a booty or trophy which should never be divided among the participants of the war and should be given to the Public Treasury. 13 . “Bajt-ul-mal” in the original. 14 . It also could be interpreted as civilian affairs. 15 . “Tanzima rais” in the Pashto version is the person responsible for the coordi- nation of the organizational and administrative activities in a given zone. 16 . Civilian or issues related to the common people. 17 . Civilians. 18 . Any mentioned c ommission. 19 . “Mubariz” in the Pashto version, this word could be also translated as a brave soldier, fighter for a cause (for instance, fighter for national liberation). 20 . “Lagharzani” in Pashto version. 21 . “Musla” in the Pashto version. 22 . Different kinds of Islamic taxation and donation system. 23 . “Talavat” in the original. Reading (usually of the Koran). 24 . “Zikr” in the original. Repetition of the Divine Epithets. 25 . “Rahbari Shura” in the original.
Annex V: Interviews with Taliban Members on the Layeha 1 . A basic military formation of the Taliban, which is literally translated as front. It describes a basic formation of fighters of around 20, grouped around a sin- gle charismatic leader. For details, see Coghlan, “The Taliban in Helmand,” p.143. 2 . Referring to the time prior to Taliban’s seizure of power in 1996.
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Index
Abdali, 12. See also Pashtun Banna, Hassan al-Banna, 58 Abrahms, Max, 6–7, 107 Barfield, Thomas, 46 Abyssinia, 55 BBC, 23 Afghan Independent Press, 97 beard, 49–50, 79–81, 88–9 Afghan National Army, 21, 32 beheadings, 37, 71 Afghanistan belligerent, 55, 71, 77, 107 ethnicity, 11–12, 19, 46, 52, 92 Beradar, Mullah, 22 history, 7, 11–26, 114 bin Laden, Osama, 17–18, 25 society, 11–12 blog, 4 Afghanistan Non-governmental Security bombing. See suicide, suicide bombing Office, 21 Bonn, 18 Ahmadi, Qari Yousuf (Taliban booty, 28–9, 32, 34–5, 39–40, 50–1, spokesman), 75 61, 63, 71, 104, 106 Al Jazeera, 27 Braithwaite, John, 117 Al-Qaeda, 17–18, 20, 24–5, 58, 118 bribe, 18–19, 23, 40 amir (leader, king in Arabic), 41–2, 57, British, 104, 107 92 Buddhism, 11 amir ul-Momineen (Commander of the burka, 15 Faithful in Arabic), 41–2, 93–5, 103. See also Taliban cabinet, 18 andival (comrades in arms in Pashto), 20 Caliph, 42, 56–8, 62. See also Islam apostates, 54, 56–60, 70–1, 103. See camels, 62 also Jihad camouflage, 37, 82, 89–90 Arabic, 13, 27–8, 54, 68, 71, 103, 110 captive, captivity, 14, 36, 40, 60, 63, Armed Non State Actor (ANSA). See 68–9, 75, 86, 98, 113 Non State Actor (NSA) caravan, 14 atheistic, 24, 57 Casalin, Deborah, 86 Ayatollah, 66 casualties, 6, 9, 20–1, 23, 29, 37, 46, Azzam, Abdur Rahman, 17 67, 70, 76–7, 79, 82–4, 89–90, 92, 107–8 Baacha Khan Trust Educational ceasefire, 117 Foundation, 120 charisma, 30–1, 41–2, 91, 101, 109 bacha bazi (literally boy play, where boys checkpoint, 13, 17, 20, 95 are prostituted in an auction to the child, children, 37, 40, 47, 51, 62–3, highest bidder in Dari), 88. See also 70, 79–80, 84, 87–8 Pashtun Chorev, Matan, 119 Bamyan, 14, 17. See also Afghanistan CIA, 16 286 INDEX clergy, 62–3, 70 education, 3, 12, 15–16, 25, 27, 35, 37, coalition, 6–7, 21, 23, 29, 32, 46, 39–40, 59, 97–8, 120, 122 64, 67, 74–6, 79, 90, 116–17, Egypt, 57–8, 67 122 espionage, 36 code of conduct, 4, 11–12, 15, 27, 30, Esposito, John, 56 36, 46, 82, 104, 106–7. See also ethic, 38, 45, 57, 95 Layeha ethnicity, 11–12, 19, 46, 52, 92 combat, 8, 31, 62, 75–8, 84–5, 87–9, ethnocentrism, 46 105 evil, 56–7, 62, 65 combatant, 61–2, 68, 70, 77–8, 81, 84, execution, 15, 36, 39–40, 63, 68–71, 86, 89, 106. See also Humanitarian 78, 85–7, 89–90, 106 Law exogenous, 29–30 command, 5–6, 9, 14, 29, 42, 76, 78, expulsion, 42, 47, 95, 100 117 extortion, 39–40, 47 commander, 13–14, 20, 22–5, 29, 41–2, 57, 66, 68, 83, 91, 93, 95–6, Facebook, 112 98, 103 Fadlallah, Ayatollah Muhammad compensation, 47–8, 51, 62, 98 Hussein, 66–7, 70. See also suicide, constructivism, constructivist, 3, 8, 103, suicide bombing 107, 113, 115–16, 119–21 Fatah, 115 See also Non State Actor corruption, 6, 19, 23, 28–9, 42, 54, (NSA) 57, 98 fatwa, 66. See also Islam counterinsurgency, 7, 23, 29, 117 fighting, 4–5, 8–9, 15, 17, 22–3, 28–9, courage, 14, 47, 51 34–5, 41, 46–8, 59, 61–3, 67, 70, Crews, Robert, 60 73, 75, 80, 95–8, 100, 117–18 criminal, 15, 18, 29–30, 69, 75, 78, film, 23 84, 99 folklore, 11, 50 foreigner, 29, 34, 37, 39, 54, 60, 72, Dadullah, Akhund, 20, 24–5, 29 79–80, 98, 104, 112 Dari, 4, 12, 32, 71, 103 forgiveness, 48 dawah (invitation in Arabic), 48, 54, freedom, 56, 58, 60, 78, 96, 115 103. See also Islam fundamentalist, 58 decolonization, 57 fundraiser, 8 delegitimization, 3, 87 democracy, 19, 109 garrisons, 19 detainee, 14, 34–5, 70, 84, 86, 88, 105 gender, 120 detention, 81, 85–7 Geneva Call, 2–3 Dinstein, Yoram, 77 Ghazni, 39. See also Afghanistan directive, 4, 10, 75, 79, 81, 83–4, 86, girls, 13, 15–16, 25, 39 89, 112 Giustozzi, Antonio, 23, 25 disarmament, 38, 119 Glatzer, Bernt, 14 discipline, 8, 14, 22, 33, 95, 100 God, 13, 42, 53, 56, 58, 67, 93, 109 discourse, 25, 71, 90, 122 Gopal, Anand, 116 discursive, 6, 107 governance, 2, 6, 11, 15 Dost Mohammad Khan, 42, 104, 107 government, 2–3, 5–6, 13, 15–16, Dostum, Abdul Rashid, 13–14 18–24, 28–9, 33–5, 38, 46, 48, drone, 117 59–60, 63, 67, 69–72, 74, 76, drug, 5, 19 79–81, 85–6, 89–90, 92–3, 96–9, Durrani, 12, 15. See also Pashtun 103, 106, 108, 116, 118–19 DVD, 6, 39, 112 grassroots, 18 INDEX 287 graveyard, 16 customary humanitarian law, 73, Griffin, Michael, 16, 18 76–7, 85, 88, 105 Guantanamo, 87 distinction, principle of, 77–82 Guellali, Amna, 58 humanitarian law, international guerrilla, 5, 20, 40 humanitarian law, IHL, 2, 4, 6, gun, 94 8, 53, 61, 73, 75–8, 81–90, 101, 104–11, 113, 120 hadith, 46, 53, 61–3, 68–9, 93. See also jus ad bellum, 61 Islam jus in bello, 61, 67 Hamas, 57. See also Non State Actor Lieber Code, 82 (NSA) precaution, principle of, 83–4 hanged, 13–14 proportionality, principle of, 82–3 Haqqani, Sarajuddin, 9, 22, 24, 28, protection of civilians, 87–8 108. See also Non State Actor protection of detainees, 84–7 (NSA); Taliban qualification of conflict, 76, 79 harassment, 17, 19–20 San Remo manual, 78 Haroun, Mir, 31 humanity, 87, 106 Hazara, 12–14. See also Afghanistan hypotheses, 1, 30, 75 health, 19, 35, 37, 40, 74, 79–81, 88, 97 iCasualties, 21 hearts and minds, 29, 38, 117 ICJ (International Court of Justice), Hekmatiar, Gulbuddin, 9, 13, 16–17, 77, 82 22. See also Afghanistan; Non State ICRC (International Committee of the Actor (NSA) Red Cross), 8, 31, 73, 76–7, 85, 88 Helmand, 92–3, 98, 120. See also ideology, 22, 29, 52, 55, 58, 60 Afghanistan IED (Improvised Explosive Device), Herat, 14. See also Afghanistan 20–1, 37, 71, 84, 90 Hezb-e Islami, 9, 22, 108. See also illegitimate, 60, 80, 116 Hekmatiar, Gulbuddin illiterate, illiteracy, 93, 95–6, 112 Hezbollah, 57. See also Non State Actor imam, 41–2, 57, 63, 69–71, 103. See (NSA) also Islam hierarchy, 9, 71, 83, 92, 103 immoral, 97, 104, 109 homicide, 66, 69 immunity, 70, 77, 84 honor, 24, 46–7, 50–2, 96, 100, 104 imprisonment, 95, 100 hospital, 96 independence, 5, 24, 60 hostage, 65, 87, 89 India, 24 hostagetakers, 86 indiscriminate, 13, 74 hostilities (armed), 46, 61–2, 67–9, infidel, 34, 37, 39, 48, 54, 59, 70–1, 75–8, 81, 83–5, 87–9, 106 78, 103–4. See also Islam; kufr Humanitarian Law (infidel) 1949 Geneva Conventions, 2, 74, infrastructure, 19, 92, 97 76–7, 82, 85, 87–8, 105 injury by attack, 48, 83 1977 First Additional Protocol to the innocence, innocent people, 20, 64, 70, 1949 Geneva Conventions, 77, 82 80–1, 84 1977 Second Additional Protocol insecurity, under Taliban or Karzai rule, to the 1949 Geneva Conventions, 19, 28 76–8, 84, 87–8, 105 institutionalism, 103, 113 combatant, 61–2, 68, 70, 77–8, 81, instrumentalization of norms, 1, 53 84, 86, 89, 106 insurgency, 11, 16, 18–19, 21–4, 76, comparison with Layeha, 73–91 116–17, 119 288 INDEX intelligence gathering, agents, 79, 97, Islamic Emirate (of Afghanistan), 14, 119 27, 38, 42, 93–5, 108 internalization of norms, 91, 108, 120 Islamic Law International Committee of the Red comparison with Layeha, 53–72 Cross. See ICRC (International dar al-harb (abode of war in Arabic), Committee of the Red Cross) 57 International Humanitarian Law. See dar al-islam (abode of peace in Humanitarian Law Arabic), 57 Iran, 14, 16, 98 darura (principle of necessity), 64 Iraq, 65 huddud (crimes as addressed by the ISAF (International Security Assistance Qur’an and the hadith), 69 Force), 107, 116 ijma (consensus of jurists and scholars ISI (Inter-Services Intelligence of of the Muslim world), 61 Pakistan), 16–17, 23–4, 29 ijtihad (effort of jurists to arrive at Islam correct judgments in Islamic law), ansar (helpers, alluding to those who 54 accommodated the refugees from jinayat (offences of bodily injuries and Makka to Medina during the time homicide), 69 of the Prophet in Arabic), 71 khtilaf (legitimate disagreement), 53 dawah (invitation), 48, 54, 103 qiyas (deductive analogy in which hadith, 46, 53, 61–3, 68–9, 93 the teachings of the hadith are hijra (migration), 71 compared with the Qur’an), 61 imam, 41–2, 57, 63, 69–71, 103 reciprocity, 64–5, 67, 70 khums (tax based on one-fifth of the redemption for prisoners, 68 war booty in Arabic), 71, 104 sharia, 13, 15, 28, 42, 49–50, 53, kufr (infidel), 34, 37, 39, 48, 54–9, 57–8, 60, 63, 65, 67, 69, 72, 74, 70–1, 78, 103–4 81, 94–5, 100, 103 madrassa, 17 siyar (Islamic law of nations, law of Makka, Makkans, 54–5, 57, 71 combat), 61, 69 mujtahid (a person who engages in ta’zir (offences not mentioned in intellectual ijtihad), 54 the primary sources of Islamic law Prophet Mohammad, 54, 56–7, 60–3, where the judge has discretionary 68, 71, 94 authority in stating the type of Qur’an, 48, 53–6, 59–62, 64–6, punishment), 69, 71, 106 68–9, 91, 93–4, 99–101, 109–10 islamists, 72 Ramadan, 27 Ismael Khan, 13 Shia, 14, 42 Israel, 57, 67, 115 Shura, 9, 22–3, 29, 41, 86 Sufis, Sufism, 45, 56, 83, 93 Jalalabad, 15, 120. See also Afghanistan Sunnah, 61 Japanese, 14 Sunni, 14, 42, 67: Hanafi, 64; Jewish, 55 Hanbali, 65; Maliki, 65 Jihad Tabuk, battle of, 56 Fadlallah, Ayatollah Muhammad tawba (repentence), 46, 96 (see also Hussein, 66–7, 70 Islam; repent) Greater Inner Jihad, 56 ulema (Islamic scholar), 27, 42, 48–9, jahadah (struggle, striving in Arabic), 53, 103 54 ummah (global community of Jihad, 17, 24–5, 27, 37, 50, 54–62, believers), 53, 55, 58, 67 64, 66–7, 70–2, 96, 103, 113 Islamabad, 5. See also Pakistan Jihadi, 17, 25, 54, 60, 83, 112 INDEX 289
jtihad (diligent, industrious, and Lahore, 5. See also Pakistan laborious endeavor), 54 landmine, 3 maharaba (aggression, offensive Latin, 53 violence), 56 Layeha. See also Taliban martyrdom, 24, 66–7, 83 addressee, 31–3 Mujahid, 13, 15–17, 19, 22–4, comparison with humanitarian law, 28–30, 35–6, 38, 41–2, 45–6, 50, 73–91 74, 81–5, 87–8, 94, 96–8 comparison with Islamic Law, 53–72 Muneeb, Mufti, 66 comparison with Pashtunwali, 45–52 Qaradawi, Yusuf al-Qaradawi, 66 Layeha, 1, 4–10, 26–43, 45–54, Smaller Outer Jihad, 56–7 58–61, 63–5, 67–73, 75–6, 78–83, suicide, suicide bombing, 20–1, 23–4, 85–101, 103–6, 108–13, 120, 122 37, 39–40, 53–4, 63, 65–7, 70–1, legitimization process, 30–1 78–9, 82–3, 88–90, 104–6, 117 Leitmotiv, 38 Tantawi, Muhammad Sayyed, 67 one-way mirror model, 110–23 Taymiya, ibn, 57, 66 origin, 27–30 world revolution, 56, 58, 60, 70, 115 perception by Taliban, 91–101 Zuhayli, al-Zuhayli, 62–3, 70 recruitment of minor, 37, 87–9 Jirga, 48–9, 51. See also Pashtun; sanction, 28, 30–1, 41–2, 91, 95, pashtunwali (indigenous customary 99–101, 122 code of behavior) spies, treatment of, 34–5, 39, 59, 69, job provider, opportunity, 5, 97 78, 80, 86, 89, 96 journalist, 5, 10, 25, 29, 79–80, 112, structure, 33–41 116 leadership of Taliban, of non state actor, judge, 36, 49, 69, 86 1, 3–4, 7–10, 15, 17, 22–8, 31, jurisdiction, 57 39–40, 42, 50–2, 57, 69, 71–5, 80, jurisprudence, 62, 64 83–4, 86, 88, 90–1, 98, 100–1, justice, 15, 19, 45–8, 51, 77, 97–8, 104–22 100, 110, 120 Lebanese, 66 legality, 65–6 Kabul, 5, 11–15, 18, 21, 23, 33, 54, 79. legitimacy, 1–4, 6–9, 16–17, 19, See also Afghanistan 23–31, 33, 40–2, 57, 60–1, 73–4, Kandahar, 9, 13–16, 18, 22, 24, 98, 87, 90–1, 94, 100–1, 103, 105, 120. See also Afghanistan 107–10, 113–16, 118–19, Karachi, 22. See also Pakistan 121–2 Karzai, Hamid, 6, 18–19, 23, 29, 40, legitimate, 6, 17, 36–7, 50, 53, 56–7, 59, 92, 108, 116, 118–19 64, 70, 73, 78–9, 81, 88, 104, Kashmir, 66. See also India; Pakistan 107–8, 114, 119 Khalis, Younus, 59, 97 legitimization, 1–10, 17, 25, 27–33, 40, kidnapping, 29, 31, 38–41, 47, 87, 89 71, 73, 81, 87, 91, 101, 103–14, Kilcullen, David, 5, 22 121–2 killing, 14, 17, 20–1, 34–6, 40, 48, 51, liberalism, 19 59, 62–6, 68–70, 72, 74, 85–8, 98, liberty, 24, 64, 85 100, 105–7 lifestyle, 15, 97 king, kingmaker, 11–12, 42 Linschoten, Alex Strick van, 26 kinship, 22 literacy, 112 Kirghiz, 12 literate, 25, 93 Koran. See Qur’an literature, 3, 5–6, 57, 61, 103 kufr (infidel), 34, 37, 39, 48, 54–9, livelihood, 92 70–1, 78, 103–4. See also Islam livestock, 62, 70 290 INDEX looting, 62 murder, 48, 67, 85, 87–9, 106 loyalty, 18, 35, 79, 118 music, 15 Muslim, 36, 38, 53–68, 70, 73, 75, 78, madrassa, 17. See also Islam; 85, 95, 120 radicalization Muslim Brotherhood, 58 mafia, 17 Mutawakhil, 17, 74 maiming, 70, 106 mutilation, 38–40, 65, 70–1, 85–7, 89, Makka, Makkans, 54–5, 57, 71. See also 106 Islam; Saudi Arabia, Saudis Muttaqi, Amir Khan, 27 manipulation (religious), 110, 122 manipulative (approach, strategy), 71, Najibullah, Mohammad, 13–14 73 Nangrahar, 39. See also Afghanistan Mansur, Akhtar Muhammad, 22, 203, narrative, 15, 111, 114, 116–17, 122 229 nation, 12, 16, 58, 74, 108, 112 March, Andrew, 17, 53, 118 NATO, 20–1, 75–6, 117, 120 massacre of Taliban, 14 necessity, 61, 63–8, 70, 82–3, 88–9, Massoud, Ahmed Shah, 14–15. See 106 also Afghanistan; Non State Actor negotiation, 116, 119 (NSA) Newsweek, 113 Mawdudi, Abu Ala al, 58, 61, 68 NGO, 2, 5, 17, 19, 34–5, 37–40, 59, maximization, solidarity, 107–8 72, 78–80, 120 Mazar-i-Sharif, 14. See also Afghanistan night letter, 6, 9, 20, 112. See also McChrystal, Stanley Allen, 117 Taliban medieval, 58, 64 Non State Actor (NSA). See also Taliban Medina, 54–5, 71. See also Islam; Saudi Al-Qaeda, 17–18, 20, 24–5, 58, 118 Arabia, Saudis Fatah, 115 membership of ANSA, Taliban, 8, 22, Hamas, 57 29, 31, 78, 92, 100 Haqqani, Sarajuddin, 9, 22, 24, 28, methodology, 4, 9, 53 108 microsocieties, 11–12 Hekmatiar, Gulbuddin, 9, 13, 16–17, military, 4, 6, 9, 13–14, 16, 20–3, 25, 22 28, 34–5, 37–41, 49, 57, 59, 61–4, Hezbollah, 57 66–7, 71–2, 74, 76–7, 79–84, 88–9, marginalization, 3 93–6, 98, 106, 108, 118, 120 Non State Actor (NSA), 1–8, 55, militia, 112 76–8, 85–6, 101, 108, 113–22 mingling with local population, 90 PLO (Palestine Liberation monopoly, 112 Organization), 115 mosque, 27, 55 Salafi group in Afghanistan, 22 Mujahedeen, Mujahedin, Mujahids pl. Nooristan, 93, 96. See Afghanistan of Mujahid. See Mujahid norm, 1–2, 4, 6–7, 53, 73, 75, 104, Mujahid (a person who engages in 106, 113, 121 Jihad), 13, 15–17, 19, 22–4, 28–30, 35–6, 38, 41–2, 45–6, 50, offence, 47, 69, 71, 99 74, 81–5, 87–8, 94, 96–8. See also Omar, Mullah, 9, 13, 15, 17, 20, 22, Jihad 24, 26–7, 29–31, 35–7, 41–3, 47, mullah (religious leader or teacher, 71, 86, 94, 98, 100, 103, 113, 117 preacher), 9, 13, 15, 17, 22, 24, opponents, 38–9, 66, 103 26–7, 29–31, 35–7, 41–3, 47, 59, opportunistic, 118 71, 86, 94, 98, 100, 103, 112–13, oppressor, 60 117, 120, 122. See also Islam organizational theory, 6, 8 INDEX 291 organizations, 6, 8, 19, 21–2, 39, 74, pillage, 87, 89 88, 90, 108, 120, 122 PLO (Palestine Liberation orphans, 17 Organization), 115. See also Non State Actor (NSA) Pakistan, 4–5, 12, 14, 16–19, 22–4, 66, poems, 6, 9, 112 93, 116 poet, 27, 45, 97 Pakistani, 9, 16, 23–4, 29 population, 7, 9, 12–16, 18–20, 23–5, Palestine, 65–6 28–9, 31–2, 38–40, 47–8, 52, 63, Palestinian, 57, 67, 115 67, 71–2, 81, 83–5, 90, 93, 98–9, Pashto, 4–5, 12, 28, 32, 45–6, 50, 71, 106, 117 103, 110. See also Pashtun practitioners, 2, 5, 7, 32, 101 Pashtun. See also pashtunwali pragmatism, pragmatic, 18, 25, 38, 41, (indigenous customary code of 52, 81, 84, 94, 97 behavior) precaution, precautionary, 75–6, 83–4, Abdali, 12 88–90, 105 bacha bazi (literally boy play, where prison, 68, 85–6, 95, 98–100 boys are prostituted in an auction prisoner, 29, 34–6, 39, 50–1, 68–70, to the highest bidder in Dari), 88 77, 80, 84–7, 89, 106, 118 Durrani, 12, 15 progeny, 64 Ghilzai, 12, 14 propaganda, 4, 6, 24–5, 31, 45 Pashto, 4–5, 12, 28, 32, 45–6, 50, proportionality. See humanitarian law, 71, 103, 110 international humanitarian law, spingiri (white beard in Pashto), 49 IHL pashtunwali (indigenous customary protection, 17, 29–30, 34, 38–9, 46–8, code of behavior) 51, 61–3, 70, 75–81, 84–5, 87–90, badal (revenge), 46, 51 93, 99, 105–7, 117, 120 comparison with Layeha, 45–52 proximity, 84 ezat (honor), 46 punishment, 15, 35–6, 39, 41–2, 47, ghairat (bravery), 47 51, 57, 59, 62–3, 68–71, 85, 89, Jirga, 48–9, 51 91, 95–6, 99–100, 106, 110 mediation, 47, 51 puppet, 59, 78 misconduct, pardon for, 48 musawat (equality), 50 qanoon, 92 nanawati (pardon), 48–9, 51 Qaradawi, Yusuf al-Qaradawi, 66. See nang (chivalry), 47 also Jihad; suicide, suicide bombing pashtunwali, 4, 8, 12, 45–9, 51–3, Qatar, 113, 118 95, 104–9 questionnaire for interview, 5, 91 poar (compensation), 47–8, 51 Quetta, 9, 22–3, 27, 29, 41, 120 restorative justice, 46–7 Qur’an, 48, 53–6, 59–62, 64–6, 68–9, retributive justice, 69 91, 93–4, 99–101, 109–10. See also peace, 13, 16, 49, 57–8, 108, 118 Islam penalty, 69 Qurayza (Jewish tribe), 55. See also perfidy, 66, 70, 82, 106 Qur’an Persian, 12 Qutb, Sayyid, 58 Peshawar, 5, 33, 100, 120. See also Pakistan Rabbani, Burhanuddin, 13 photograph, photographing, 39, 87, radicalization, 114, 116, 121–2 106 radio, 6, 112, 117 piety, 14–15, 41, 55 Rahman, Abdur, 107 pilgrimage, 66 Ramadan, 27. See also Islam 292 INDEX ransom, 29, 39–41, 62, 68, 87, 95, 98 siyar (Islamic law of nations, law of rape, 13 combat), 61, 69. See also Islamic Rashid, Ahmed, 58, 90, 107, 120 Law rebellion, 60 slaughter, 55, 62 reconciliation with Taliban, 118–20 slavery, 48, 60 refugee, 15, 19, 71 smoking, 59 religion, 12, 45, 53–4, 56, 59, 64, 85, SMS, 25, 32, 112 94, 97, 101, 108–10, 115 socialization, 12, 108, 120 repent, 34–5, 41, 68–9, 99, 103 sociology, 8 repetition, 18, 95 sovereignty, 6, 24, 60, 64, 84, 115, 119 resilience, 16 Soviet, 13, 16, 20, 24, 42, 71–2, 74, retaliation, 46, 64, 69 92, 96, 104, 122 revenge, 46, 51–2, 85, 99–100, 104 spies, 34–5, 39, 59, 69, 78, 80, 86, 89, Rida, Rashid, 58 96 rulers, 57, 107 spokesman, spokesperson of Taliban, rules, 28, 33, 40, 45–6, 58, 61–2, 69, 5–6, 10, 25, 64, 75, 92–4, 96, 107, 75–6, 82, 86, 88–90, 92–4, 96, 119 98–101, 103, 105–6, 110 spy, treatment of, 36, 40, 86 Rushd, Ibn, 53 squad, 15, 83, 87 Russian, 107 Sufis, Sufism, 45, 56, 83, 93 Ruttig, Thomas, 22 suicide, suicide bombing, 20–1, 23–4, Rzehak, Lutz, 45, 50 37, 39–40, 53–4, 63, 65–7, 70–1, 78–9, 82–3, 88–90, 104–6, 117. Sabaktigin, Mahmud ibn (998–1030), See also Jihad 11. See also Afghanistan Sunnah, 61 Saffarid, 11. See also Afghanistan Sunni, 14, 42, 67. See also Islam sanction, 28, 30–1, 41–2, 91, 95, Swiss, 23, 27 99–101, 122. See also Layeha sword, 25, 55, 58, 60, 68. See also Jihad Sangisar, 13. See also Afghanistan Sarakhsi, Muhammad ibn Ahmad ibn Tajik, 12–14, 18 Ab i Sahl al-, 53 Talib, Taliban, 1–36, 38–40, 42–3, Sassoli, Marco, 86 45–54, 56, 58–68, 70–6, 78–82, Saudi Arabia, Saudis, 14, 18 84–8, 90–101, 103–22 Schneckener, Ulrich, 115–16 Taliban security, 2, 9–10, 15–16, 18–19, 21, 24, Estankazi, Mohammad (former 28, 35, 48, 76, 79–80, 82, 96–7 Deputy Minister of Health for the Security Council, 2, 76 Taliban), 74 Semple, Michael, 59 Governance, 15 Sharafat, Yakob, 59, 97–8 Hakim, Abdul (former Taliban sharia, 13, 15, 28, 42, 49–50, 53, 57–8, representative to the UN), 17, 19, 60, 63, 65, 67, 69, 72, 74, 81, 29, 41, 97 94–5, 100, 103. See also Islamic Haqqani, Sarajuddin, 9, 22, 24, 28, Law 108 Shia, 14, 42. See also Islam Haqyar, Muhammad Hassan (former Shindo, Yusuke, 18 deputy minister for planning of the shooting, 23, 36, 117–18 Taliban), 97–8 Shura, 9, 22–3, 29, 41, 86. See also Hayat, 99 Islam; pashtunwali insurgency, 11, 16, 18–19, 21–4, 76, Sikhs, 104 116–17, 119 Sinno, Abdulkader, 6 Mansur family, 22 INDEX 293
mindset and identity, 107 ulema (Islamic scholar), 27, 42, 48–9, Muzhdah, Waheed (former official of 53, 103. See also Islam the Taliban foreign affairs), 16–17, ummah, 53, 55, 58, 67. See also Islam 97–8 UN (United Nations), 2, 5, 9, 14, nature, 14–15 73–4, 76, 115, 118–19 Nayeb (deputy), 69, 71, 103 UNAMA, 9, 20–1, 64, 73, 84, 90, 107, Neo-Taliban or New Taliban, 25–6 110, 120 origin, 13–14 unbelievers, 54–7, 59, 62. See also kufr Quetta shura, 9, 22–3, 29, 41 (infidel) regime, 7, 13, 15–19, 25–6, 28, 74, unemployment, 19, 119 87, 90, 92, 97, 107 UNODC, 19 regulation, 27–8, 42, 45–6, 61, 70, utilitarian, 63 93, 97, 103 Uzbek, 12–14 tax, taxation, 13, 29, 38, 87 Tantawi, Muhammad Sayyed, 67 vaccination, 80, 88 Tarzi, Amin, 25 victim, 20, 35, 46, 48, 52, 100 tawba (repentence), 46, 96. See also video, 16, 87, 112 Islam; repent violation of norms, rules, law, 31, 38–9, Taymiya, ibn, 57, 66. See also Jihad 41, 64, 95–6, 98–100 terrorism, 6–7, 21, 116 violence, 2–3, 13, 29, 51, 56–8, 65, 76, terrorist, 2, 18, 109, 116 84 Tora Bora, 22 virtue, 15, 32, 77, 91, 95, 97 torture, 17, 36, 46–8, 65, 69–70, volunteers, 17, 20, 100 85–90, 105–6 tradition, 18, 37 Wardak, 39. See also Afghanistan traditional, 2, 6, 29, 31, 46, 49, 64, 88 Waziristan, 120. See also Afghanistan translators, 36, 79–81 Weinstein, Jeremy M., 7, 107 treatment of prisoners, 34–5, 39, Weltanschauung, 3 48–50, 61, 63, 65, 67–71, 74–5, woman, women, 15–16, 23, 46–8, 51, 85–90, 94, 103, 105–6. See also 60, 62–3, 70, 74, 79–80 Humanitarian Law; Islamic Law; worldview, 3, 71, 111, 114–15, 117 Layeha treaty, 2, 57 Zabiullah (Taliban spokesperson), tribal, 12, 22, 46, 48–52, 55, 59 96 tribe, 11–12, 45–6, 49, 55 zamin (land in Dari), 47 tribunal, 86, 95 zan (women in Dari), 47 TTP, 9 zar (gold in Dari), 47 TV, 117 Zuhayli, al-Zuhayli, 62–3, 70. See also Twitter, 6, 25, 107, 112 Jihad