NIAC Nonsense, the Afghan War, and Combatant Immunity

31 Pages Posted: 14 Nov 2015 Last revised: 4 Dec 2015

See all articles by Jordan J. Paust

Jordan J. Paust

University of Houston Law Center

Date Written: November 12, 2015


This essay addresses important issues concerning the nature of the ongoing Afghan war, proper criteria for prisoner of war status, and membership as the proper criterion for combatant status and combatant immunity for lawful acts of warfare. The issues were prominent during a hearing in a federal district court in Virginia in June 2015. As documented in this essay, for several reasons the Afghan armed conflict is one of an international character and membership is and must remain the sole criterion for pow and combatant status for members of armed forces of the Taliban and military units attached thereto. Proper classification of the conflict and continued use of the membership criterion will be critical for protection of U.S. soldiers and those of other countries in the future. For example, classification of an armed conflict as one that is not of an international character when it is actually international in character can pose threats of civil and criminal responsibility for soldiers who engage in detention and killing of persons on the battlefield that would be recognizably permissible during an armed conflict of an international character.

Keywords: Afghan war, Article 2, Article 3, belligerency, combatant, combatant immunity, Geneva Conventions, Hague Convention, Hamidullin, IAC, insurgency, international armed conflict, ICRC, Lieber Code, membership, NIAC, pow, privileged, Taliban

Suggested Citation

Paust, Jordan J., NIAC Nonsense, the Afghan War, and Combatant Immunity (November 12, 2015). 44 Georgia Journal of International and Comparative Law No. 2 (2016), U of Houston Law Center No. 2015-A-22, Available at SSRN:

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

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