THESIS-

New York University
Center for Global Affairs
Key Taliban Insurgency Tactics, Formal and Informal Justice Systems in Afghanistan, and
Possible Means for Taliban Accountability
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR
THE DEGREE OF MASTERS OF SCIENCE IN GLOBAL AFFAIRS
Concentration: International Relations
Thesis Advisor: Jennifer Trahan
By
Austin Schiano
New York, NY
Spring 2015
Acknowledgements:
Thomas H. Johnson -Director of the Program for Culture & Conflict Studies at Naval Post
Graduate School, Emerson Brooking- Research Associate on Defense Policy at Council on
Foreign Relations, and Jenny Kotz Bjerlestam- Rule of Law, Justice and Security Programme
Specialist at UNDP for their constant support, and expert advice. NYU CGA Professor’s Jennifer
Trahan J.D. LL.M., and Dr. Mark Galeotti for their patience and review. Fellow CGA students
Stephanie Jones and Julieta Hovhannisyan for their direction and conversation. Monica Schiano
and Tommasso Schiano, for everything else.

Afghanistan is currently faced with something more dangerous than an insurgency, or
foreign intervention, and that is uncertainty. Uncertainty exists over the success of the
centralized political structure. Uncertainty can also be found over the development of legitimate
employment opportunities for the population in the wake of conflict, and defining what power
structure will guarantee the security of the Afghan people. It is precisely by exploiting these
inadequacies, that after almost 15 years after their removal from barbaric power, the Taliban
continues to pose a legitimate threat, and perhaps an alternative for some, to the elected
Government of Afghanistan.
The First section of this research provides an introduction to Afghanistan’s ethnic
identity, and the challenges this poses to developing a centralized government. This section
discusses: A) Afghanistan’s geographic makeup and population, and B) the tribal composition of
the country, and separate tribal inclinations toward domestic governance structure.
The Second section will describe the state of conflict that has plagued the nation since the
arrival of the Afghan Communist Government in the Saur Revolution of April 1978. This
contains: A) a brief examination of the Afghan Communist Government, B) an explanation of
how the arrival of communism initiated the concept of an Islamic “jihad” and the creation of the
Mujahadeen resistance, C) an examination of international support for the Mujahedeen, D) the
destruction of Afghan infrastructure, and consequences of the Soviets 1989 withdrawal, E) the
Afghan civil war, and F) an explanation of how the destruction these conflicts created,
encouraged the infiltration of radical Islamic ideology from Saudi Arabian funded schools that
preached ultra conservative Wahabbi’sm within Pakistani Deobandi Madrassas. A clear

understanding of the above chronology is critical toward comprehending modern Afghanistan’s
weak central government, and inept agricultural practices which have led to crippling opium
production. The above factors largely account for the continued domestic base of Taliban
support.
The Third section presents an examination of the Taliban itself. This begins by
recounting: A) the Taliban’s rise to power and emergence as a firm political party in 1994
playing upon Pashtun discrimination, B) the importance of central Taliban leadership including
Mullah Omar, C) Taliban infiltration into local communities, D) Taliban ethnic and tribal
composition, E) Taliban recruiting strategies, F) Taliban diplomatic recognition, and G)
networks within the Taliban.
The Fourth section will address a brief examination of the United State’s entrance, ISAF
Coalition, NATO, and local forces, during Operation Enduring Freedom (OEF), which began in
2001. This section includes a discussion of: A) the rationale behind the United State’s invading
Afghanistan, where the Taliban was accused of harboring Al-Queda, the non-state actor viewed
as responsible for the September 11th attacks, B) the amount of time and actions taken by the US
military to bomb the Taliban regime, and C) a description of the Northern Alliance in
relationship to Afghan society.
The Fifth section will provide an examination of how Afghan insurgencies have behaved
as a fighting force, following the Soviet invasion. This includes: A) a brief examination of
Mujahedeen military behavior, B) Taliban centralization of military strength following their

establishment of power over Kabul, and C) Taliban return to asymmetric military behavior,
following the beginning of coalition activity.
The Sixth section will explore asymmetric insurgency tactics the Taliban has been
recorded as using, during Operation Enduring Freedom. These tactics include: A) the Taliban
exploiting US and NATO Rules of Engagement, encouraging them to engage in air-strikes, and
cause significant collateral damage, B) the development and expanded use of improvised
explosive devices, C) the expanded usage of suicide bombing, D) the assassination of key figures
in the Afghan government, E) the increase of attacks by the Taliban in public locations to instill
fear in the Afghan population, F) Taliban efforts to specifically attack non-government
organizations , and G) the Taliban’s efforts to disguise themselves as opposing forces, to
infiltrate and attack public or secure locations.
The Seventh section, keeping the above tactics and other violations of international law
by the Taliban in focus, will postulate future means of formal and informal judicial
accountability for the Taliban. Means of potential accountability will be listed below. A) an
examination of current Afghan leadership, and Government of Afghanistan prosecution of the
Taliban, B) efforts at large-scale national accountability, C) International Criminal Court (ICC)
prosecution, D) the evolution or modernization of the Taliban’s Sharia courts along with other
Taliban efforts toward legitimization, and E) the code of Pashtunwali, what this entails, and how
it may be applied to Taliban members through informal rulings.

The Eighth section concludes with the challenges that are still faced in Afghanistan and
impact the nation’s security, bringing into focus: A) dealing with Pakistan, specifically the
Federally Administered Tribal Areas and Baluchistan, B) Afghan economic development, C)
Afghan warlords, and D) possible Taliban negotiations. Finally, the paper ends by again
addressing the limits to Taliban prosecution, and proposing contemporary actions that could
address these challenges, in the wake of the above security concerns.
I. Ethnic Identity and Challenges to Establishing Central Governance.
The implementation of centralized governance has never proven very effective in
Afghanistan. In fact, historically, strong central governments have resulted in revolution and
rebellion by the Afghan hinterland, which makes up the vast bulk of the Afghan population. The
crisscrossing network of warlords, tribes, and familial relations throughout the country has
rendered national unity virtually unachievable. This lack of structure not only affects domestic
security, but also presents economic and institutional consequences. Contemporary research has
shown that a successful nation state will maintain a population that places national identity
before ethnic identity, and one which does not, is at significant risk for failure.1.
Afghanistan was first united under the coronation of Ahmad Shah in 1747. This initial
kingdom was deeply segmented, and comprised of multiple ethnic groups, the largest being
Pashtun, the group of the king.2 Shah’s kingdom collapsed in 1818, and the nation fell into civil
war. 3 This condition existed until 1880 when Abdur Rahman Khan, the so-called “Iron Amir”,
1 Johnson,Thomas H,“Democratic Nation Building in the Arc of Crisis”(Naval Post Graduate School, 2006), at 128.
2 Drogus, Carol Ann, Orvis, Stephen, “Introducing Comparative Politics-Concepts and Cases in Context” (CQ Press,
2009), at 52.
3 Drogus, Carol Ann, Orvis, Stephen, supra note 2, at 52.

who ruled until 1901, and united the nation’s tribes for which he is still fondly remembered.4
Khan brought the nation together with extreme brutality and following his rule Afghan national
cohesion again disintegrated. 5
Afghanistan is bordered by: China, Iran, Pakistan, Tajikistan, Turkmenistan, and
Uzbekistan.6 The largest of these shared borders is with Pakistan. This is important to
understand, that Pakistan’s inadequately governed tribal regions along the shared border,
specifically Baluchistan (29.84% Pashtun)7 and the FATA (Federally Administered Tribal Area),
factor prominently into Taliban strategy and sanctuary.8 The population of Afghanistan is
estimated at 30.55 million, life expectancy sits at 61 years of age, and GDP is $ 20.31 billion.9
Of the 30.55 million living in the country, Afghanistan is devised of primarily six tribal groups,
namely Pashtun, Hazara, Turkoman, Uzbek, Tajik, and Baluch.10 Of these tribes, it is estimated
that Pashtuns represent 42% of the population, Tajiks 27%, Hazaras 9%, Uzbek 9%, Aimak 4%,
Turkmen 3%, Baloch 2%, and others 4%.11
Tribal affiliations within Afghanistan are unique, and deserve specific attention, as each
tribe has a distinct opinion on Afghan national leadership. The patronage and clientelism
associated with tribal relationships is importantly one of the more critical sociological, political
and economic dynamics in the country. Pashtuns, the nation’s largest tribal demographic, have
traditionally held power in the state. Before the arrival of Soviet forces in the country, Pashtuns
4 Starkey, Jerome “Brutal ancestorinspires prince to be the next iron man of Afghanistan”,(The Independent,2009),
at 1.
5 Mason,Chris H, Johnson,Thomas H “All Counterinsurgency is local”, (The Atlantic, 2008), at 2.
6 “Afghanistan-CIA World Factbook”, (CIA World Factbook, last updated June 24th), at 1.
7 Puri, Luv “The Past and Future of Deobandi Islam” (Combatting Terrorism Center at West Point, 2009), at 19.
8 General McCaffrey, Barry R “After Action Report- visit NATO SHAPE Headquarters and Afghanistan”,(West
Point, 2008), at 5.
9 “World Bank Data-Afghanistan”(World Bank,2015), at 1.
10 Colonel Hanagan, Deborah “ The Changing Face of Afghanistan 2001-08”(Strategic Studies Institute-U.S. Army
War College, July 2011), at 3.
11 “Afghanistan-CIA World Factbook”, supra note 6, at 1.

were the only tribe that had asserted political or military power.12 In fact until four decades ago,
being an Afghan was indeed synonymous with being Pashtun. Pashtuns have, due to many
centuries of control, been particularly inclined to maintain their own unique tribal structures and
codes within government and institutions. This inclination toward Pashtun dominance has
created tension amongst the tribes and further inhibited the development of the state structure.13
While Pashtuns then have opted for complete control in the state, “Tajiks focus on power sharing
in the central state, and Uzbeks and Hazaras desire recognition of their identities and
mechanisms of local government.”14 These tribal divisions provide insight as to why a lack of
structure in the Afghan state is endemic, and not simply related to the Taliban.
II. The Afghan Communist Government and lasting effects for the nation
Following World War II, as the competition for power escalated between east and west,
Soviet interest in the country peaked in 1954, when the United States had entered into military
ties with Pakistan. What this action had done then, through the lens of the Cold War, was create
a need for the Soviets to provide a regional counterbalance. 15 Afghanistan’s government at the
time was comprised of a weak, Durrani Pashtun-led monarchy, whose inability to exert power
only led to further fractionalization. The Soviets had no issue working with King Zahir, but even
with this Soviet partnership the leader soon found his regime faced with a coup. This action to
usurp political power was led by the king’s cousin Daoud Khan, in 1973. King Zahir had ruled
the country for four decades, and the coup was orchestrated while the king was out of the country
12 Johnson,Thomas H “Afghanistan’s post-Taliban transition: the state of state-building after war”(Central Asian
Survey,March-June 2006),at 7.
13 Johnson,Thomas H, supra note 1, at 131.
14 Ibid, at 7.
15 Admin, “ The Soviet Occupation of Afghanistan”(PBS News Hour, October 206), at 1.

for medical treatment. Zahir had taken power as a young man following his father’s death, and
was initially guided in rule by his uncles, explaining his length as monarch.
Daoud Khan was assisted in this overthrow by the communist support-base within the
military, and also somewhat by the Peoples Democratic Party of Afghanistan (PDPA), a Soviet
supported Marxist entity. Khan’s newly formed secular regime would not achieve lasting
success. Dauod Khan would be overthrown by the communist Saur Revolution of April 28th
1978. The Saur Revolution was orchestrated by the PDPA and various elements of the Afghan
National Army. This change in allegiance was apparently due to the power-struggle that emerged
during Doud Khan’s brief leadership, as he fought to retain control against the communist
elements of his party. Ethnically the PDPA was largely composed of eastern Pashtuns, a faction
separate from those in Afghan leadership, and, once in control, would purge the previous
Durranni-Pashtun elite from power.16 The PDPA continued their rule over the newly declared
Democratic Republic of Afghanistan, aided in great part by Soviet financial and military support,
until 1992.
The PDPA and external support that came with the regime, however, was not without
domestic resistance. Afghanistan saw the development of the Mujahedeen, a loose coalition of
warlord and militia forces that were opposed to the Soviet presence. Despite this collective
opposition to the Soviets, Mujahideen factions did not desire or seek cooperation with each
other, or the development of a coalition Afghan state. Those fighting were loyal to tribes and
various warlords, and this lack of cohesion meant that, within the conflict, the Mujahedeen were
often fighting each other, something that only further complicates matters of effective state-
building.
16 Barfield, Thomas “Centralization/Decentralization in the Dynamics of Afghan History” (Cliodynamics -The
Journal of Quantitative History and Cultural Evolution, 2012), at 103.

Those Afghans fighting as Mujahedeen, however, invoked the idea of “jihad” against the
foreign forces.17 A “jihad” is defined as “a holy war waged on behalf of Islam as a religious
duty; also a personal struggle in devotion to Islam especially involving spiritual discipline”18 and
those undertaking a jihad are referred to as “Mujahid” the plural of this word being
“Mujahedeen”. The understanding of the above terms, allows for us to better comprehend the
continued instability that persists in the Middle East. This is because the invocation of a “jihad”
being a term that is rooted in Islamic principle, ensured that the Soviet resistance, was politically
and socially geared toward Islamic fighters.19
The creation and widespread acceptance of this “jihadist narrative” in Afghanistan
provides insight into the development of the Taliban. The “jihadist narrative” also helps to
explain why “non-state armed groups in today’s Afghanistan are all Islamist, fundamentalist, or
at least Islamic conservative.”20 International and external institutions heavily supported the
Mujahideen fighters during this decade of conflict, including the United States Central
Intelligence Agency (CIA), and the Pakistani Inter-Services Intelligence directorate (ISI).21 The
United States supported these efforts, specifically in response to the “Carter Doctrine” of 1979.
The Carter Doctrine proclaimed that “an attempt by any outside force to gain control of the
Persian Gulf region will be regarded as an assault on the vital interests of the United States of
America,” and was not only relevant as the United States was engaged in the Cold War, but also
as the nation was importing 43% of its necessary oil from abroad.22 Support and cooperation for
the anti Soviet Jihad also emerged from Saudi Arabia, whose King Feisal was motivated by the
17 Laub, Zachary “The Taliban in Afghanistan” (Council on Foreign Relations, 2014), at 1.
18 Definition of Jihad (Merriam WebsterDictionary) http://www.merriam-webster.com/dictionary/jihad
19 Giustozzi, Antonio “Taliban Networks in Afghanistan” (Center on Irregular Warfare & Armed Groups (CIWAG)
US Naval War College, 2011-2012), at 16.
20Ibid, at 16.
21 Ibid, at 1.
22 Terrill, Andrew W “Regional Fears of Western Primacy and the Future of U.S. Middle Eastern Basing
Policy”(Strategic Studies Institute-U.S. Army War College, December 2006), at 15.

false belief of a Zionist/Communist cooperation in the PDPA, a claim that within his rationale,
equated a Soviet threat with an Israeli threat.23 The detrimental effects of the Soviet conflict
would create a space for radical Islam to flourish. It also would also begin the destruction of the
Afghan social structure, and hinder the nation’s economic development.
The conflict had the direct effect of “the destabilization of social, political, and economic
life” within Afghanistan.24 This destabilization can be viewed through a variety of very real
consequences. Afghanistan began to see the “growth of a professional military class,” and the
“accumulation of tactical and operational military knowledge,” both of which have served to
encourage future domestic insurgency.25
The destruction of the war had proven simultaneously disastrous for the Afghan people.
The Soviets had, during the engagement, killed an estimated 1.3 million Afghans, and expelled
an additional 5.5 million.26 Individuals fled their homes, attempting to remove themselves from
the atrocities of the outside forces, and the subsequent chaos of the Mujahedeen. The Soviet
forces had additionally destroyed crops and irrigation systems, razed local villages, and
slaughtered livestock.27 Even as the Mujahedeen “kept control of 75 to 90 percent of the
territory” throughout the conflict, this was no guarantee of safety or security for the population.
Soviet weaponry destroyed the means by which to continue the critical subsistence agriculture
that the Afghan domestic economy had up until this point survived 28. The loss of these means
left the nation in peril. Afghanistan could no longer continue self-sufficiency in food production,
23 Ibid, at 15.
24 Giustozzi, Antonio, supra note 19, at 16.
26 Lieutenant Colonel Millen, Raymond A “Afghanistan Reconstituting A Collapsed State” (Strategic Studies
Institute-U.S. Army War College, April 2005), at Introduction VIII.
27Ibid, at Introduction VIII.
28 Morales, Oscar P “ The Evolution of Counterinsurgency Warfare: A Historical Overview”(Revista de Relaciones
Internacionales, Estrategia y Seguridad,2011), at 213.

due to the “2 decades of war and the drought which destroyed the irrigation system and the
agricultural sector.”29
The Afghan people were in peril, and, in this instability, began to grow increased opium.
These poppies, which are “easy to grow in arid climates and generate vastly greater profits than
other crops” began to take prominence in the Afghan economy.30 The concerns over opium
production in the country remain persistent. Afghan opium and cannabis production generated an
estimated $ 4 billion a year in 2008 nearly half of the nation’s GDP.31 This has bred massive
corruption, which only further inhibits state building efforts. It was estimated in late 2005, that
“90 percent of the police chiefs in Afghanistan are actively involved in or protecting the
narcotics industry.”32 While interpretations vary, the Taliban it appears plays a significant role in
production and distribution of Afghan opium. The production of opium helps to fund the
insurgency, with an estimated 2005 income from opium of $90- 160 million.33
Following the Soviet withdrawal from Afghanistan in 1989, fighting between the
Mujahedeen and remaining communist factions continued for an additional four years. By 1992,
Afghanistan was again in full-scale conflict. Civil war developed between rival Mujahedeen
groups, many of which had spent much of the war with the Soviets, fighting each other.34 The
conflict was in turn fueled by the remainder of external aid provided by the CIA and ISI to fight
the Soviets, along with the weaponry strewn across the nation, left by the Soviet’s hasty military
29 Colonel Hanagan, Deborah, supra note 10, at 3.
30 Lieutenant Colonel Millen, Raymond A, supra note 26, at 7.
31 General McCafferey, Barry, supra note 8, at 8.
33 Johnson,Thomas H “ Taliban adaptations and Innovations” (Small Wars and Insurgencies,2013), at 5.
34 Johnson,Thomas H, Mason,Chris M “Understanding the Taliban and Insurgency in Afghanistan”(Orbis, Winter
2007), at 72.

withdrawal.35 The civil war only caused further and increased destruction within Afghanistan.
Many cities, including Kabul, were hammered with devastating bombing. Conflict amongst rival
groups merged unto city streets. The totality of this destruction had drastic effect as well for the
social fabric of the Afghan people. The breadth and length of the successive conflict contributed
to the disestablishment of traditional tribal power structures and local leadership. Continued
conflict and social instability had the effect of wearing down the checks and balances on
communal security and order, further empowering warlords, militias, illicit non-state actors, and
creating anarchy.
The chaos that followed in the wake of both conflicts also had the unfortunate side effect
of creating conditions favorable to breeding extremism. Saudi Arabia, recognizing the instability
that existed in the region, began to invest heavily in Madrassas (religious boarding schools),
located in Pakistan.36 These schools would preach the conservative Wahabbi Islam, practiced in
Saudi Arabia. Political elements within Pakistan likewise established networks to extend the
influence of the indigenous Deobandi School of Islamic thought.
Deobandi Islam has been unique to Pakistan since the latter part of the 19th century, when
the interpretation was developed by Muslim scholars fleeing British persecution in India.
Compared to other school of Islamic thought such as Barelvi or Ahl- e Hadith, Deobandi Islam
places specific focus on religious education and proper interpretation of Sharia. Saudi Arabians
placed specific focus on funding Deobandi schools, as it was the most practiced school of Islam
throughout the Pashtun belt in Afghanistan and Pakistan.37 Deobandi Islam does exhibit some
structural similarity to the ideology of Islamic extremists, specifically the belief of “a sacred
35 Johnson,Thomas H, Mason,Chris M, supra note 34, at 72.
37 Puri, Luv, supra note 7, at 19.

right and obligation to wage jihad to protect the Muslims of any country.”38 This belief may help
to explain how Taliban leadership such as Mullah Omar who were educated in such institutions,
were later supportive of providing sanctuary for those acting toward “global jihad” notably
Osama Bin-Laden. These madrassas became an educational alternative for the displaced Afghan
refugees from the anti-Soviet Jihad, along with impoverished families, who could not afford
secular education for their children.39 The development of the Taliban, or similar Islamic
extremist groups, is also reflective of inadequate education funding, or development initiatives,
whose absence has provided the space for violent Islamic extremism. The majority of the
Taliban’s foot soldiers would ultimately develop from these militant madrassas, located in
Pakistan’s North-West Frontier Province (NWFP) and the Federally Administered Tribal Area
(FATA). Taliban leadership, likewise, would ultimately emerge from Kandahar.
III. Defining the Taliban, Rise to Power, Recruiting, Ethnicity, and Networks
The Taliban did not participate actively in the Afghan civil war. The group began to
organize and centralize power in 1994. A key moment in the Taliban’s rise, however, was not
traditionally speaking, political. Mullah Mohammed Omar, an influential religious figure at the
time, and considered the lead figure of the Taliban, in Kandahar 1994, removed and wore a
sacred garment, said to have belonged to the Prophet Mohammed atop a prominent mosque and
therefore in full public view.40 Mullah Omar was born in Uruzgan, which is located in central
Afghanistan, and is of Ghizali Pashtun ethnicity.41 Omar’s dramatic expression, in a society of
primarily illiterate, highly religious Pashtun, gained him the title Amir-ul Monineen (the Leader
41 Major Bassingthwaighte, Michael “Taking Tactics from the Taliban” (Australian Army Journal,2009), at 25.

of the Faithful). The acquisition of this title was due to the fact that the cloak, which was stored
under lock in the royal mausoleum in Kandahar, was said to only be able to be opened by a true
“King of Muslims.”42 By performing this calculated religious spectacle, along with following
classical pretense of “mullah movements” amongst Pashtuns, Omar was able to quickly rise to
Afghan power, vowing to install a traditional Islamic government.43
In September of 2006, the Taliban overthrew the current largely Tajik, Mujahideen
regime in Kabul, capturing the capital. The Taliban wove the public narrative that it was the
current regime that was responsible for the continued civil war and Tajik discrimination against
Pashtuns.44 This claim of discrimination again plays into “Pashtun ethos” which has always been
distinctly resistant to state power.45 The Taliban then were able to take power in rural
Afghanistan, as they were marketed as a source of honest and fair governance. Utilizing Taliban
leadership, the organization centralized efforts to infiltrate small communities across the nation,
and created localized bases of power. Particularly susceptible to the Taliban, were those
communities displeased with the previous Afghan government. Many of these towns had let the
Taliban into their communities as a matter of protest, but found themselves unable to control the
organization’s ability to exert strength, and growth.46 In order to amplify their control, the
Taliban took full advantage of the strength held within Pashtun social networks. These social
identities are far stronger than national identity in this part of the world, and manipulating these
ties allowed the Taliban to further draw strength toward the organization.
42 Raelin, Joseph A.‘‘The Myth of Charismatic Leaders” (TD, 2003), at 49.
43 Johnson,Thomas H, Mason,Chris M, supra note 34, at 79
45 Egnell, Robert “Winning 'Hearts and Minds? A Critical Analysis of Counter-Insurgency
Operations in Afghanistan”(Civil Wars, 2010),at 295.

To properly understand the intricacy of social ties within the Taliban, a fact which is
central to the organization’s persistence and success, it is imperative to examine ethnic
composition. The Taliban as of 2012 was estimated to be comprised 93% of Pashtun. The
remaining 7 % Taliban membership is composed of Tajiks, Uzbeks, Hazaras, Pashais, and
others.47 Pashtuns, the largest tribe within the Taliban by far, represents 42% of Afghanistan’s
demographic, in a population of 30.55 million. Pashtuns have a solid majority presence over
southern Afghanistan, extending north to Kabul, and proceeding into Pakistan, on the south and
east.48 Pashtuns also represent one of the largest ethnic groups in the world, with an estimated 25
million members worldwide, the majority of whom reside in the region.49 Pashtuns share a
common language (Pashto), and a common culture (Pashtunwali), based on pre-Islamic tribal
code.50 It is very important to make note that the code of Pashtunwali is distinct from and
predates the Taliban’s interpretation of Sharia Law and Islamic fundamentalism.51 Those who
are Pashtun then, are not automatically supporters, or followers of the Taliban or their
government. The strong cultural relationships however within patrilineal Pashtun culture, and
Pashtun presence in the Taliban, make it so that the two have become strategically related.
Pashtun tribal culture as well, is also uniquely stratified, and nowhere near homogeneous.
Within the tribe of Pashtun, there exists a variety of clans, many of which were defined as far
back as the 15th century.52 The most important clan division for this conversation exists between
the Hotaki-Ghilzai and the Durrani. While both clans have been engaged with the Taliban, the
48 Siddique, Abubakar “Taliban Strongholds: The Pashtun Question; Pashtun Areas; Swiss Federal Institute of
Technology Zurich” (Council on Foreign Relations Infographic, 2015), at 1. available at:
http://www.cfr.org/terrorist-organizations-and-networks/taliban/p35985?cid=embed-backgrounder-
the_taliban_in_afghanistan-012615#!/
50 Rezhak, Lutz “Doing Pashto Pashtunwali as the ideal of honorable behavior and tribal life among the
Pashtuns”(Afghanistan AnalystsNetwork, 2011), at 1.
51Ibid, at 2.

Hotaki-Ghilzai are the tribe of Mullah Mohammed Omar, the central figure in Taliban
leadership. Durranis have traditionally held power in Afghanistan, acting as monarchs and kings
in Kabul for the past 300 years.53 It further complicates Afghan politics then, that as the majority
of Hotaki Ghilzai Pashtuns support Mullah Omar and the Taliban, the majority of Durrani
Pashtun have supported Hamid Karzai (himself of Durrani origin), and the newly established
Afghan government.54 This clear division provides additional insight into the underlying causes
of the continued conflict that persists in Afghanistan.
Taliban recruiting strategies have seen some variance and adaptation over time. That
being said, the majority of recruitment efforts for full-time fighters have always been based on
religious and ideological means. The initial population movement of millions of Afghan
Pashtuns fleeing Soviet atrocities during the late 1980’s offered the newly created Taliban a mass
of recruits.55 The impoverished and disenfranchised youth in these border refugee camps, were
easily drawn to militant madrassas, and were quickly radicalized by emerging Taliban
commanders. As the Taliban looked to establish power in the mid 90’s following their entrance
into local communities, the organization was apt to target “loose cannons,” individuals who were
capable of projecting influence56. Once established in Afghanistan, the Taliban also continued to
find ready recruits, through the system of madrassas.57
Following the Taliban’s relative defeat, following the United States entrance into the
country in late 2001, the organization was in need of reviving membership. Around 2003, the
Taliban began a policy of incorporating criminals and other far more dangerous individuals into
53 Thomas H, Mason,Chris M, supra note 34, at 77.
54 Johnson,Thomas H “The Taliban Insurgency and an Analysis of Shabnamah (Night Letters)
“(Small Wars and Insurgencies,September 2007),at 323.

their ranks. The Afghan people noticed this shift, causing the Taliban to lose a significant level
of support, legitimacy, and political capital.58 However, it proved increasingly difficult for the
Taliban to recall former members pre- US invasion, many of whom no longer wished to live a
lifestyle of ultimate risk and sacrifice.59 The Taliban, however, countered this hesitancy in a
manner that was particularly insightful. Their manipulation of the narrative surrounding United
States offenses, air attacks particularly, were apt to draw in new recruits. As the Taliban
purposefully drew US forces into public air-strikes, the death of every civilian provided the
Taliban with a host of new young recruits who wanted to avenge their family, and fight against
the coalition. Again, in this situation, the strength of the familial ties, and ideas of revenge
(Badal), present in the code of Pashtunwali, were manipulated expertly by the Taliban.60
Important to make note, many local Taliban guerillas do not maintain their sole source of income
from the organization, and Taliban offenses are coordinated with opium harvests.61 People’s
membership in the Taliban insurgency then is usually also contingent on their status as
agricultural producers.
The majority of NATO/ISAF (North Atlantic Treaty Organization/International Security
Assistance Force) and Afghan government reports tend to portray recent Taliban recruitment
through an economic lens. The Taliban has been recorded as providing incentives for Afghan
government employees to join the organization. These incentives include “introduction to high
ranking Taliban figures or monetary rewards.” 62 The Taliban has also provided additional
monetary incentive for those who “kill high-ranking government officials or coalition soldiers”.
58 Dupee, Matthew C, Johnson, Thomas H “Analyzing the new Taliban Code of Conduct (Layeha): an assessment of
changing perspectives and strategies of the Afghan Taliban”(Central Asian Survey,2012), at 78.
61 Kilcullen, David “The Accidental Guerilla-Fighting Small Wars in the Midst of a Big One” (Oxford University
Press,2009), at 39.
62 Dupee, Matthew C, Johnson,Thomas H,supra note 58, at 78.

The overall increase of Taliban insurgency activities by 54%, according to NATO/ISAF in 2010,
suggests that recruitment efforts have remained strong, although there is continued debate as to
why. 63
From 1996-2001, during the Taliban’s time in control of Afghanistan, the regime was
only recognized as a legitimate state by three nations: Pakistan, Saudi Arabia, and the United
Arab Emirates. 64 The United Arab Emirates recognized the Taliban initially at the direction of
Pakistan in 1997; these ties were formed however before Osama Bin Laden was recognized as a
significant threat to the west, and were severed quickly following 9/11.65 Pakistan likewise
abandoned relationships with the Taliban at the beginning of the United States invasion, allowing
the US to utilize Pakistani air and military bases.66 Pakistan also however had another reason to
support the Taliban, namely concern over Kabul’s increasing relationship with New Dehli:
“Islamabad would prefer a degree of instability in Afghanistan, to a stable central government
friendly with New Dehli. ”67 Strategic Indian targets, including embassies, have also been a key
focus of Taliban attacks, which provides a renewed aspect for inter-state relations between
Pakistan and Afghanistan.
Apart from these associations, the Taliban was seen as a failed state by almost all the
remainder of the world. This was not only due to the United State’s rationale that “even if the
Taliban were not terrorists they were harboring individuals that were,” but also because of the
Taliban’s abhorrent social policies.68 The Taliban was infamous for wildly strict Islamic
65 Terrill, Andrew W, supra note 22, at 57.
66 Terrill, Andrew W, supra note 22, at 25.
67“The Taliban- The Taliban Insurgency” (Council on Foreign Relations Infographic, 2015), at 1. available at:
http://www.cfr.org/terrorist-organizations-and-networks/taliban/p35985?cid=embed-backgrounder-
the_taliban_in_afghanistan-012615#!/
68 Record, Jeffrey “Bounding the Global War on Terrorism” (Strategic Studies Institute-U.S. Army War College,
December 2003), at 12.

fundamentalist philosophy. The Taliban’s policy of “rendering women anonymous, refusing
them work or education,” along with “stoning as a solution to adultery” 69 and the prohibition of
“television, music, photographs, whistling, and kite-flying" gave them a reputation as the world’s
most repressive and isolated regime.70
Various divisions and associations also exist within the Taliban itself as an organization.
In fact the Taliban has been effectively described as “a network of networks.” 71 Southern
Taliban networks are “predominantly religious,” and are “commanded by a religious mullah or
student, who will often recruit on a tribal or sub-tribal basis.” 72 Eastern Taliban networks are
likewise “former Mujahideen and other non-clerical elements” and usually have wider political
influence, in a more strategized fashion.73 The mainstream Taliban belief-system calls for the
expulsion of westerners from Afghanistan, and the insistence that the fighters respect rules of
engagement (Laheya), along with the direction of leadership.74 Radical Taliban elements, who
are hostile to these rules of engagement, are more likely to utilizing indiscriminate terror tactics,
along with being apt toward cooperating with foreign jihadists.75 There is also very small
elements within the Taliban that display pro-Iranian sentiment, along with another faction of
that still as of yet undefined in nature, and open to negotiations.76
IV. Foreign intervention in Afghanistan and partners in conflict
75 Giustozzi, Antonio, supra note 19, at 20
76 Giustozzi, Antonio, supra note 19, at 20

The United States and coalition forces invaded Afghanistan in response to the Taliban’s
providing sanctuary for Al-Qaeda. Al-Qaeda was recognized as the perpetrators of the
September 11th 2001 terror attacks. The story of foreign intervention against the Taliban or Al-
Qaeda, however, did not exclusively start on this date. On October 15th 1999 the United Nations
Security Council passed Resolution 1267, creating the Al-Qaeda and Taliban Sanctions
Committee.77 This diplomatic action linked the two organizations through the lens of the
international community, inhibiting the funding, travel, and arms shipments, for the recognized
terrorist entities. The next step toward external hostility occurred two days before the 9/11 terror
attacks on September 9th 2001. It was on this day that Ahmad Shah Massoud, commander of the
Afghan Northern Alliance, central leader of the anti-Taliban resistance, and opposing figure to
Osama Bin Laden was assassinated. This assassination signified the Taliban’s commitment to the
protection of Bin Laden, and was viewed as the precursor to the attacks of September 11th
2001.78
Following the destruction on 9/11, President Bush signed into law on September 18th
200179 a joint resolution authorizing the use of force against those responsible in these acts of
terror. It is important to note that September 11th was not the only, but rather the culmination, of
the United State’s decision to go to war with Al-Qaeda and their Taliban supporters. The Bush
administration blamed Al-Qaeda for numerous other acts of global terror including: the first
World Trade Center bombing in 1991, the bombing of the USS Cole, and the attacks on the U.S.
embassies in Kenya and Tanzania.80 The desired purpose of the Bush administration’s military
campaign would be to overthrow the Taliban regime, which had refused to end its sanctuary for
77 Bruno, Greg “Timeline- U.S. War in Afghanistan”(Council on Foreign Relations, June 2013), at 1.
78 Ibid, at 1.
79 Ibid, at 1.

Al-Qaeda.This newly established objective included the plan to: “destroy the Taliban’s military
capability; disrupt al Qaeda operations; close down all Qaeda training camps; and kill or capture
al Qaeda terrorists.” 81 This proclamation would be the means by which the US would enter into
what would become a 13 - year protracted conflict.
On October 7th 2001, the United States, along with British support, begin bombing the
Taliban within Afghanistan, in the military campaign Operation Enduring Freedom (OEF). This
military action was followed by the establishment of the interim Karzai government in the
international and multi-stakeholder Bonn Agreement, which was endorsed by the Security
Council in Resolution 1383. Further international military support was pledged in the counter-
insurgency by: Canada, Australia, Germany, and France. This pledge was coupled by the
creation of the International Security Assistance Force (ISAF) in Security Council Resolution
1386. The ISAF was to be administered under the military direction of NATO. Once this assault
of forces was organized, the Taliban government was overthrown from power in Afghanistan,
over the span of 78 days.82 Even with continued attempts of security development and state-
building, Afghanistan has experienced continued violence and instability at the hands of the
Taliban to this day.83
The United States key military support within Afghanistan, during the first two years of
OEF was the United Islamic Front for the Salvation of Afghanistan, better known as the
“Northern Alliance.” 84 The Northern Alliance was an Afghan based multi-ethnic opposition
group, and had a desire to see the Taliban regime toppled. The Northern Alliance was
specifically composed of non-Pashtun ethnic groups including: Tajiks, Uzbeks, and Hazaras. The
82 Zabel, Sarah E “The Military Strategy of the Global Jihad” (Strategic Studies Institute-U.S. Army War College,
October 2007), at 1.
83 Bruno, Greg, supra note 77, at 1.
84 BBC News -South Asia “ Who are the Northern Alliance?” (BBC News, November 13th 2001), at 1

Northern Alliance only ever held “5% of Afghanistan, specifically the Panshir Valley” a small
area within the northeast of the nation.85 The Northern Alliance also derived significant support
from outside nations. The breadth of the Northern Alliance’s ethnic composition and external
support base also had a distinct effect on the domestic Afghan population. The Pashtun peoples
of Afghanistan, which constitute 42% of the nation’s population, viewed the Northern Alliance
itself as a foreign force.86 The perceptions of Pashtuns are particularly important, as this majority
ethnic group has also held traditional positions of leadership in the country. Following the
establishment of the interim Karzai Government in December 2001, in the wake of the Bonn
Agreement, the Northern Alliance then dissolved into various opposing political parties.
V. The Taliban as a Fighting Force
Many of the military insurgency tactics utilized by the Taliban during the 2001-2014
conflict with United States and coalition forces saw their development during the Mujahedeen
engagement with the Soviets. Faced with the overwhelming military power of the USSR, the
Mujahedeen began the critical development and implementation of an asymmetric insurgency
and strategy. The use and knowledge of these tactics has since become central to any Afghan
insurgency. Among these tactics developed by the Mujahedeen were the use of: Improvised
Explosive Devices (IED’s), ambush attacks, attacking from higher ground, targeted attacks
toward convoys, and restricting Soviet movement to established bases.87 These tactics emerged
in the so-called “guerilla phase of the jihad” and were also conducted in cooperation with the
Mujahedeen: “fighting on assigned fronts, establishing a degree of centralized control, and the
85 Ibid, at 1.
87 Major Bassingthwaighte, supra note 41, at 27.

development of an overseeing bureaucracy in Pakistan.” 88 The Mujahedeen had also begun to
take efforts at this time to increase the strength of local forces through various recruitment
techniques. Mujahedeen propaganda, along with the establishment of the inter-personal
recruitment networks, all would factor prominently into Taliban recruitment strategy.
When the Taliban emerged as an autonomous body in 1994, certain elements of the
organization briefly deviated from guerrilla tactics. This meant that the Taliban was behaving in
a manner more reminiscent of semi-regular forces. 89 The organization acted in this way, as it
was reflective of the available resources of human and financial capital they at the time
possessed, after having taken power in Kabul during 1996. After gaining control of the capital,
the Taliban utilized this centralized base, and acquired limited artillery and armor, and even a
small air force.90 This institutional behavior, however, was only reflective of those insurgent
bodies within the city. Those who were involved in rural insurgencies however, continued to
utilize insurrectionist techniques. The military organization of the Taliban then, has been
reflective then of their resources.
In late 2001 and early 2002, the Taliban was faced again with an overwhelming military
offensive. This meant that the structure had to cohesively employ asymmetric guerilla behavior.
The Taliban militarily looked to exploit the weaknesses of the Government of the Islamic
Republic of Afghanistan (GIROA), and avoid symmetrical conflict to the best of its ability.91 By
keeping means of warfare low-tech, the Taliban can ensure that almost anyone it recruits is
capable of effective combat. The highly decentralized nature of the Taliban resistance, distances

leadership from soldiers on the frontlines. Therefore Taliban command must ensure that troops
are effectively behaving as “entrepreneurs of violence.” 92
VI. Detailed Analysis of Key Taliban Tactics in OEF.
Tactic 1- Drawing United States/Coalition Forces into Collateral Damage
A guerilla insurgency must posses the ability to identify, access, and move alongside the
local population. This idea emerged in the earliest of modern guerilla theorists, Mao Zedong,
who recognized: “the relationship that should exist between the people and the troops. The
former may be likened to water the latter to the fish who inhabit it.” 93 The Taliban, which draws
a major support base from established community networks, tribal affiliation, religious
institutions, and local recruitment, has deep roots in the general population of Afghanistan. For
this reason, it is very easy for the Taliban to assimilate into local society when they choose. This
allows for them to easily enter populations and distort the lines of battlefield and conflict.
Complimentary to this success of rural control is the fact that the Taliban understands and
exploits that the United States, NATO, otherwise modern military forces, will undergo
tremendous scrutiny for civilian death in offensive campaigns.94 External forces are further
inhibited by their own institutional need to comply with international law or Roles of
Engagement (ROE’s), which further affects their ability to effectively neutralize all security
threats in the insurgency.95 The Taliban has deliberately provoked air strikes and collateral
92Giustozzi, Antonio,supra note 19, at 14.
93 Zedong, Mao “On Guerilla Warfare”(U.S. Marine Corps, 1989), at 93.
94 “Afghanistan:No justice for thousands ofcivilians killed in US/NATO operations”(Amnesty International,
August 11th 2014), at 1.

damage in public areas: “Civilian deaths from airstrikes act as a recruiting tool for the Taliban
and risk fatally undermining the international effort to provide basic security to the people of
Afghanistan.” 96 While this endangers the lives of Afghan civilians, it more importantly creates
the image of cruel and apathetic counter-insurgents, with the Taliban then able to portray the
narrative of “fighting off the invader.” 97 Events such as the 2002 bombing of an Afghan
wedding party in the village of Karkarak that left 30 dead in 2002, or similar mistakes in Khost
and Oruzgan early in the war, proved disastrous for the United State’s legitimacy with the local
population.98
A full understanding of the Taliban’s methodology behind this tactic however, requires
an additional level of understanding of Pashtun culture. The Taliban recognized that under the
traditional code of pre-Islamic Pashtun law Pashtunwali (discussed further below), every Pashtun
civilian death incurs an obligation for revenge, known as “Badal.” 99 Counter-insurgent forces
entering Afghanistan in 2001had an entirely inadequate knowledge of these cultural intricacies.
The Taliban utilizes these civilian deaths also as a means of recruitment. They do so by drawing
enraged local citizens, in the wake of the attack, to their cause and organization. For this reason,
such attacks by US and NATO forces proved hugely beneficial to the Taliban both structurally
and in developing propaganda.
96 “Afghanistan:Civilian DeathsFromAirstrikes-Airstrikes Cause Public Backlash, Undermine Protection Efforts”(Human
Rights Watch, September 9th 2008), at 1.
97 Egnell, Robert, supra note 45, at 292.
98 Egnel, Mathew, Harding, Luke “ US Bomb Blunder Kills 30 at Afghan Wedding” (The Guardian, July 1st 2002),
at 1.

This sort of concern over US and coalition actions toward civilians became so serious
that in 2009 Afghan citizens demanded Karzai’s resignation.100 This counter-insurgent behavior
is beneficial for the Taliban. Civilian death and collateral damage simultaneously encourage
extremism, which draws Taliban recruits. The physical and material destruction also turns the
population against US and coalition forces, which strengthens the Taliban’s propaganda
campaign. Importantly, it also delegitimizes the newly established Afghan government. General
Stanley MacChrystal recognized the danger of civilian death in Afghanistan, having made a
statement in 2009 that “we run the risk of strategic defeat by pursuing tactical wins that cause
civilian casualties or unnecessary collateral damage”.101 General MacChrystal’s assessment led
to the US forces further constraining ROE, and this balance between defeating the insurgency
and keeping civilians safe has been a persistent concern throughout the Afghan conflict.
Tactic 2- The Use of Improvised Explosive Devices (IEDs)
IEDs have proven to be one of the most effective, deadly, and frequently utilized
measures of asymmetric warfare in the Afghan conflict.102 The use of this technology, like many
of the Taliban’s tactics, saw its development during the Mujahideen insurgency. The Mujahideen
used IEDs markedly against Soviet forces “in the 1980s, mines were ready-made in Western,
Chinese, and other factories, while after 2001 the Taliban had to manufacture IEDs
themselves.”103 As the global prohibition against such weaponry became accepted, as seen in the
1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
100 Jalali,Amin “Afghans protest civilian deaths in foreign raid”(Reuters, December 30th 2009), at 1.
101 Brand, Mathew C “ General McChrystal’s Strategic Assessment-Evaluating the Operating Environment
in Afghanistan in the Summer of 2009” (Air Force Research Institute,July 2011), at 1-2.
102 Major Bassingthwaighte, supra note 41, at 28.
103 Giustozzi, Antonio, supra note 19,at 35.

Personnel Mines and on their Destruction, which currently has received 162 national
ratifications, IEDs and landmines, became more difficult to access. This meant that the Taliban
now was forced to manufacture this technology by their own means.104
By putting IEDs on the roadways where United States and coalition forces operate, IEDs
have proven to be a massive concern for both military and civilian populations. IED use has been
both calculated and indiscriminate, and the bombs can be detonated by either pressure plate, or
remote control and command wire.105 The initiation of the bomb then its reflective of its purpose,
with pressure plates being more adept for unplanned attacks, and remotely detonated explosions,
used for strategic offensives.
The major challenge surrounding IEDs has been to find those who are implementing
them. The Taliban has taken to waiting until the cover of darkness, measures of stealth, or using
children for IED placement, in order to avoid counter-insurgent snipers.106 Even with the
challenges faced by the Taliban implementing the weaponry, IEDs have wreaked havoc on
American armed forces. As of early 2013, it was estimated that during Operation Enduring
Freedom (OEF) and Operation Iraqi Freedom (OIF), 2,550 service-men were killed by IEDs, of
6,840 total fatalities.107 This exceptionally high rate of death is crucial, specifically as we
remember that the US has taken massive efforts and significant capital to infiltrate IED
networks, and “drone surveillance became a major concern for the IED-laying teams.” 108 Even
with these counter-measures considered, IEDs have proven to be of terrible success for the
Taliban.
104 “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and
on their Destruction, 18 September 1997”(ICRC, 2015), at 1.
105 Major Bassingthwaighte, supra note 41, at 28
106 Leake, Christopher “Taliban make children plant IEDs to thwart Army snipers” (Daily Mail, February 6th 2010),
at 1.
107 Jean-Louis, Magda,Fetterhoff, Whitney, Hadar, Mary “Faces of the Fallen” (Washington Post,February 2013),
at 1.
108 Giustozzi, Antonio, supra note 19,at 35.

Tactic 3- The Use of Suicide Bombing
The use of suicide bombing is a powerful tool, as it allows for the location of the
insurgency to in no way be constricted unto a traditional battlefield. The strength of a suicide
bomber is that their attack can easily be executed in a public space. By militarily behaving in this
way, the insurgent can bring the carnage of a battlefield anywhere the aggressor chooses. Suicide
bombing is also a tool of psychological warfare. Suicide bombing makes war ever-present “the
ultimate ‘purpose of the suicide attacks [is] not to terrorize the population, but to show the
Taliban’s commitment and determination in their struggle and to raise questions about the
government’s capacity to protect average Afghans.” 109 Indeed there is even recorded dispute
over the use of suicide bombing within the Taliban leadership, as Mullah Omar himself
expressed direct concern that the act may generate too many civilian causalities to be
beneficial.110
Suicide bombing creates hostility amongst the counter-insurgency, amplifying their
suspicion toward the population. This prospect of bombing may lead to increased inspection of
homes, an act which is particularly poorly received amongst Islamic culture, and further divides
the counter-insurgent and local residents. Suicide bombing is essentially of limitless scope,
outside of warfare it exists as a global trend and has been used in: the September 11th attacks,
Iraq, Egypt, London, Bangladesh, Tunisia, Saudi Arabia, Thailand, Pakistan, Yemen, India,
Isreal, Iran, and many other nations. 111
109 Johnson,Thomas H, supra note 33,at 12.
111 Zuhur, Sherifa “A Hundred Osamas: Islamist Threats and the Future of Counterinsurgency”(Strategic Studies
Institute-U.S. Army War College, December 2005), at 2.

Suicide bombing in Afghanistan has largely been viewed as an “act of desperation” by
the Taliban, specifically in a culture that has shown “cultural aversion to suicide.”112 The practice
as it came to be known in Afghanistan, seems to have emerged in Pakistan, amongst Taliban
networks within the country. Women and children have developed into particularly effective
agents for suicide bombing. While traditionally regarded as a taboo practice, the use of female
suicide bombers has proven successful, as women “typically attract little scrutiny from security
personnel” and can therefore more easily detonate the explosive.113
Children are uniquely vulnerable to utilization as suicide bombers, in that while they also
have the additional benefit of not attracting attention, the Taliban also has a ready supply of
youth whom they can solicit to the cause. The Taliban has been able to use suicide bombing in
coordination with our first tactic, namely the “drawing of United States and Coalition forces into
Collateral Damage.” When counterinsurgent forces kill a family member, the youths left behind
can often feel a need to avenge the death. This is of course not only strictly limited to collateral
damage, but also the causalities observed in traditional conflict. As United States and NATO
forces had sharpened their efforts to avoid collateral damage within the conflict, the Taliban
could also still of course draw upon the ability to recruit a steady stream of radicalized youth
from Pakistani madrassas.
In order to further compensate for added measures of security, the Taliban has been
recorded as using detonable bombs hidden beneath turbans, known in Afghan as Lungees. These
smaller bombs can be carried without displaying the classical signs of a suicide bomb vest, and
the “intense cultural sensitivity regarding Afghan headdresses” makes it so that they are very
112 Witte, Griffe “Suicide Bombers kill Dozens in Afghanistan” (the Washington Post,January 17th 2006), at 1.

difficult to detect.114 This increased accessibility and reduced detection makes it so that turban-
laden bombs can be carried by a male, and used for targeted assassination. On July 27th 2011, a
suicide bomber killed the mayor of Kandahar City, Ghulam Haidar Hamidi, by locking him in a
bear-hug and detonating the device. In response, President Karzai recognized the danger of
bombs hidden within traditional headdress, and asked “clerics to launch a public information
campaign to convince militants not to use turbans and other religious attire to carry out suicide
bombings.”115 The Taliban’s clear exploitation of religious, social, cultural, and political norms
shows tremendous capacity for adaptation and military development.
Suicide bombing, the majority of which is perpetrated by young children, also finds its
place in the Taliban’s strategic operation in another manner. By focusing counter-insurgent
attention on suicide bombing, the Taliban is distracting these forces from the actual structure and
strength of their organization. They are forcing the opposing side to waste resources tracking
these minor threats, while: “The Taliban has a virtually infinite number of guerrilla recruits
pouring out of the Deobandi madrassas and growing up in the Pashtun Afghan refugee camps in
northern Pakistan. It could sustain casualties of 10,000 or more guerrillas a year for twenty years
without any operational impact.”116 The strength then of suicide bombing is that it is effective,
deadly, and does not require technical expertise to deploy. Suicide bombing perpetuates the
omnipresence of the insurgency. The Taliban makes mention of suicide bombings in the 2010
document that outlines their rules of engagement known as the “Laheya,” illustrating the
importance of suicide bombing to the strength of the Taliban.
In regards to Tactics 2 and 3, the use of IEDs and Suicide Bombing were not practices
utilized as extensively by the Taliban insurgency during the first four years of the conflict with US

and coalition forces. Recognizing the need for a renewed assault against counter-insurgents in
Afghanistan, “in the fall of 2005 a delegation of Iraqi insurgent leaders traveled to the Pakistan
Federally Administered Tribal Area to meet with Afghan Taliban leaders.” 117 It was at this meeting
that the Taliban received guidance to adopt methods that had been met with success in Iraq,
“transferring the latest IED technology and suicide bomber tactics they had learned in the Iraqi
resistance.”118
Following 2005, US forces had reported that the use of sophisticated IEDs
recognizably increased near major US bases and supply routes.119
In regards to suicide bombing, a
clear trend of increase has also emerged:
“in 2005 there were 25 recorded suicide attacks, and by 2006 this number had increased
by over 500%, soaring to 139 events in 2006.
38
In 2007 there 160 suicide attacks, and the
trend remained elevated with 146, 180, and 140 attacks in the years 2008–2010.”120
This proves the Taliban has been extraordinarily apt to utilize and develop military methods from
other regional conflicts. As suicide attacks and IEDs continue to threaten the security of the
Afghan state, a concept of these asymmetric features origins, is important to understanding the
Taliban insurgency.
Tactic 4- Targeted Assassination of leadership
As the United States recognized the dangers posed by indiscriminate fire on Afghan
populations, they took efforts to no longer utilize this form of military operation. This led to the
use of targeted assassination, including drone strikes or precision weaponry against Taliban
leadership.121 The Taliban again recognized this change of operations, and adopted the strategy to
119 Crisafulli, John R , Dyke, John R, “ UnconventionalCounter-Insurgency in Afghanistan” (Naval Post Graduate
School, June 2006), at 3.

be compatible with their own resources. Utilizing accessible technology such as suicide bombs,
the Taliban was able to effectively identify and target tribal elders, religious leaders, and shura
members.122 Assassinations were particularly prolific in Kandahar, where in August of 2010 a
local newspaper, Surghar Daily, had reported that “13 districts of Kandahar Province had seen
515 local leaders assassinated since 2002.”123Amongst these assassinations, religious leaders have
been the targets of 39% of assassinations in Kandahar City, along with 21% of assassinations
being government officials.124 By assassinating these individuals, the Taliban wear away at the
traditional fabric of Afghan society, making social and political reconstruction, at tribal or
governmental levels, increasingly difficult.
Tactic 5 –The Use of Spectacular Attacks
The Taliban understand the psychological power perpetuated by unforeseen military
offensive operations. These so-called “spectacular attacks” grab the attention of the media, while
also sending the message that no Afghan is safe from the Taliban’s grasp. Locations where these
attacks were perpetuated include hotels, banks, embassies, Afghan government offices, and public
areas. A compiled list of attacks in select cities shows that spectacular attacks have left at least:
(in 2008) 73 killed and 156 injured, (in 2009) 45 recorded deaths with 120 injured, (in 2010) 12
killed and dozens injured, (in 2011) 128 killed and 197 injured, and (in 2012) 14 killed.125 While
these figures may not be all encompassing, they are illustrative of the severity for complex
Taliban attacks, often utilizing multiple insurgents, suicide bombers, and IEDs.126

Apart from causing fear within the Afghan population concerning the power of the
Taliban, these attacks have an additional objective. This is to hinder the progress of the new
government and state, and intimidate those organizations working toward its development.
Concerning Non-Governmental Organizations (NGOs) specifically, the Taliban has made it so
that “aid and humanitarian workers [are prohibited] from gaining access to beneficiaries and
promulgating urgently needed reconstruction and humanitarian activities.”127 Organization such
as Medicines Sans Frontiers (Doctors Without Borders), CARE, and Mercy Corps, have all been
forced at times to leave certain regions of Afghanistan, particularly in southeastern and eastern
regions of the country, due to concerns over adequate security conditions. 128
This violence toward NGO’s and development efforts inhibits the betterment of the lives
of Afghan civilians. The frequency of these attacks increases the public’s “disenchantment of
policy objectives” emerging from Kabul. 129 This subsequent malaise with the policies of the
Afghan government is critical to the Taliban’s continued struggle for legitimacy. In order to
assure the continued presence of these “spectacular attacks,” specifically with a focus on the
importance of attacking NGOs, the Taliban has issued a fatwa ordering the death of infidels and
their associates that are fostering foreign occupation.” 130 The Taliban has used these coordinated
surprise attacks to keep the Afghan population in fear, challenging the ability of the government
to provide security for its people, and limiting both domestic and internationally sponsored
development efforts.
127 Johnson,Thomas H, supra note 1, at105.

Tactic 6 - The Taliban Disguising Themselves as Other Forces
Finally, though not as prominent, the Taliban have been recorded utilizing the disguise of
Afghan National Security Forces (ANSF) in order to infiltrate secure locations.131 This allows
the Taliban to perpetrate and plan attacks remaining unknown, provides potential avenues for
espionage, all the while also decreasing people’s faith in the legitimacy of the Afghan
government. On August 1st 2011, authorities led by the Afghan National Police Force uncovered
a large uniform making factory in the Parwane Du area of Kabul, having found “222 magazine
holsters, garments, and materials used in making military uniforms, eight sewing machines, and
other production materials.”132 Afghan authorities stated that those in charge of operating the
uniform-making facility were insurgents aligned with the Taliban.
The Taliban utilizes these uniforms to help the organization conduct complex urban
assaults. Such recorded Taliban incidents while wearing ANA uniforms include: suicide bombers
in Kabul near the defense ministry in April 2011, attacks on the Kabul bank in Jalalabad in
February of April 2011, raids on government buildings in Khost and Gardez, and targeting of
NATO bases in Bagram and Jalalabad. 133 The Taliban has even been recorded as going so far as
to falsify Afghan military credentials, allowing entry for a suicide bomber past several layers of
security, in the Afghan Ministry of Defense in Kabul. Among those injured in the attack were the
bodyguard of the Defense Minister and the secretary of the Army Chief of Staff.134 This again
reiterates the Taliban’s important message to the Afghan people and government that they can
and will bring the violence of the insurgency anywhere they choose. Surprisingly, also in Khost,
Taliban members have even been killed wearing United States uniforms, a shocking and
132 Dupee, Matt “Afghan forces uncoverclandestine ‘military uniform-making factory” (Threat Matrix- A Blog of
the Long War Journal, August 3rd 2011), at 1.
133 Ibid, at 1.
134 Ibid, at 1

controversial addition to this strategy.135 The Taliban has also been proactive in the use of these
uniforms for securing drug smuggling.136 This sort of drug smuggling operation, highlights
another critical development in the Taliban’s criminal enterprise, and further inhibits the
development for domestic Afghan security.
VII- Formal and Informal Judicial means for Taliban Accountability.
The question one must ask given the Taliban’s organizational methods, and asymmetric
military operations, is how can the group be brought unto accountability? In the current year,
2015, Afghanistan stands under the leadership of Ashraf Ghani, the winner of a 2014 election in
the first transition of governmental leadership since Hamid Karzai in 2001, and perhaps the first
peaceful transition of power in the nation’s modern history. 137 The election however was still
populated with charges of fraud and threats of boycott by the opposition Abudullah Abdullah,
with whom Ghani has now established a coalition government. As one of the largest hindrances to
the removal of the Taliban is government inefficiency and corruption, many challenges will face
President Ghani in his efforts to continue the development of the nation’s government. The
political development of Afghanistan is crucial for the success of the state. The government must
address the nations weak judiciary and incapacity to enforce court rulings. It is from this lack of
rule of law, that the Taliban is able to ascertain legitimacy.
135 Dupee, Matt, supra note 132, at 1.
137 Rasmussen, Sune E “Afghan president Ashraf Ghani inaugurated after bitter campaign” (The Guardian,
September 29th 2014), at 1.

Means of Accountability 1- Criminal Prosecution of the Taliban in Afghan Courts
A formalized Afghan court system, prior to the judiciary established in the December
2001 Bonn Conference and emergency convening of Loya Jirga’s “grand councils” and the
domestic follow-up to Bonn that sought to build Afghan institutions, was almost non-existent.
Indeed, prior to this agreement, the Afghan government was unable to maintain any domestic
legitimacy amongst people, and could not in even the smallest sense distribute socio-economic
resources.138 Justice was not enforced in a distinctly codified manner:
“The contrast between the requirements to be met by Afghanistan’s legal system under
the provisions of the Bonn Agreement and the legal reality as it pertains in the country
can only be described as dramatic: whereas the provisions of the 1964 Constitution and
Afghanistan’s international legal obligations can be ascertained without any difficulty,
the same does not apply to the existing laws and regulations.”139
Those seeking to build Afghan institutions then, were faced with creating laws where no such law
previously existed. In the absence of a strong centralized judiciary, it is understandable that an
attempt in Afghanistan to enforce secular law would be extremely difficult as the action would
depart from “customary and/or particular interpretations of Islamic law.”140 The multiplicity of
informal justice systems that are present in Afghanistan are as much indicative of a lack of
development, as inefficient political resources. Italy was initially tasked with the project of
rebuilding the Afghan court system, coupled with assistance from the United States who helped to
renovate judicial facilities, train legal professionals, and disseminate materials that contained
Afghanistan’s new laws and constitution.141 While the court system has seen growth in the 13
years since its inception, it still is not seen as viable or effective with the majority of Afghan
138 Millen, Raymond A, supra note 26, at 1.
139 Lau, Martin “Afghanistan’s Legal System and its Compatibility with International Human Rights Standards”
(International Comission of Jurists, 2002), at 5.
140 Ibid, at 7.

civilians. Concerns have been expressed over the competency of judges, many of whom admit that
they still have limited knowledge of the Pashtun language. 142
Human Rights Watch has condemned the Afghan police on the prevalence of torture,
summary executions, and forcible disappearances reported in the nation.143 Despite a 2013
governmental investigation into these matters, not one individual within the Afghan police was
prosecuted. This is regrettable, as a corrupt police force is reflective of weak governmental
institutions. Within the Afghan police’s prosecution of the Taliban, the ANP has been accused of a
“take no prisoners policy toward captured Taliban fighters, blaming government policy and
corruption for the fact that the released detainees were returning to the fight.” 144
In regard to these reports of inadequate prosecution, Afghanistan’s prison system is also
increasingly flawed. Institutions such as the Parwan detention center have been transferred from
American to Afghan control in 2013, but still “even the court’s top judges and attorneys say they
remain dependent on foreign assistance to operate.”145 Along with this reliance on foreign
intervention, the prison has also been accused of not having granted inmates due process, and
maintaining practices such as indefinite detention. The evidence that has emerged against many
of these prisoners said to be Taliban has also been critiqued, as United States military forces
have collected it in a manner viewed by many Afghan judges and civilians as inadequate or
obtrusive.146 This concern over improper evidence collection however should cease, now that
United States forces have left the country.
139 Azam, Ahmed “Taliban Justice Gains Favor as Official Afghan Courts Fail” (New York Times, January 31st
2015), at 1.
143 Human Rights Watch “World Report 2015-Afghanistan”(Human Rights Watch,2015), at 1.
144Ibid, at 1.
145 Sieff, Kevin “Strong American Role still exists at Afghan Controlled Prison”(the Washington Post,March 29th
2013), at 1.
146Ibid, at 1.

A July 2003 report by Amnesty International outlines many of the inadequacies faced by
the Afghan prison system. Serious inquiry in these prisons has been raised, specifically
concerning: adequate food, sleeping quarters, degrading treatment and torture, sanitation, and
political repression. Afghanistan’s prison system was in need of full-reform in 2003, following
its change of institutional housing, moving from Afghanistan’s Ministry of the Interior to
Afghanistan’s Ministry of Justice.147 In 2003, some of the prisons maintained separate holding
blocks for those suspected of being members of the Taliban or Al-Queda. The number of the
individuals who stood accused of this crime in 2003, within only a single Afghan prison, were
upwards of 1,000.148
In 2003 there was also much critique over prisons being operated by Afghanistan’s
National Security Directorate (NSD), the nations own intelligence service. NSD’s prisons, of
which there were two, both are listed in the report as very secretive, disregarding of human
rights, and said to contain only those affiliated with the Taliban and Al-Queda.149 The United
States Department of State Bureau of International Narcotics and Law Enforcement Affairs has
since established the Corrections System Support Program (CSSP) stationed in Kabul, and has
been actively working with Afghan infrastructure over the past decade, in an effort to build up
prison capacity in eight of the nations provinces.150 In regards to the modern court system of
Afghanistan however, a prolific conversation has emerged in recent years regarding their
inefficiency, and we can only presume that this assertion has definite affect on the Afghan prison
system.
147 Amnesty International “Afghanistan Crumbling prison systemdesperately in need of repair” (Amnesty
International, July 2003), at 6.
148Ibid, at 9.
149Ibid, at 40.
150 United States Department of State “Corrections Programs in Afghanistan”(United States Department of State-
Bureau of International Narcotics and Law Enforcement Affairs, May 4th 2012),at 1.

Means of Accountability 2- Efforts at large-scale National Accountability
Following the removal of the Taliban from power, initial plans for a system of large scale
international accountability within Afghanistan were quite promising. During June of 2002,
under Article 6 of the Bonn Conference, the Afghan government established the Afghan
Independent Human Rights Commission (AIHRC), with the mission to “undertake national
consultations and propose a national strategy for transitional justice and for addressing the
abuses of the past.”151 The report that emerged from the creation of the AIHRC was entitled “A
Call for Justice”. The document was the result of consultations with over 6,000 Afghans,
accepted by President Karzai in 2005.
The consultation surveyed 32 of Afghanistan’s 34 provinces, along with refugee
populations in Iran and Pakistan, in an effort to be representative.152 Many individuals engaged in
the consultation had claimed that the Karzai government has actively participated in the protection
of prominent war criminals, and were adamant that many of these persons remained in positions of
power.153 The report’s view of how justice should be done varied amongst Afghan citizens. The
consultation results showcased that 40% of those consulted seek criminal justice, 15%
reconciliation, 6% coordinated acts for compensation, 5% truth commissions, 26% calling for
combined efforts of the coordinated above remedies, and finally 8% of those surveyed with
unrecorded responses.154 Concerns were raised that none of these actions would be possible until
there exists general disarmament in the country.155
151 Government of Afghanistan “Peace, Reconciliation and Justice in Afghanistan: Action Plan of the Government
of the Islamic Republic of Afghanistan”(Government of the Islamic Republic of Afghanistan,June 7th 2005), at 1.
152 Afghanistan Independent Human Rights Commission “ A Call for Justice-A National Consultation on past
Human Rights Violations in Afghanistan”(Afghanistan Independent Human Rights Commission, January 25th,
2005), at 4.
153Ibid, at 12.
154Ibid, at 18.
155Ibid, at 15.

The Government of Afghanistan likewise published a document in response to the
AIHRC’s research, entitled the “Peace, Reconciliation, and Justice in Afghanistan: Action Plan of
the Government of the Islamic Republic of Afghanistan” known more colloquially as the
Transitional Justice Action Plan. The Transitional Justice Action Plan was seen as a roadmap for
addressing past human rights abuses within Afghanistan.156 Specifically of concern for the
Government in this report, were “four key areas (symbolic measures, institutional reform, truth-
seeking and documentation and reconciliation); these four areas are not alternative options, but
mutually reinforcing elements.”157 The government’s report aligns accountability with
constitutional organs including the Afghan Parliament and is supposed to be committed to
establishing accountability institutions. These supposed accountability institutions were meant to
exist in congruence with “international standards on war crimes, crimes against humanity, and
obvious violation of human rights.”158 Karzai’s approved plan, however, has remained dormant,
and during March of 2009 the plan expired, being legislatively terminated in 2010, with few of its
goals achieved, and no accountability mechanisms created.
The lack of success experienced by the Transitional Justice Action Plan is often attributed
to the 2007 “Afghan Amnesty Law,” which was passed by the Afghan Parliament and covers “all
those who were engaged in armed conflict before the formation of the Interim Administration in
Afghanistan in December 2001” and likewise extends amnesty to those current armed groups, if
they “pledge cooperation and reconciliation to the current government.”159 While President
Karzai had never officially endorsed the Amnesty, the lower house of Afghan’s parliament,
the Wolesi Jirga, which can override the president by a two-thirds majority, pursuant to
156 “Afghanistan Justice Plan Destined for OBLIVION”(IRIN, April 14th 2010), at 1.
157 Government of Afghanistan, supra note 151, at 3.
158 Government of Afghanistan, supra note 151, at 3.
159 Ilipoulos, Katherine “Afghan Amnesty Law a Setback for Peace”(Crimes of War, 2010), at 1.

Article 94 of the Afghan constitution, passed the bill.160 The Afghan Parliament could have
passed this bill in order to ensure that efforts of large-scale accountability do not occur,
perhaps to cover their own involvement, or concern over increased Taliban insurgent attacks
to avoid prosecution.
This “Amnesty Law,” however, has also come under significant international
scrutiny, with may debates emerging around the fact that such an attempt at
comprehensive amnesty is illegal under international law. Afghanistan is one of 55 states
that is party to the Convention on the Non-Applicability of Statutes of Limitations to War
Crimes and Crimes Against Humanity, which it ratified on July 22nd of 1983.161 Created
initially in response to the continued prosecution of Nazi war criminals, the Convention
bars state parties from creating legislation that provides limitations for the protection and
punishment of crimes against humanity and war crimes. Article IV of the Convention
specifically requires states to abolish all measures that impede the prosecution of the
above crimes. The Afghan Amnesty Law appears to breach these international
obligations.162
The concept of amnesty being viewed as illegal, has especially been highlighted in
specific precepts of international law. Principle 24 (a) of the UN Commission on Human
Rights “Principles For The Protection And Promotion Of Human Rights Through Action To
Combat Impunity” which states regarding amnesties that:
“Even when intended to establish conditions conducive to a peace agreement or to
foster national reconciliation, amnesty and other measures of clemency shall be
160 Ministry of Justice- The Islamic Republic of Afghanistan “Article 94-The Constitution of Afghanistan”(Ministry
of Justice- The Islamic Republic of Afghanistan,January 2004),at 1.
161 “Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against
Humanity”(ICRC), at 1.
162 Ibid, at 1.

kept within the following bounds: the perpetrators of serious crimes under
international law may not benefit from such measures until such time as the …
perpetrators have been prosecuted before a court with jurisdiction.”163
The UN Secretary General had also made mention in 2000, speaking in regard to the Special
Court for Sierra Leone, that “the UN has consistently maintained the position that amnesty
cannot be granted in respect of international crimes, such as genocide, crimes against
humanity or other serious violations of international humanitarian law.”164 Given this sort
of international opposition to amnesty for war crimes one can then hypothesize about the
possibility of an effort toward the removal of this Afghan Amnesty Law, which would then
open up the legal possibility for international measures of accountability for the nation.
Means of Accountability 3- International Criminal Court (ICC)
Afghanistan ratified the Rome Statute on February 10th 2013, and with this instrument of
accession, the newly established government opened the nation to the possibility of future ICC
prosecutions. This measure however, would only allow ICC prosecution of crimes committed
after May 1st 2013, the date which would start the ICC’s jurisdiction.165 This means that any ICC
examination would not adequately address offenses committed by the Taliban prior to 2003,
along with those committed by Soviet forces, or the Mujahedeen. This may hamper the idea of
justice for the Afghan population, for whom these previous conflicts and offenses still remain
present in the national consciousness.
Prosecution of war crimes committed in the territory of Afghanistan by the ICC is
likewise hindered by a multitude of complications. First, we have already outlined the challenges
163 Iliopoulos, Katherine, supra note 159,at 2.
164 Iliopoulos, Katherine, supra note 159,at 2.
165 International Criminal Court-The Office of the Prosecutor“Report on Preliminary Examination Activities 2013”
(International Criminal Court, November 2013), at 7.

posed by the Afghan Amnesty Law, which despite its questionable legality currently inhibits any
prosecution of war crimes in the territory of Afghanistan, apart from those of the ICC. Second,
we must remember that ICC examination could address both insurgent and counter-insurgent
offenses. The ICC would still have jurisdiction over United States offenses in Afghanistan due to
the terms of Rome Statue ratification, though the healthy suspicion of the Court the United States
maintains, means that they will undoubtedly take various efforts to ensure United States Military
forces are not prosecuted.
In September of 2002, the United States established a Bilateral Immunity Agreement
(BIA) with the Afghan government; the agreement “imposes direct legal constraints on the
Afghan government’s ability to surrender US citizens to the ICC.”166 This BIA, however, would
only pertain to those United States armed forces currently within the territory of Afghanistan. If
this BIA does not present enough of an impediment to ICC prosecution, on August 4th 2002,
President Bush signed into law the American Service-members Protection Act, better known as
the Hague Invasion Act, which “authorizes the use of military force to liberate any American or
citizen of a U.S.-allied country being held by the court, which is located in The Hague.”167 This
fact, one that has become particularly controversial as of late, is also coupled with the Bush
Administration’s May 6th 2002 statement, that despite the signature of the Rome Statute on
December 31st 2001 by U.S. War Crimes Ambassador David Scheffer, the United States “was no
longer bound by the obligations of a signatory” and does not intend to follow the legal
obligations of it’s signature.168 Former State Department Legal Advisor Harold H. Koh has more
166 Ostowar, Dieyhoun “The ICC in Afghanistan:Peace, Justice and Accountability”(Justice in Conflict, January
21st 2014), at 1.
167 Human Rights Watch “U.S.: 'Hague InvasionAct'Becomes Law” (Human Rights Watch,August 4th 2002), at 1.
168 Trahan, Jennifer “U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In
Writing”(Opinio Juris, February 27th 2013), at 1.

recently made statements in 2013 that the United States “respects the object and purpose” of the
ICC and Rome Statute.169
The ICC has been engaged in the examination of war crimes in Afghanistan since 2007,
at which point the preliminary examinations were first made public.170 In the November 2013
“Report on Preliminary Examination Activities” for the ICC, the organization outlined the
concerns particularly pertinent to the ICC in the conflict. The ICC’s inquiries include the killing
of civilians by anti-government (9,778 civilian deaths) and pro government (3,210 civilian
deaths) armed groups. Others offenses recognized as committed by anti-government armed
groups include: systematic violence against women, torture, human shields, attacks on protected
objects, abductions, use of parallel judicial structures for prosecution (which will be examined in
the next section), and child soldiers.171 The report notes that despite listed pro-government armed
forces civilian deaths “there is no reasonable basis to believe that these forces have committed
crimes against humanity in Afghanistan.”172 Pro-government armed forces have also been
accused of: torture, outrages upon personal dignity, humiliating and degrading treatment, killing
of civilians through aerial bombardments, escalation-of-force incidents and ‘night raids,’ but the
offenses have not been effectively proven.173
Examinations of war crimes committed by Afghan and other coalition forces have also
been conducted, with the former accused of torture and recruitment of children, and the latter of
also accused of torture, and air strikes that have led to civilian death. The claim against Afghan
forces on either count have not been substantiated with enough information to be credible; while
169 Trahan, Jennifer, supra note 168, at 1.
170 International Criminal Court-The Office of the Prosecutor, supra note 165, at 7.

the charges against international forces using disproportional air-strikes have not been
thoroughly proven, while claims of torture and humiliating and degrading treatment by
international forces have. 174 Keeping the above facts in mind, the potential for ICC prosecution
in Afghanistan is reliant on a massive amount of political will for prosecution and likely the
establishment of some increased level of security within Afghanistan.
Means of Accountability 4- Modernized Taliban Institutions
The Taliban remains a social and political movement in Afghanistan and Pakistan.
The organization has been integrally tied to the security and stability of the Afghan people
and the region for almost 20 years. The structure of the Taliban is as intricate as any
Afghan national institution, and exponentially more capable of extending global influence.
The United Nations and almost every domestic and international institution have
recognized the Taliban as a global threat, an entity of mass capacity. It is incomprehensible
then, in a world where the Taliban projects so much social capital and direct influence, that
they have not given thought on how to refine their institutional structure.
It is the evolution of this system of inter-related networks, which affects how the
Taliban is perceived, and the way in which the organization operates. In order to
continually achieve public support, the Taliban must provide some measure of service to
Afghan citizens. It is with the means to deliver these services that we can recognize the
development of institutions that work toward internal review and accountability.
Chronicling these efforts, the Taliban has: A) established an effective parallel court system,
B) created a formal series of rules of engagement for fighters, known as the Laheya, C)
begun to levy taxes along with properly assessing land, and D) established an ombudsman

system, to investigate and compensate for claims of improper conduct amongst members.
It is critical however, that we remind the reader Taliban administered justice should not be
viewed as a welcome answer to the security concerns of the Afghan people. These
institutions impose measures of law and accountability in a way that is unacceptable under
international standards of justice.
In regards to a parallel court system, the Taliban began to develop this institution
following their removal from power in 2001 with courts first emerging in 2003175 adapted
in coordination with the more outwardly coercive means of violence detailed above. The
Taliban stood to benefit in this endeavor, due to the fact that they had already gained
knowledge and experience in their first attempt to govern the nation from 1996-2001.
During this previous period of power, the Taliban had attempted to establish two systems
of governance. These two systems consisted of an Inner Shura, which was comprised of
Mullah Omar and Taliban leadership, along with a Central Shura, which was a bit larger,
and meant to address regular administration and foreign affairs.176 Following their period
in power, the Taliban recognized the difficulties of trying to manage a nation, and following
their removal, set out with the intent to more directly exploit that which the new
administration does poorly provide security and justice for the Afghan population.177
Taliban courts are present in most Afghan provinces, though they maintain
particular strength in the southern and eastern region of the country, known as “the
Pashtun belt.”178 These courts adjudicate cases under the Taliban’s mix of an extremist
176 Barfield, Thomas “Afghanistan:A Cultural and Political History”(Princeton University Press, 2010), at 261.
177 Swanson, Jessica L “The Shadow Emirate: The Taliban’s return to power”(Naval Post Graduate School, June
2013), introduction x.
178 Ibid, at 3.

interpretation of Sharia law and customary law.179 These courts are swift, easily accessible,
and relatively fair, standing in sharp contrast to the government mechanisms of western
inspired legal codes.180 Government court systems are seen as corrupt, many judges do not
speak Pashto nor are their fully versed in Afghan law, necessary bribes are enormous, cases
continue for excessive lengths, and lawyers incur additional cost. These inadequacies are
only further exacerbated by the fact that by contrast the government court system is seen
as illegitimate, due to the fact that they do not have the physical capacity to enforce the
limited rulings that they decide.
The parallel justice system has proven effective for addressing the most common
legal needs of Afghan citizens. Land and water disputes have become of significant
contemporary concern for Afghans, due to the complicated systems of inheritance in
Afghanistan. These provenances have become further difficult to establish due to decades
of war and instability. 181 The Taliban qazi (judge) settles these cases quickly and without
bribes, in a manner that is impartial, and the strength of the Taliban allows for the rulings
of the courts to be adequately enforced. Efforts such as this court system are seen as a way
for the Taliban to be more open and approachable for the population, along with providing
a very real public service that fuels the insurgency, and is of tangible benefit to civilians.
Accountability in these courts is also not without measure, as the Taliban has
implemented review on these judges, and replaced those who are not performing as
dictated. 182 Taliban judges in the Sangin district of Helmand for instance, were replaced
179 Johnson,Thomas H, English, Richard “Winning the War in Afghanistan: Echoes of Northern Ireland and the
IRA?” (The Brown Journal of World Affairs, Fall-Winter 2008), at 274.
180 Azam, Ahmed, supra note 139 ,at 1.
182 Swanson, Jessica L, supra note 177, at 28.

several times in 2009 for brutality.183 The Taliban has also allowed for their judges rulings
to be adapted, according to peoples reaction to the parallel court. In conjunction with this
claim, Taliban leadership has stated that if judges encounter resistance, “then the local
commanders do not have to enforce the edicts, giving local leaders the ability to rule as they see
fit.”184 Shadow courts then represent a key force of Taliban self-accountability. The Taliban
not only removes judges that they no longer see as fit, but also allows judges to personally
interpret Sharia law in the court’s verdicts. While this does not provide a guarantee that the
Taliban organization will modernize, it does highlight a means for change or regional
autonomy that was non-existent in the Taliban’s first attempt at governance.
The Taliban’s rules of engagement are outlined in a document known as the Laheya.
The Laheya was first issued by the organization in Spring 2006, with updated versions
emerging in May 2009 and May 2010. The purpose of the Laheya is for the Taliban to
maintain some level of cohesion and strategy in a developing Afghanistan, along with
maintaining efforts to engage in a public relations campaign with the population. The most
recent 2010 version of the Laheya is much longer than both previous editions, containing
14 chapters and 85 articles, stipulating the Taliban’s most recent code of conduct. 185 The
following of the Laheya by the Taliban however, is by no means cohesive. Despite
prohibitions in the document against insurgents committing “obscene battlefield atrocities”
and mutilation, proof of the Taliban committing heinous crimes such as executions of
pregnant women, cutting out eyes, or beheadings still continue.186 In response to this sort
183Williams, Micheal, “How the British presence in Sangin restored trust in government” (The Guardian, September
20th 2010), at 1.
184 Swanson,Jessica L, supra note 177, at 28.
185 Dupee, Matthew C, Johnson, Thomas H, supra note 58, at 80.
186 Ibid, at 80.

of behavior, the 2010 Laheya contains, in article 49, description that leadership is required
to regularly instruct on piety, ethics, and behavior. The Laheya also codifies rules for
treatment of prisoners, the importance of a shadow court judicial system, prohibitions to
limit intimate contact between fighters and youth, prohibiting kidnapping for ransom,
limiting corruption and bribery, prohibiting the looting of convoys for personal gain, and
perhaps most importantly for practices of accountability, the creation of a complaints
commission, a shura that investigates suspected abuse of Afghan civilians by Taliban leaders.
The Laheya, or its continued revision, will not be the sole fact that will change the Taliban’s
behavior or conduct. The document does however highlight, a significant program within
Taliban leadership to take stock and codify how the organization is perceived and operates.
This outlines the means for evolving insurgent behavior and change, which could be
incredibly significant, specifically if the Taliban continues to grow in size and strength.
Finally, and perhaps most important for the claim of Taliban accountability, has
been the organization’s establishment of a relative ombudsman system.187 This newly
developed institution, defined by the Taliban as an additional shura, includes a means by
which the Afghan population can express grievances about specific Taliban behavior,
receive compensation from the organization, and have the Taliban member who committed
the offense against the individual be punished.188
While information on this system of retribution and reimbursement is limited, it
highlights perhaps the Taliban’s most direct challenge to the Afghan state by presenting the
organization as fair, just, predictable, and reliable. These above characteristics are
distinctly lacking from any of the Afghan government’s current proceedings. Further
187 Killcullen, David, supra note 61, at 62.
188 Dupee, Matthew C, Johnson,Thomas H, supra note 58, at 78.

research would be needed to see if the Taliban’s social services are truly accessible for the
population, along with if they would grow correlatively with additional resources. The
combination of effective courts, clear rules of conduct, tax imposition, and a body to receive
and be compensated for complaints, suggests a reasonable measure of internal
accountability within the Taliban. The organization has begun to understand that if they do
not at least attempt to behave in this more regulated way, they will lose any support base
within the “hearts and minds” of the Afghan population.
Means of Accountability 5- Efforts of Pashtunwali law against the Taliban
The nation of Afghanistan was not acquainted with the idea of a proactive recognizable
central judiciary prior to late 2001. This lack of judicial structure does not however infer that the
people of Afghanistan had existed without a rule of law prior to this date. Afghanistan, as
highlighted above, is a nation integrally tied to the Pashtun people and their customs. This
culture has a unique language known as Pashto, and also a distinct set of laws, known as
Pashtunwali. The development of Pashtun culture, also predates the emergence of Islam in the 7th
century; this is very important to remember, as we look to distinguish Pashtun law from Taliban
law.189
This classic legal codification system is still very present and authoritative in
Afghanistan, being exercised and adjudicated by Pashtun elders in informal courts known as
jirgas. Pashtunwali (the way of the Pahtuns) has a particularly unique relationship to Taliban
members. The Taliban as a predominantly Pashtun movement does identify closely with Pashtun
189 Zahid, Farhan “Understanding the Taliban through the Prism of Pashtunwali Code” (Centre Francais de
Recherce sur le Renseignement, November 30th 2013), at 1.

ideals, however this does not mean the two are simply inter-changeable. Pashtun people are then
not culturally pre-disposed to automatically support the Taliban. Strict Islamic fundamentalism
and external Saudi influence have had significant impact on the Taliban’s interpretation of
Pashtun culture and law.190 Pashtunwali as it is traditionally interpreted, is defined under eight
key themes: honour of the individual and honour of groups, fighting spirit and bravery, equality
and respect for seniors, consultation and decision making, willpower and sincerity, compensation
and retaliation, generosity and hospitality, and pride and zeal.
Even though Pashtun peoples do not automatically support the Taliban, they also do not
necessarily want the newly imposed western governance of the state. This means that the
empowerment of Pashtun courts presents one of the most effective ways to create a “traditional
check against the powerful political network of rural mullahs, who have been radicalized by the
Taliban.”191 For this reason, jirgas occupy a unique space of legitimacy between the Government
of Afghanistan and the Taliban. They represent a bond between both customary and secular law.
The Government of Afghanistan and international bodies, along with the Taliban both uniquely
recognize Pashtunwali rulings as legitimate. For this reason, Pashtunwali jirgas could serve as an
effective judicial mechanism, to bring Taliban members unto meaningful accountability in future
proceedings.
While more research would need to examine the actual prosecution of the Taliban within
informal Pashtun courts some examination has been hypothesized, of how Pashtun court systems
could systematically be used against the Taliban. Such recommendations include, respecting
local Pashtun jirgas as direct vestiges of regional government. Deferring to these jirgas, when
190 Rezhak, Lutz, supra note 50,at 1.

international forces or organizations make decisions, would serve as a base to establish social
capital with locals. This would increase the perceived power of these courts, and render both
villagers around the jirga, and court officials within the jirga, less susceptible to accepting
Taliban administered justice.192 Jirgas then could serve as an intermediary between the Taliban
shadow court, and government institutions, offering the most effective solution for Afghan rural
justice in the future.
VIII-Conclusions and Challenges to Afghan Security
The government of Afghanistan will likely never achieve peace or stability so long as the
Taliban continues its assault on the government’s legitimacy. Major military action against the
Taliban would only plunge the nation into further chaos, and also require foreign military
intervention. A negotiated settlement with the Taliban may appease certain factions of the
organization, but would also express the acceptance of the Taliban in Afghan society. The
possibility of improving economic, governmental, and judicial institutions, along with tighter
border control with Pakistan, appears to be the best way to challenge the Taliban’s authority. 15
years without any means of accountability however are inexcusable, and so efforts at national
development should not forget the prerogative to hold the insurgency accountable for their
actions. The Taliban persists because they are out-governing the current government. In order
to more effectively administer bureaucracy and provide security, those who continue to be in
power must address the nation’s major inadequacies. It is only after re-establishing relative
192 Major Cathell, John H,” Human Geography in the Afghanistan-Pakistan Region: Undermining the Taliban using
Traditional Pashtun Social Structures” (Naval War College-Newport RI, May 4th 2009), at 19.

security over the state that the Afghan government can begin to consider any measure of
cohesive action against the Taliban.
How we achieve this peace then becomes the central question. United States forces are
set to remain at 9,800 throughout the year of 2015. The purpose of these troops will continue to
be the training of Afghan forces, with an anticipated full withdrawal in two years.193 Decades of
war have created a stressed relationship between the Afghan people and foreign military, and it is
for this reason that additional commitment of troops to engage in military or civilian action, only
serves to strengthen the Taliban’s narrative of “ousting the invader from Afghanistan”. All below
recommendations must be presented as initiatives conducted and led by the Afghan state.
The Afghan government must take efforts to improve border security with Pakistan. The
lack of security upon this border provides enormous strength to the Taliban, who freely traverse
into the ungoverned regions of the Federally Admitted Tribal Area (FATA) and Baluchistan.
These areas of Pakistan serve as a means for the Taliban to draw recruits from radical madrassas,
along with support and sanctuary from sympathetic populations. The Afghan government should
look to take all measures to increase border security, without extending into Pakistan
sovereignty, to avoid causing any turmoil amongst Pakistan’s citizens or government.194Another
point of concern is that Pakistan has limited to no control over these tribal areas. If possible,
efforts should be taken by Pakistan to increase capacity in these regions. Pakistani security
forces have also been complicit in Taliban sanctuary, as they have been willing to pursue Al-
193Mazzetti, Mark, Shear, Micheal D, “U.S. to Delay Pullout of Troops From Afghanistan to Aid Strikes”(New York
Times, March 24th 2015), at 1.
194 General McCafferey, Barry, supra note 8, at 7.

Queda members, but not the Taliban, whom they see as fellow Pashtuns.195 Though a change of
policy is unlikely, international pressure must be placed on this security concern.
The Taliban is able to placate domestic population with these limited services, as the
Afghan government does little to provide the country with any discernable social benefits. If the
government wants to increase the quality of life for those in the territory, they need to provide
increased sources of economic opportunity. As the economy develops, the government will be
able to strengthen institutions. With legitimate monetary growth, the government will need to
ensure that corruption is kept in check. Foreign collaboration in this regard, in the capacity of the
World Bank or IMF could be brought in as economic advisors, developing systems that would
combat corruption.
The rural institutions of Afghanistan are also in need significant overhaul. This is critical,
in order to prevent the production of opium, which is a major scourge upon all aspects of the
Afghan nation. Of Afghanistan's population, it is projected that 1.3 million Afghans are drug
users, including men, women, and children.196 The Taliban also derives significant funds from
extorting farmers, and the trafficking of opium. Afghanistan is a country where 82% of the
population lives off of subsistence farming, and in a context where opium is a reliable cash crop,
there need to be agricultural programs that instruct locals on how to engage in agricultural
production, that can create similar profits to opium.197 This sort of positive domestic and
international rural engagement would provide a means to bolster citizens support of the
government and also decrease Taliban funds.
196 Ahmed,Azam,”That other big Afghan Crisis, the Growing Army of Addicts"(NewYork Times, November 3rd
2013), at 1.
197 US Government Accountability Office “Afghanistan Development: Poverty and Major Crop Production (GAO-
10-756SP), an E-supplement to GAO-10-368”(US Government Accountability Office, 2007-2008), at 7.

Afghanistan also has the prospect for non-fuel mineral extraction, and these resources
will factor prominently into the nations economic future. Geographical estimates conducted by
the United States Geological Survey (USGS) in collaboration with the Afghanistan Geographical
Survey (AGS) have stated: “Estimates of known and undiscovered copper resources total nearly
60 million metric tons of copper. Resources of iron in known deposits are more than 2,200
million metric tons of iron ore. Twenty mineralized areas were identified that merit further study
and may contain resources amenable to rapid development.”198 The Afghan government has
already signed a $3 billion contract with the China Metallurgical Group, a state-owned mining
enterprise based in Beijing, which will work to derive resources from the Mes Aynak Copper
deposit. China has promised in return, to build schools, clinics, markets, mosques, electrical
plants, and railways in the areas around the mine, which it is projected could yield $8 billion in
profit.199 The engagement of powerful actors in Afghanistan, if conducted ethically and without
corruption, could lead to the establishment of increased national security, infrastructure, and jobs
for the population. All of these developments coupled together could serve to inhibit Taliban
recruitment.
A major challenge to the security of the Afghan state emerges from another informal
power structure. This challenge to security is not the Taliban, but rather Afghan warlords. These
‘warlords’ “emerge to play a de facto political role, despite their lack of full legitimacy.”200
Some of these individuals display a level of control over certain regions, while others command
198 United States Geological Survey, “Preliminary Assessment of Non-Fuel Mineral Resources of Afghanistan,
2007” (United States Geological Survey, 2007), at 1.
199 Bartholomew,Carolyn “Report to Congress of the United States -China Economic and Security Review
Commission”(United States- China Economic and Security Review Commission, 2007), at 217.
200 Giustozzi, Antonio “‘Good’ State vs. ‘Bad’ Warlords? A Critique of State-Building Strategies in Afghanistan”
(Crisis State Research Centre-London School of Economics, October 2004), at 5.

full militias, and visibly threaten regional security.201 Some warlords have more recently been
engaged in the 2015 democratic Afghan elections, while others remain confrontational to the
government. Further research would be needed into how to effectively address the somewhat
amorphous concern of warlords, and what efforts could be taken to supplant their power back
unto the centralized government.
In conclusion, as the Taliban continues to persist, we must also give thought to the
feasibility of Taliban negotiations. The Taliban has engaged in various rounds of informal talks
since the founding of the organization, with many claiming “the Taliban has used negotiation
more as a ploy to gain political and military advantages than as a way to settle conflicts.”202
Afghanistan’s new president Ghani has reached out to Pakistan, with the hopes of establishing a
bilateral relationship that could improve Afghanistan’s relationship with the Taliban. Despite this
diplomatic good-will, there remains no guarantee of success for these diplomatic efforts.203 China
has been called upon to mediate any possible discussions that could exist between the given
actors, but only time will tell if the necessary parties will be open to effective negotiation.
Despite the importance of the above recommendations to increase Afghan domestic
security that will be instrumental in national development, we must not forget that a measure of
accountability for abuses committed within Afghanistan is crucial. This should ultimately lead to
a “two track approach” of simultaneous justice and economic growth. As domestic
accountability mechanisms are inhibited by a lack of political will and legislative blockades, the
laws which inhibit Taliban prosecution must be removed.
201Lieutenant Colonel Millen, Raymond A, supra note 26, at 1.
202 Majidyar, Ahmed K “Negotiatingwith the Taliban:Lessons fromhistory” (American Enterprise Institute,May1st 2014),
at 1.
203 “US denies any planned talks with Afghan Taliban in Doha” (Reuters, Feb 19th 2015), at 1.

The United States Department of State Corrections System Support Program, along with
other internal and external actors supporting the Afghan judiciary and prison system, should
look to find meaningful ways to incorporate measures of public justice into the current
prosecution of Taliban members. Congressional reports stated in 2010 that the United States
understands and appreciates the United Nations definition for justice in post-conflict scenarios
which reports:
“Transitional justice comprises the full range of processes and mechanisms associated
with a society’s attempt to come to terms with a legacy of large-scale past abuses, in
order to ensure accountability, serve justice, and achieve reconciliation… including both
judicial and non-judicial activities that may variously include individual prosecutions,
reparations, truth-seeking, institutional reform, and vetting and dismissals.”204
Efforts must be taken to ensure that the Department of State gives adequate attention not only to
strengthening the Afghan prison system, but also the measures of accountability and
reconciliation that allow for civilians to meaningfully view justice being done unto the Taliban.
International efforts should be undertaken to exert pressure upon newly elected president
Ghani to remove the “Afghan Amnesty Law” from the nations political system. The removal of
this law would highlight Ghani’s commitment to end corruption, and also foster good will
amongst powerful international actors, that will be critical in Afghanistan’s future development.
This action should be conducted in coordination with reviving the initial recommendations put
forth in the Afghan International Human Rights Commission “A Call to Action” report, along
with President Karzai’s subsequent Transitional Justice Action Plan. Further examination would
be required, to see if former president Karzai’s initial plan for accountability would require
contemporary revision. Afghanistan could also be offered economic incentives, if the domestic
legislature pursues measures that would forward accountability.
204 Katzman, Kenneth, Wyler, Liana S, “Afghanistan:U.S. Rule of Law and Justice
Sector Assistance” (CongressionalResearch Service, November 9th 2010), at 4.

ICC investigation remains the most probable and effective route of accountability and
jurisdiction in Afghanistan. The Court should take all measures to persist in its actions. As
preliminary examinations have already been active for almost eight years, the ICC should pursue
the issuance of indictments against leading Taliban officials. Inversely, the release of the Central
Intelligence Agencies ‘torture report’ in 2014 may provide the international encouragement
needed to spur ICC prosecution. The public nature of the offenses listed in this report, as
committed by the United States against insurgent forces, may serve to provide concrete evidence
to encourage investigation into insurgent and counter-insurgent crimes in Afghanistan.205
The international community should utilize mechanisms such as the United Nations, that
maintain role of law programs which support Pashtun courts, and encourage them to develop
programs that encourage increased prosecution of Taliban forces. It can be anticipated that this
sort of confrontational judicial behavior, would increase the targeting of these jirga’s judges, or
local political leaders for assassination. These concerns over safety could be addressed by
increasing the public presentation of truth commissions with attaining a majority of Pashtun
elders, or by factoring the necessity to hold truth commissions, into any future Taliban
negotiations. If concerns over security become unmanageable, these proceedings could also be
symbolically conducted in the Hague. The combination of these practices would discourage the
Taliban’s use of suicide bombs or other weaponry to stop the proposed process of justice.
The integrity of Taliban self-accountability, though not without merit, is still entirely
subjective. The Talibans ‘measures of internal review’ are inadequate. Still, this does not mean
that further analysis of these matters is unwarranted. Only time will tell if the Taliban’s actions
are meaningful, or if they are simply being conducted for the purposes of achieving positive
205 Kersten, Mark “Did the Torture Report Just Open the U.S. Up to ICC Prosecution?”(Justice in Conflict,
December 10th 2014), at 1.

international recognition. Taliban mechanisms of accountability, even if expanded, are still
irrevocably flawed due to their ignorance of international legal norms, women’s rights, and
political, social, and economic freedoms.

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