Afghan-Taliban talks could boost the case for war crimes charges against Bush Administration officials

As Spencer Ackerman reported yesterday, it appears the Taliban have been talking to the Afghan government, with the help of Saudi Arabia.

Reports last week noted that Afghan President Hamid Karzai had asked the Saudi king for help in reaching out to the Taliban, in the hope of brokering a peace deal that could possibly bring the Taliban, in some form, into the Afghan government.

Though Ackerman accurately notes that the Bush administration wouldn’t have any legitimate ground to object, the inclusion of any Taliban officials in the Afghan government could present a serious legal problem for Kabul. The administration has consistently maintained that the Taliban are unlawful combatants in the so-called war on terror. If the Taliban were to join the Afghan government, they could no longer be considered “enemy combatants.”

Experts on the laws of war have long argued that none of the prisoners at Guantanamo Bay have had their combatant status evaluated by the sort of “competent tribunal” required by the Geneva Conventions. Many experts also say the Taliban, which ran the Afghan government before the war, should never have been deemed illegal combatants — given that fighting on behalf of a government doesn’t violate the laws of war.

But if talks between the Taliban and the Karzai government actually lead to a reinstatement of Taliban officials in the Afghan leadership, that could undermine the U.S. position even more. It could put the U.S. officials who devised and supported the policy of denying captured Taliban POW status into an even worse legal position than they’re in already.

Judge Evan Wallach, a federal judge on the U.S. Court of International Trade, a former JAG officer and expert on the laws of war, has written about the U.S. history of prosecuting other countries’ officers when they failed to provide U.S. soldiers being held prisoner with the minimum trial standards the Geneva Conventions require –- even when the enemy nation claimed that the U.S. soldiers had committed war crimes.

“[I]n United States v. Uchiyama, a United States military commission tried the Commanding General of the Japanese 15th Area Army, his Chief of Staff, his Judicial Officer, the three members of the Japanese commission, the prosecutor and the executioner who carried out death sentences imposed by that body and confirmed by the convening authority,” Wallach wrote in the Case Western Reserve Journal of International Law in 2004.

Though defense counsel argued that the U.S. pilots, who were executed by the Japanese, had been guilty of war crimes for the firebombing deaths of hundreds of thousands of Japanese civilians, the prosecution argued — and the court agreed — that this was irrelevant.

“[A] capturing power was bound to apply certain minimum trial standards, even to crimes not committed as a POW. . . . [T]he failure of the Japanese court martial to do so resulted in substantive liability of the convening authority, the members of the court, and the prosecutor for the deaths of the American defendants caused by a unfair trial, even if the airmen had been guilty of illegally bombing civilians.”

If the Taliban become members of the Afghan government, Washington could no longer claim they’re unlawful combatants, undeserving of protection by the laws of war. As in the World War II cases, those government officials who held Taliban warriors without extending them legally mandated minimum trial standards could themselves be found guilty of war crimes.

That’s an outcome the Bush administration must surely be trying hard to avoid. And it might well influence how Washington reacts to these possible peace talks between Karzai and the Taliban.