Published online by Cambridge University Press: 24 November 2009
A common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the U.S. war in Afghanistan emerged within the Bush administration in 2002. The plan was developed within months after the United States had used massive military force in Afghanistan on October 7, 2001, against local members of al Qaeda and “military installations of the Taliban regime” during the war in Afghanistan that is still ongoing. It was approved in January 2002 and led to high-level approval and use of unlawful interrogation tactics that year and in 2003 and 2004. A major part of the plan was to deny protections under the customary laws of war and treaties that require humane treatment of all persons who are detained during an armed conflict, regardless of their status and regardless of any claimed necessity to treat human beings inhumanely. The common plan and authorizations have criminal implications, as denials of protections under the laws of war are violations of the laws of war, which are war crimes.
THE AFGHAN WAR, LAWS OF WAR, AND HUMAN RIGHTS
The October 7 Afghan war became an international armed conflict between U.S. combat forces and the Taliban regime, which had been a de facto government in control of some 90 percent of the territory of Afghanistan and had been recognized by a few states as the de jure government of Afghanistan.