Conflict in Afghanistan II - ICRC

260 Pages·2011·4.78 MB·English

Conflict in Afghanistan II
Volume 93 Number 881 March 2011 V Volume 93 Number 881 March 2011
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Part 2: Law and humanitarian action lu
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Interview with Ms Fatima Gailani 93
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President of the Afghan Red Crescent Society u
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Has the armed conflict in Afghanistan affected the rules on the er 8
conduct of hostilities? 81
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Robin Geiss and Michael Siegrist a
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International law and armed non-state actors in Afghanistan 2
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Annyssa Bellal, Gilles Giacca and Stuart Casey-Maslen 1
The Layha for the Mujahideen: an analysis of the code of conduct
for the Taliban fighters under Islamic law
Muhammad Munir
Annex: The Islamic Emirate of Afghanistan. The Layha [Code of
Conduct] For Mujahids
Combatants, not bandits: the status of rebels in Islamic law
Sadia Tabassum
Between a rock and a hard place: integration or independence
of humanitarian action?
Antonio Donini
The International Committee of the Red Cross in Afghanistan:
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reasserting the neutrality of humanitarian action
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Fiona Terry
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The protective scope of Common Article 3: more than meets f
the eye l
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Jelena Pejic c
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Humanitarian debate: Law, policy, action
Conflict in
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Volume93Number881March2011
Humanitarian debate: Law, policy, action
Conflict in
Afghanistan II
Part 2: Law and humanitarian action
CONTENTS
5 Interview with Ms Fatima Gailani, President of the Afghan Red
CrescentSociety
Articles
Thelaw
11 Has the armed conflict in Afghanistan affected the rules on the
conductofhostilities?
RobinGeissandMichaelSiegrist
47 Internationallawandarmednon-stateactorsinAfghanistan
AnnyssaBellal,GillesGiaccaandStuartCasey-Maslen
81 The Layha for the Mujahideen: an analysis of the code of conduct
fortheTalibanfightersunderIslamiclaw
MuhammadMunir
103 Annex: The Islamic Emirate of Afghanistan. The Layha [Code of
Conduct]ForMujahids
121 Combatants,notbandits:thestatusofrebelsinIslamiclaw
SadiaTabassum
Humanitarianaction
141 Between a rock and a hard place: integration or independence of
humanitarianaction?
AntonioDonini
159 30 years in Afghanistan. ICRC photo archives account by
AlbertoCairo
173 The International Committee of the Red Cross in Afghanistan:
reassertingtheneutralityofhumanitarianaction
FionaTerry
2
Volume93,Number881March2011
ArticlespublishedbytheReviewreflecttheviewsofthe
authoraloneandnotnecessarilythoseoftheICRCorof
theReview.OnlytextsbearinganICRCsignaturemaybe
ascribedtotheinstitution.
Selected articles on international humanitarian law
189 TheprotectivescopeofCommonArticle3:morethanmeetstheeye
JelenaPejic
Reports and documents
227 Nationalimplementationofinternationalhumanitarianlaw
Biannualupdateonnationallegislationandcaselaw:
July–December2010
Books and articles
239 RecentacquisitionsoftheLibraryandResearchService,ICRC
THE FOLLOWING PAPERS APPEARED IN Vol. 92 No. 880 (Conflict
inAfghanistanI):
841 Editorial
Conflict in Afghanistan I
847 InterviewwithDrSimaSamar
ChairpersonoftheAfghanIndependentHumanRightsCommission.
Articles
Socio-politicalandhumanitarianenvironment
859 Afghanistan:anhistoricalandgeographicalappraisal
WilliamMaley
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Volume93,Number881March2011
ArticlespublishedbytheReviewreflecttheviewsofthe
authoraloneandnotnecessarilythoseoftheICRCorof
theReview.OnlytextsbearinganICRCsignaturemaybe
ascribedtotheinstitution.
877 DynamicinterplaybetweenreligionandarmedconflictinAfghanistan
KenGuest
899 TransnationalIslamicnetworks
ImtiazGul
925 Impunityandinsurgency:adeadlycombinationinAfghanistan
NorahNiland
951 The right to counsel as a safeguard of justice in Afghanistan:
thecontributionoftheInternationalLegalFoundation
JenniferSmith,NatalieRea,andShabirAhmadKamawal
967 State-buildinginAfghanistan:acaseshowingthelimits?
LucyMorganEdwards
993 ThefutureofAfghanistan:anAfghanresponsibility
TaibaRahim
Books and articles
1003 RecentacquisitionsoftheLibraryandResearchService,ICRC
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Volume93Number881March2011
Interview with
Fatima Gailani*
PresidentoftheAfghanRedCrescentSociety.
Ms Fatima Gailani was appointed as the President of the Afghan Red Crescent
Society in 2005. She was born in 1954 in Kabul and is the daughter of Pir Sayed
Ahmed Gailani, the leader of the National Islamic Front of Afghanistan, who fought
againsttheSovietoccupationofAfghanistaninthe1980s.Shelivedinexileduringthe
Soviet invasion of Afghanistan and acted as spokesperson in London for the Afghan
Mujahideen. After her return to Afghanistan she was chosen as a delegate to the
Emergency Loya Jirga (Grand Council) of June 2002 and was appointed as a
constitution-drafting and -ratifying commissioner. Ms Gailani is the author of two
books(TheMosques ofLondonandabiographyofMohammadMusaShafiq).
HowdoyouseetheconflictinAfghanistan?
It’s been going on now for more than thirty years, and I should get used to it.
In Afghanistan we went through different stages of conflicts, from an invasion by
the superpower of the time to civil war between ethnic or linguistic groups and
Islamic sectarian fighting. As Afghans we should get used to it, but conflict is
neithernormalnornatural, soofcoursewewillnot.
My hope is that one day we will see the end of it. I am an optimist by
nature,andinmyplansandmyimaginationIalwayslookaheadtothetimethat,if
Godwills,therewillbenoconflict,asitwaswhenIwasbroughtupinAfghanistan.
I was lucky enough to see Afghanistan before the wars: a country that was re-
spected,wherewelivedinharmony.ThisisallIhavebeenabletodo–tohopefor
thebestanddealwithwhatcomestoday.
* The interview was conducted in Kabul, Afghanistan, on 8 March 2011 by Walid Akbar Sarwary,
SpokespersonandHeadoftheInformationandDisseminationDepartmentoftheAfghanRedCrescent
Society.
doi:10.1017/S1816383111000257 5
InterviewwithFatimaGailani
Whatarethebiggestchallenges thatwarbringstotheAfghancommunity?
Itdependswhoyouarespeaking to.Therearepersonalproblems,ofcourse,such
aslosingone’slivelihoodorhealth.Youknow,forinstance,thatwehavemillions
ofdisabled people. Afterlosingalimb theyhave toliveon,andthey haveto cope
with their disability for the rest of their lives. Some do, some can’t. Some lose all
interest in life; they turn to drugs, they get up to mischief and suchlike. We have
seenitall.
But as someone who was exiled because of the conflict and came back
hoping that it was over, but then saw it erupt again, I take a more professional
point of view. As the head of the Afghan Red Crescent Society I ask myself what
I can do, and, if I cannot end the conflict for these people, how best to approach
themtoatleasteasesomeoftheirproblems.Theseproblemsincludepovertyand
instability,orbeinganorphan,orawidowwithyoungchildren.SowhateverIcan
do,Iwanttodoitperfectlyfortheirsake.
The people working for the Afghan Red Crescent certainly are here to provide
servicesforthepeoplewhoareaffectedbywar.Whotypicallyseekshelpfromthe
AfghanRedCrescent?
In conflict we can take different approaches. They will depend on the number of
people affected, whether they are wounded, whether they are internally displaced
persons,andsoon.Iftherearelargenumbersofsuchpeoplewithinacertaintime,
such as soon after the conflict, we at least have the luxury of being helped by the
ICRC [International Committee of the Red Cross]. With that help we are able to
lookafterthem.Buttherearetimeswhenasmallernumberofpeopleareaffected
by that same conflict: they lose their livelihood, their homes, their health–their
ordinary everyday life is destroyed. Though there are not so many of them, this
happensquitefrequently.Sincetheycometousalittlelate,theydon’tcorrespond
tothecriteria forICRC assistance. Then, of course, wehave todealwiththem on
ourown.
For instance, in the minds of people who are disabled, either mentally or
physically,theRedCrescentSocietyisthefirstplacetogotoseekhelp.Theycome
to us for initial treatment, and sometimes, when they are totally exhausted, they
come to us again for support. And you cannot argue with them. You cannot tell
them theyhave cometoolate andthatitisnolonger within ourmandate tohelp
them,orthattheydon’tmatchourcriteria.Whensomeoneissick,tired,withonly
apennyintheirpocket,youcannotreasonwiththem.Somehowyouhavetohelp
them.Again,aconsiderableamountofourtimeandresourcesisdevotedtothose
people.
Andthentherearethewomenandchildrenwhoarevictimsofconflict–I
don’t ever want to get used to that, although I see them every day. You can never
imagine how it is when a widow comes with small children. They have lost their
father, the family’s only breadwinner, and there the woman is, illiterate, without
anyskills,youngandvulnerable,withatleastthreechildrentocarefor.Sowehave
tostepin.Andthereisnowhereelseforhertogo.
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Volume93Number881March2011
Whatarethebiggestchallengesyoufaceinhelpingthosepeople?
Wedon’thavetheluxury of singlingoutone ortwo oreven threechallenges. We
have lots of challenges because the needs are so vast and our funds are so often
inadequate. So lack of funds is themain problem. Another problem is that some-
timeswe cannot get tothose people because Afghanistan is full of mountains and
deepvalleys,andtheroadsarenotgood.Evenifyouarenotempty-handedanddo
have something to give, it is extremely hard to reach them. And sometimes, for
instanceaftertheearthquakethatstruckavalleysouthofSamangan,ittakesthema
longtimetogettousoreventocontactthegovernmentsomewheresothatweare
informed. The terrain is extremely difficult, and, although telecommunication is
nowreallygood,therearestillplaceswithoutaccesstoit.
So sometimes we are too late in getting to them, or–most of the time–
they are too late in coming to us. Even so, we are in a much better position than
anyoneelsebecauseofthepresenceofourvolunteers.Wewillknowmuchsooner
thanothers,butstillnotassoonasIwantittobe.
The armed conflict in Afghanistan is ongoing, and many provinces or districts
that were safe before are now increasingly facing security challenges. What are
yourconcernsaboutthisdevelopment?
Naturally, as a normal Afghan, my concern is: when will peace come? When am
Igoingtohaveanormallife?Thatismyquestionmark.Butapartfromthat,asthe
president of such a big humanitarian institution and speaking on its behalf, our
concernisthattheexpectationsaremuchgreaterthanourpossibilities.Thismeans
that we will have more of a problem financially. And then, of course, even access
to areas where people need our help is of constant concern. It is thanks to our
neutrality that we have been able to reach people, be accepted by both sides, and
havefarbetteraccessthananyoneelseinAfghanistan.Buttomaintainthataccess,
wehavetobepoliticallyverycareful,veryalert,awarethattheslightestviolationof
our neutrality or independence could endanger it. That is vitally important to
ensurethatwedonotloseourabilitytoreachthosepeople.
Yetevenifwepreserveourindependenceandneutralityperfectlyandthus
haveaccessandareacceptedbyallsides,howcanwedealwithsuchvastproblems
ifourhandsareempty?Anddon’tforget,inAfghanistanit’snotjustconflictalone,
but conflict and natural disasters everywhere. So we can really do very little when
confrontedwiththeproblems theretoday.
WhatarethefutureplansfortheNationalSociety,andespeciallyitsactivitiesin
aidofpeoplewhoareormayinfuturebeaffectedbytheconflict?
My hope is to gain the support of people or organizations that can help us.
But again, we have to be extremely careful not to violate our neutrality and inde-
pendence. That is not easy. It’s like walking on a tightrope: we have to maintain
the balance. But we also have to be much better at our own work, so at least, if
we are more efficient, our small funds will be too. I hope to introduce reforms
in some areas where our efforts have been unsuccessful and thus to attain that
objective.
7
InterviewwithFatimaGailani
Today Afghanistan is experiencing donor fatigue, whether within the
International Red CrossandRed CrescentMovement ormore widely withregard
to the country as a whole. For thirty-two years, which is a long, long time, we
have needed help from others. So I am trying very hard to set a new course. Our
New Year starts very soon, and my promise to myself–more to myself than to
others–is that I will reactivate our own resources and capabilities, so that, if one
daywestandalone,wewillatleasthavesomethinginhand.
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