 Hi, welcome to today's international law discussion. I'm Major Chris Kosninski, a military professor here at the Stockton Center for International Law at the U.S. Naval War College in Newport, Rhode Island. Today's topic is Afghanistan 2021, specifically the international legal implications following the withdrawal of U.S. forces in the fall. Now today's talk follows a workshop that we held here at the Naval War College in December. For the workshop, the Stockton Center invited approximately 25 legal experts from academia and in the field. We had experts from across the Department of Defense, judge advocates from all of the services, Department of State, NATO, the UN, the International Committee for the Right Cross, and academic leaders in the field. The workshop was held under the Chatham House non-attribution policy. So while you'll hear some of the views expressed today, we're not going to assign them to any particular participant. I should remind everyone that our guests today are speaking in their personal capacity, and so anything that they mentioned may not actually be their personal opinion, but even, and it should not be attributed to their organization. Our two guests today are Colonel Chris Ford and Professor Lori Blank. Colonel Ford is the Staff Judge Advocate for First Special Forces Command out of Fort Bragg, North Carolina. Colonel Ford was previously a military professor here at the Stockton Center, and he also taught at the U.S. Military Academy at West Point. He's written for just security and other academic journals. In addition, in previous assignments, he was a legal advisor on the joint staff, and he deployed in support of operation and during freedom Philippines. Professor Lori Blank is a clinical professor of law at Emory University, among many other positions she has there. For instance, she's also the Director of Emory's International Humanitarian Law Clinic. Professor Blank has co-authored numerous case books on the law of armed conflict. If you look her up on SSRN, you'll see that she's touched many topics under the law of armed conflict universe. Now, Professor Blank, you'd mentioned that when you're going to teach the law of armed conflict to your law students, that you often want to start with classification of conflict. Why is that the first topic that you want to address when you introduce students to the law of armed conflict? Thanks for putting this together this morning. It's great to talk about some of the interesting discussions from the workshop. We start with conflict classification because one of the most important things about the law of war is that it doesn't apply all the time. And that's actually a background issue as we think about Afghanistan and the arc of events there over the past 20 or more years. And so in order to talk about the law at all, you need to first figure out whether you're supposed to be using it in a given situation. And so we talk about conflict classification because we need to know, is there a conflict? And then we need to know what kind of conflict is it? So we know which rules from the robust body of law that is the law of war, which rules we can talk about. And Afghanistan actually is a great example for this. I use it to illustrate the sort of maneuvers of conflict classification all the time in the classroom and just to sort of set the stage for some of our conversation because the conflict classification then drives issues like use of forest detention, humanitarian assistance, a whole host of issues that were discussed and are interesting with respect to Afghanistan. The kinds of questions that come up that are highly relevant with respect to Afghanistan are, is there a conflict, obviously? When did it start? Who are the parties? What kind of conflict is it? That has changed over time in Afghanistan. What prompts a change in classification and when? Is there more than one conflict? We can identify certainly at least two, if not more conflicts that have been occurring in Afghanistan at any given time. A really tricky one, which we spent quite a bit of time talking about over the last couple of days was, how do we know when it ends? And what are the markers? Are there markers? Or is it a bit of I know it when I see it kind of thing? Which may be the case, but isn't that helpful when you're a lawyer because somebody looks to you for an actual answer and I know it when I see it. I'll call you when I know it's over. Isn't that comfortable? One of the things that's also really interesting given the scenario now post-U.S. withdrawal is can you have a conflict when you don't have any troops on the ground? Can you be a party to a conflict in that situation? Can you be in a conflict in a state but not with that state? So these are all things that come up in the context of Afghanistan. And we tend to view it as there was an international armed conflict when the U.S. invaded in the aftermath of 9-11. That then became a non-international armed conflict and we just, that's pretty simple. But there's a lot going on sort of under the surface of that analysis there. So. To be clear, I think it's not just an academic question, obviously it's also a practical question because the application of the law of armed conflict affects how we conduct operations and it affects how we hold individuals accountable for the conduct of those operations. And I think you're right, in the context of Afghanistan this became clear through the workshop that because of the nature of the conflict, the length of the conflict, the number of parties involved, the states parties, the non-state actors, all of these factors kind of come together in a confluence to create a very complex set of rules. And as you sort of highlighted, I mean there's some very broad chunks. There's an international armed conflict at the beginning. At some point it transitioned to a non-international armed conflict. And at some point in time that then fractured into multiple NIACs. And now we're in a place where it's not, we're kind of back to uncertain again, post withdrawal after the Taliban assumed a control of the government again. Yeah, and these kinds of questions also affect interoperability among the coalition. So for example, if different states in a coalition have different perspectives on what the authority to detain is in a given type of conflict, I think it's, there's a broad consensus that international armed conflict includes the authority to detain. We can find that in various treaty provisions. There is a contentious debate about whether NIAC includes the authority to detain or whether a state needs a separate explicitly stated authority. So if you have coalition partners and the conflict transitions from NIAC to NIAC, as happened in Afghanistan, some of them have to essentially do the proverbial run back home and say, excuse me, we are still detaining people. If you're gonna tell me I need an explicit authority, then you need to give me that explicit authority. Otherwise, the coalition, then you end up with some states who do the detention operations and others who don't, which also we saw many times in Afghanistan. And this will continue to be a relevant question. I mean, there's, we have talked about over the horizon operations back in Afghanistan and this could take a number of forms, right? It could take the form in which we're cooperating or with the Taliban to conduct detention operations or other kinetic operations against ISIS-K and other forces there. It could consist of us taking unilateral actions in Afghanistan, which of course, I think we'll get to and brings up a host of other questions with respect to our ability to conduct operations within Afghanistan without the consent of the government of Afghanistan. And I guess maybe it's worth kind of exploring a little more going back to your question, when does the NIAC end? Because that was really, I think, harder than a lot of the discussion here. So Kabul falls on August 15th, 2021, at that point in time, the government, the Jiroa government of Afghanistan had ceased to exist. The president had fled the country. The U.S. remained in the country along with some allied forces. What was the status of the conflict at that point in time? Given a couple other factors, primarily one being the fact that the United States hadn't engaged in combat operations with the Taliban in almost a year and a half at that point. I think January or February of 2000 was the last U.S. casualty in the war. So at that point in time, you know, what was the status? We had significant discussion about the applicability of the Tadaj criteria. Maybe that's worth commenting on, because I think there's a lot of discussion there. Yeah, I mean, I think you can add into that and let's put agreement in quotes, but some type of, whether it's at the level of agreement or not, that the Taliban would not engage U.S. forces, right? You had some tacit or possibly written down agreement of some kind that basically, we're both here, we're kind of still, but we're not actually going to fight against each other. What is that, right? What is the legal status of that with respect to saying, huh, am I still, meaning do I still consider you an adversary in an armed conflict and what authority do I have or am I essentially restarting the clock if I'm in a situation that now feels hostile? And if the Taliban has provided implicit or explicit consent for you to conduct operations from August 15th to the next week or so, how long does that consent continue? Does it have to be terminated? Did it affirmatively terminate it? What's the nature of the consent? What's the scope of the consent? Would the consent, to the extent that there is a name would that cover future operations in Afghanistan for kind of the over the horizon perspective? I think those are all very relevant questions going forward. Yeah, I mean, I think we, the conversation on this topic either revealed either, I wouldn't say a divergence of views, but I think an uncertainty that probably would require a lot more, kind of zeroing in on what, okay, let's really try to drill down on this, but there's a question when you think about the existence of a NIAC, pretty, our basic conception is the Taditch test, you need an intensity of violence and you need an organization of the parties. So for almost 20 years, certainly since the summer of 2002 when the Karzai government officially came into power, it's been axiomatic that the US and other coalition partners are partner forces in a NIAC with the government of Afghanistan against the Taliban and then assorted other insurgent groups popping up here and there, friends with the Taliban, not friends with the Taliban, et cetera. So, and there were moments when we would have statements by a US president, President Obama, by perhaps other nations' leaders, we would have statements like, oh, it's the end of combat operations in Afghanistan, but factually, it was not the end of combat operations and court said, yeah, no, that's not the end, right? We're gonna look at what's happening. So what's happening still looks like conflict, it waxes in wanes, partly due to the fighting season in Afghanistan, right? You gotta keep that kind of thing in mind just because it's winter and it's cold and snowy and roads are impassable, doesn't mean the conflict is over, over, but do we, does a NIAC end when one side factually has defeated the other side? I'm gonna leave aside, what does that mean? Factually, can we identify that? Or does it end when we slip below those thresholds of the tattage test? And we kind of had a debate about that, that are you having a steady need to assess, oh, I'm still above the threshold, I'm still above the threshold of the tattage test, good, good, whoa, I dipped below, huh, conflict might be ending, nope, back up, or is it, it's there and, even though as conflict goes towards its end, it's natural that it's going to dip below that, that's the goal of the side that's trying to win, right? And is the test even a reverse tattage test? Is that even the test? I mean, there was significant discussion about the aggregation of intensity as well, either from multiple organized armed groups on the battlefield, multiple non-state actors aggregating the totality of the violence to hit the intensity criteria, or I think aggregating geographically, so they could have various factions of ISIS throughout the globe in totality, might hit the intensity criteria of tattage. But you bring up fascinating questions specifically with respect to the nature of the conflict on the ground and the importance of, or the lack there of, the state's determination or proclamation of the status of the hostilities, and to what extent should the state be able to declare aniac exist, doesn't exist? What effect does the achievement of military objectives either actually, or at least purported achievement of objectives, what effect does that have on the actual violence on the ground? Or is it a more practical matter, an actual assessment of what's physically happening on the ground? And again, as you point out, how do you account for lulls in combat? Whether it's seasonal or whether it's just the nature of the cyclical nature of the combat, waxing and waning and intensity. It is especially in an environment like Afghanistan where it is seasonal, it is a 20 year conflict we have seen even beyond just the seasonal variations, just the kind of, almost like a natural cyclical waxing and waning. So does it go into perpetuity? Is it enough that the US declares, who's one of many partners by the way in Afghanistan, is it enough that they declare that it's over? Is it sufficient that we've achieved a particular military objective? I think all factors that are, again, the things that make Afghanistan an interesting question, an interesting case study. Yeah, and I mean, I think it's important to think about, from the operational perspective on the ground, how, you know, if you think about how you're advising a commander, what authorities, right? Loak is permissive, generally. It obviously has important rules to protect all persons in the area of the conflict, but it is quite permissive, much more permissive than peacetime, or not wartime, which may not be peacetime. But, you know, I imagine the conversation with a commander, if you say, well, we've really got them on the run, so I'm sorry, now you can't use force as a first resort, that's not a conversation that seems particularly realistic. Not realistic, not practical. And the other thing is you can't, we need some predictability on the battlefield, right? I mean, we can't come in and out of armed conflict, like a binary kind of light switch. It is difficult to conduct operations in the best circumstances, but if you were to add to that a complexity of kind of coming in and out of NIAC constantly and having to provide that kind of advice to the commanders, but then all of these soldiers on the battlefield, it's a virtual impossibility if you're talking about something, it's switching on and off, on and off, on and off. And it's also practically unreasonable to suggest that as you are, achieving more and more success against your adversary, so most likely your adversary is not able to bring the same intensity of violence against you, your adversary is not as organized because one of your objectives is to disorganize them to scatter them so they can't conduct operations. At that point, that's when you kind of wanna achieve your final, let's call it blow for lack of a better term, right? You, to suggest that all of a sudden, oh, we're way below the tautage level, now you've just gotta finish things off with, you know, what we would call a law enforcement, not actually sending in your police, but right. That seems operationally illogical. One of the other things though about Afghanistan, I think that's interesting here, is we may have, we had a conflict with the Taliban at the same time there was parallel conflict or conflicts going on with Al Qaeda and associated forces, ISIS-K now at various times there's been spillover into Northwest Pakistan, whether it's against the Al-Hakani network, against the Pakistani Taliban, against on and on. And so we also have to bring into the mix there that even if we might justifiably assess that, huh, the conflict with the Taliban is winding down or perhaps there is no longer low-act authority in that context, either because we've tacitly agreed we're not fighting each other or any number of things, there's still conflict in Afghanistan against other entities and what does that mean in terms of authorities, posture, et cetera. And I think the way the discussion flowed with respect to that question was two-fold. One was, what are the implications of us supporting the Taliban with respect to those organizations? And then the second kind of broad stream was what if we do things unilaterally? And so I think in the context of support to the Taliban and the questions that came up were the Article of the State responsibility with respect to either assisting in unlawful acts or controlling the Taliban to the point where we've assumed some sort of responsibility for their actions. And I think other discussions, if I recall, came up in the context of detention operations specifically and either the conduct of our unilateral detention operations or I think more practically the us assisting the Taliban in their conduct of detention operations. Yeah, and the other piece of that also that came up a little bit was what is the obligation to ensure respect in Common Article One of the Geneva Conventions? And there's a couple of interesting pieces there. There's been a debate going on. What does it mean to ensure respect? I mean, clearly I think everybody agrees that it means you make sure your own forces, that your own state actors, whether not just military, that you yourself conduct yourself in accordance with the obligations of the Geneva Convention. That's not controversial, but that's respect. Well, what is insure respect? Do you have to go out and kind of make sure, like, yeah, you did pretty well, but you messed up here, right? Do you have to go? What kind of actions does one state have to take with respect to other actors? And with Afghanistan, right, that brings up interesting questions. What is that obligation with respect to your co-belligerence? What is that obligation with respect to a non-state force you're partnering with? Or perhaps talking to something less than partnering with assisting covertly, right? Yeah, and I don't think there's any agreement on what that is. Yeah, and I mean, the ICRC support-based approach came up in discussion here, and the theory being that at some point a state assumes co-belligency in an armed conflict based upon their support to an actor in an armed conflict. A lot of discussion on that, some, I think, pretty good discussion with respect to the origins of that theory in international law to the extent that there isn't any, the kind of practical application of that, what it means for Afghanistan, whether or not it applies at all by the ICRC's own criteria, because I think armed conflict is a predicate factor to the application of that test. But all fascinating questions, and it's just not clear. And maybe it's just very back-dependent, kind of going forward with respect to what the conflict looks like on the ground, and the nature of the support that the US and other countries are providing to the Taliban, to the extent that they do, with respect to their operations. And then, again, the attendant questions of what responsibility do states assume for that support? Is it enough, again, you mentioned that the application of Common Article One, that's a well-known, kind of ongoing discussion, or debate, if you will, particularly between the ICRC and the United States and other countries. Is it enough that the US provides support to the Taliban with assurances from the Taliban that certain things will happen? Is there an obligation on the part of the US to do something more than just receive assurances, some sort of positive monitoring requirement or something like that? Again, a well-known debate that played out during the course of the workshop was pretty evident from the participants there, and it was, I think, a lot of divergent viewpoints on the issue. Yeah, including, it's a NIAC. Whatever it is in Afghanistan is a NIAC, unless perhaps there is direct engagement between the US and the Taliban. And there was a lot of discussion also about whether it matters, whether anybody recognizes the Taliban as the legitimate government. There was general, although it kept popping up, every time it popped up, there was general agreement that recognition of legitimate government is essentially irrelevant to the application of both our conflict classification analysis and LOAC generally. Are you the effective government? Are your armed forces the armed forces of acting as the armed forces of the state? If so, and we fight against you, we're in, and NIAC, I'll say that slowly. But what's interesting, I think, with Common Article One that came up a little bit, was, wait, hold on a second. If it's a NIAC, just Common Article One, apply. Because our easy sort of quick way of thinking about things is NIAC. You take Common Article Three and you just take that and you go. And then you have customary law and other things. There's an interesting discussion. So does Common Article One only come into play when you have an international armed conflict? Or is it one of those provisions of the Geneva Conventions that applies essentially in all circumstances, peace time, because we have peace time obligations from the Geneva Conventions. So, and that's not settled, I don't think at all. I think one of the really interesting things, takeaways from the conversation over the last two days, also, as I think back on it, is 20 years ago, the events of 9-11, the beginning of the conflict in Afghanistan, really sparked an enormous amount of thinking about the law of armed conflict, about the USADB, can you use self-defense against a non-state actor? Can this, can that? I think we are now at another moment where we're gonna start to see questions that, they're not new questions, but all of a sudden they're gonna pop up as like, wow. So for example, the US pulls all forces out of Afghanistan. Is that just automatically, we're not in conflict there at all? It seems that's a pretty, like that would be the immediate answer, but it's not entirely clear. What if we, does it mean we're not in the conflict, whatever conflict we were in with ISIS-K? I don't know, if we launch another few strikes at them, I see the argument pretty clearly, no conflict is just continuing, it just looks different. I think you're right. I think that the circumstances in Afghanistan going forward are gonna be such that it highlights these long standing and known issues, but been in a way that maybe we haven't seen this clearly defined before. I mean, one of them was, it was Kimberton's discussion, was the use of force on the sovereign territory of another state without that state's consent. Does that use of force constitute an armed attack on that state? If we were to use force, for example, in Afghanistan against ISIS-K, but without the consent of the Taliban, are we now in an armed conflict with the Taliban, international armed conflict with the Taliban? Have we violated their sovereignty? Have we violated the prohibition against the unlawful interference of internal affairs? Again, issues that aren't new, I think, but certainly those issues will come to the fore again here going forward, there's almost no doubt about it. Yeah, and we see this in a few occasions. Post 9-11, we saw it with ISIS in Syria, and we see sometimes the law either, maybe not developing, but we see analysis or acceptance of particular choices about the law based on what I sometimes informally call the really, really, really bad actor theory, right? Which is that in another situation, there might be more debate about this issue, but given who this force, this strike, this action is being taken against that this actor is so vile, is so beyond the pale, well, you know, and we just kind of go, and we may not be in that situation here, but that was part of the post 9-11 using force against non-state actors. It was certainly apparent in certain situations with respect to ISIS, and it'll be interesting whether we start to see that again as well. And I know the debate sort of lingers, but in reality, it feels as though it was almost an instant crystallization of a new guesstimate international law, almost almost overnight. I mean, it seemed to be fairly well accepted, if not quite universally. Right. The, I guess, the use of force on the, going back to these side-bellum questions with respect to the Taliban going forward, we talked a little bit earlier about consents, and there was discussion about consents and whether or not consent would continue. Another point of debate was the application of treaties that the government of, the Jiro government had entered into prior to their fall in August, in the continuation and force of those treaties, or whether or not. And there was a pretty good debate about that. The debate being, on one hand, the treaties continue. Successor governments assume the responsibilities of predecessor governments. On the other hand, citations to the Vienna Conventional Law Treaties saying, hey, this is a substantially different circumstance, necessitating the abrogation or the removal of those treaties. I thought that was a very interesting discussion. It was, and I mean, clearly the multilateral treaties that the state of Afghanistan has exceeded to over decades, either before 9-11, during this conflict, et cetera, those ratifications, those participation in those treaties continues, the change of government. But, you know, the conversation, as you said, zeroed in on a really interesting question, which was thinking about the authority for over the horizon operations. And if you're gonna use force in the territory of another state, you need a key to get in that door. You need something to get over the border and is it self-defense, maybe? And then somebody raised the question of, well, what about the bilateral security agreement? Which was with the previous government. But it was with the previous government, as I understand it, to take actions against the Taliban, right? Well, I think that was certainly the intent, but as I understand the provisions or what's pointed out, the Taliban are not actually referenced in the bilateral security agreement. So it creates this real uncertainty. It creates this interesting question of, if you have an agreement with the previous government, you might instinctively say, no, no, agreements continue. We don't just rip things up because we have a new government. That would create, talk about lack of stability and predictability. But if this agreement is directly about the people now in power who we really didn't like before. It's a nonsensical result. Under international law, we have this idea of a fundamental change in circumstances which would essentially say, yeah, agreement not in force anymore. It's an interesting question of whether the US can rely on that agreement. It may not need to, right? There's a whole another question that we didn't really discuss in terms of the authority to, again, get over the border to use force, which is, if you're in an armed conflict with a non-state group in the territory of the state, do you need USAD Bellum authority once you're in that armed conflict to use force against them? And that becomes, we don't really, I don't think, raise that question when we're talking about using force in the same territory where we're already fighting against them. It's kind of like really how many questions, how many hoops can you put up? But what if that non-state group is now present in another state, right? So ISIS goes to Libya. Do we need separate USAD Bellum authority? Did we need it, right? Which we had against ISIS fighting in Syria. Did we need it separately? ISIS-K, are they seem to be a somewhat separate entity? Is the fact that ISIS is in their name, is that enough? Right? Or the fact that we were fighting them in certain circumstances in Afghanistan, now we withdraw forces, that conflict continue? And can we just say, armed conflict, I don't need another magic key to get there. And I think your point was well taken. I think, well accepted in the discussion, that is, I think this is your point. Each application of force in a given country needs to go through that analysis. And whether you can tie it back to the original conflict is really the tricky question. But if we accept that we're in the United States and in Iraq with ISIS-K today in Afghanistan, if ISIS-K fractures into multiple states and territories, we would, I believe, I think this was the consensus, still need to go through a USAD Bellum analysis with respect to probably self-defense each time we apply force in a given state. I think that was the consensus of the group. And again, very likely that that will happen. I think as these groups linger on, fracture, and move about the area. One other thing, I think that we had some really interesting conversation about was the rules of engagement. And Afghanistan was a laboratory for thinking about how to develop rules of engagement, who's involved in it, the role of not just the JAG, but so many other actors, the role of policy, the role of... Tactical directors. Right, the engagement with the host nation, any number of issues. And we had some really good discussion about that. And I think it was going to be a whole different set of issues going forward in that respect. I think that's exactly right. I think that just the discussion was the movement from counter-insurgency operations to what the Army is now terming large-scale combat operations, or LISCO operations. And so this is peer-on-peer traditional armed conflicts. And so the discussion centered on precisely that, how do we move the force from their understanding of the rules of engagement in a coin context to that in a LISCO context. And I think there seemed to be a pretty widespread agreement that that would, it can take kind of a two-fold approach. Educating the legal advisors with respect to what that change looks like, and then the second piece being educating the commanders and the force. A very interesting point was made in the context of how we traditionally teach rules of engagement using a Venn diagram and a political aspect, a military aspect, and a legal aspect in coin operations. The legal aspect of that is fairly small. It's much more policy-driven and military concerns-driven with respect to how the rules of engagement get drafted. But as was pointed out, in large-scale combat operations, that sort of flips on its head. And the political and the military considerations almost go by the wayside and the legal components of the RRE come to the fore. And it's an interesting kind of conceptual flip that we haven't seen and we really need to kind of think about as we go forward with respect to how we address that. The other interesting thing that kind of came up tangentially, not directly, was the concept of self-defense within the rules of engagement. And it's been an interesting issue for some time in how the U.S. has structured, the U.S. in particular has structured their rules of engagement to rely very much on self-defense rather than simply status or conduct-based targeting. Individual self-defense. Exactly. It's not a use-ad-bellum, but the individual self-defense of the soldier. Yeah, and it's been really interesting and I wonder, because it has created, I think, a lot of knots, a lot of problems, and I'm wondering, that's another piece. Can we untangle some of that? Because as the rules of engagement have layered policy onto law, which is what they're supposed to do, but as there's been a challenge for people of understanding the difference between policy and law and it keeps getting conflated, it became easier and easier to simply say self-defense. I don't need to figure out if this, whether this was a Taliban or an ISIS, or this or that, I don't really need to know if I had, you know, PID or LID or Hustle Act or Hustle Intent or all these things, and I don't really understand what they all mean. All I know is I felt in danger. I was acting in self-defense. And that works, right? And there's a lot of similarities between those things, right? If someone's engaging in a Hustle Act against you, yeah, you do have self-defense. But at some point, if we take that all the way to its extreme, it makes it sound like fighting a war is about, like, waiting for someone to make you feel in danger and then shooting back. You don't, that's not, right? You don't plan combat, let me just throw some guys out there and wait until they feel endangered and then let's see what maneuvers we can take from there. So that's, I think, wandering that out, particularly in the context of large-scale combat operations, is an existential issue. I think that's right. I mean, there are, one, it's a strange place to be because there's no basis in international law for it. I mean, it's a USAD-Bellum concept. It's a human rights-based concept. The application of that in actual armed conflict is unusual and strange. But you're right. In a context like Afghanistan, you know, soldiers at a traffic control point or on a convoy, these are individual decisions that are being made. They're difficult decisions, by the way, but they're fairly discreet, right? It's not like they're hitting this decision 30, 40 times a day. And it's, even though it's complex, like, you know, ascertaining, hostile, what does that mean to your 19-year-old soldier on the ground who's scared? It's a hard question. It's hard when it happens once a day or once a week. It becomes, as you say, ex-essentially problematic when you're talking about large-scale combat operations and 100,000 enemy forces are coming across the berm. So you're right. It becomes truly untenable in a way that would be an existential problem if we don't address it now or at least give thought to it as we go forward as we move into different types of operations. Yeah, I think another piece of the ROE conversation is that we now, as opposed to pre-certainly 1990 conflicts, right? We now live in an age where it's all discussed out in the public. There's very little that happens, certainly physically happens, and I'm gonna say on the battlefield, even though it's not really clear where that is, right? But there's very little that happens and it doesn't get commented on either on social media, on TV, by advocacy groups. The public scrutiny is important, right? That's how governments and militaries are held accountable. That's how citizens feel they have a role in the decisions of their democratic and rule-of-law country. However, part of that has led to some of these things, right? Like self-defense because we've gotten into these faux-lawy conversations about, you know, individualized decisions. Again, it's critically important to have investigation, to have accountability, to have all these things. Those are essential. But the conversation about rules of engagement, the public discourse, I think, adds another layer of challenge to this re-positioning from coin to large-scale combat operations because the public, those who are engaged in this conversation from the external perspective, whether it's academics, advocacy groups, NGOs, et cetera, they have existed on a steady diet of coin rules of engagement of, you know, extraordinary efforts to minimize civilian harm as, like, in the context of the ROE, whether it's, you know, authority to take a strike with a Civ-Cas number above, goes up possibly even to the White House in some circumstances. That's not the law of war. That's a great choice in a particular context. We understand, as you said, the political and military aspect. It's unclear whether that external community can adjust to large-scale maneuver operations, you know, let alone the disinformation piece that our peer adversaries might throw in. Which is a fantastic point, and I don't think much disgust, and probably to the detriment, we should have kind of hit on that a little more, but we should really write the layering of regulatory, but not legal requirements on the conduct of hostilities, creates a rich environment for investigations and for studies and for retrospective looks of what we're doing and how we were doing it. But you're right. I think as much as we need to reconceptualize how we think about ROE in the context of large-scale combat operations, I think the same can be said for other organizations that do that on the sidelines as well, because it's a whole different concept of how we will conduct operations. Legal, certainly, to be certain, but just different than how it's been done in the last 20 years. And so we have very much set expectations for how we will conduct operations. But those expectations and those extraordinarily restrictive regulatory rules won't necessarily apply in future conflicts. Right. And the, I think, let's hope we don't get into one of those conflicts, obviously, but were the U.S. too or other nations, the level of destruction is going to be at a level that, you know, anybody our age and younger in the U.S. has not seen. Well, I mean, and hopefully not on our tariff, but regardless, just wherever it is, right, when we think about the incidents that have caused enormous consternation appropriately so, the conduce airstrike on the Med-Sensson Frontier Hospital, the drone strike in the waning days of the pull-out in Afghanistan that was a horrible tragedy, the strike that's now produced an extensive reinvestigation in Syria, those are terrible tragedies, right? The harm is that would be caused in a peer-on-peer conflict. Dwarf isn't even the right word, right? Dwarfs it at a level that we can't comprehend and let's hope we never have to comprehend it, but I'm wondering if there's a way to talk about war in a way that these external engagers are better equipped? I think it's obviously a very valid point and remains to be seen. I think the other interesting thing about Afghanistan and you kind of highlighted this a little bit and it came a little bit in discussion, but not really in a deep sort of way, but that's the application of new technologies to the battlefield and you mentioned drones, that's the principal technology, but obviously as we go forward, you see the increase in the use of drones, you see the increase in the use of autonomous systems or autonomous weapons systems, perhaps both, and the attendant legal questions associated with that weren't discussed but sort of was brought up and I think Afghanistan, for all it was, it was a fairly traditional counter-insurgency conflict fought with fairly traditional weapons with the exception of the drones, but that was really in my mind kind of a foreshadowing of what's to come in small part. Yeah, I mean, we've seen certainly the use of drones as a component of targeting in the most recent conflict between Azerbaijan and Armenia was, you know, striking. I believe there's been one example of machine like AI being used. I think it was in Libya with respect to Turkish, I can't even remember the example exactly, but using essentially AI enabled decision making to sort of say, okay, and then humans made the ultimate decision. We haven't yet seen an example of an autonomous system identifying, selecting, engaging completely without human interference, but yeah. I think the other thing we're starting to see again as we look forward is the adoption of those technologies by the non-state actors and their ability to effect violence at a scale with a fairly small number of folks but to a scale that we haven't seen before. They traditionally would have taken thousands of people to hit that level of intensity. You can now do it with a smaller group of people utilizing some of these technological means. Again, going forward, I think we will see a lot of these very interesting questions. Yeah. The one other thing I think, because we've now touched a lot on sort of a second big thematic idea that came out of the workshop, which is not just what are the interesting questions with respect to Afghanistan but what is interesting about what it means for other things. But the other is, of course, Guantanamo and what does the withdrawal from Afghanistan mean for U.S. detention authority with respect to individuals held at Guantanamo and can the U.S. continue to assert law of war authority to detain when we don't have forces on the ground in Afghanistan. That's obviously a question about domestic and international law and I think one of the themes of discussion on this issue in the conference at the workshop was the increasingly thin ice on which the U.S. stands as the conflicts wane in intensity and existence even possibly and once they do actually go away and everybody's consensus that they're gone to what extent do those authorities remain again domestically, internationally both. Yeah, I mean it is, if I'm, you know, you can imagine the habeas petitions that are filed the day the last U.S. forces wheels up from Afghanistan. Conflicts over. Conflicts over, because you know we know that the law of war is pretty clear about that, right? You have authority to detain it. Maybe you have a little bit while you figure out the security issues of getting someone to where they need to go. I'm not sure whether any of the detainees still like Guantanamo are Taliban or so there's space it'll be interesting whether the U.S. essentially tries to say hey we're still in a conflict with the groups that these folks are associated with. However, it's an interesting question of whether it passes the straight face test to say we don't have any forces at all in a position where these groups can present any challenge of hostilities to them and yet we still assert a detention authority. A detention authority, imperative reasons of this has picked whatever kind of phrase you like from the world of LOAC. One could make the argument. It's there to be made. It's just not clear how colorable it is. So we've been talking a lot about obviously the conflict but one interesting part of the workshop was essentially what happened towards the end which is the noncombatant evacuation operation. That's something that we should probably touch on a little bit given that that mission sprung out of essentially what was the withdrawal of U.S. forces. I think the core question there obviously is what's the legal basis for the conduct of the NEO. It seemed to me that the consensus discussion was countries, states can just do NEOs for the protection of citizens abroad. It was a very, as I perceived the discussion, I don't know if you caught more of it. Yeah, you know, we didn't actually sort of settle on something that we could all write on the board and say, yep, that's it, Jack. I think given that the day before it started, I think there was general agreement. There would have been a consensus that there was still an armed conflict going on and the U.S. was still a party to. I wonder if the legal basis question is of as much interest as perhaps it might be in other circumstances. In other words, you know, we're here. We're fighting a conflict. We're going to leave, but we haven't left. So still conflict and we're now going to take a lot of people out. It's almost easier. At this level, I wonder why are we asking the question. Imagine, however, that, you know, we tried to do that NEO three weeks later, which would have not made a lot of sense pragmatically. But somehow, imagine in a strange world, it's like we've withdrawn all forces. Oh, now we want to go back in and pull people out. Now maybe, yeah. And most of the other ones that came up as contrasting examples, had consent or were not even in any kind of situation of conflict at all. But I think defensive nationals is one of the oldest authorities to insert, maybe not to use, like to use kinetic force, although to protect, to certainly insert your forces to take those people out. It's a pretty, it's a pretty ancient justification. But your point is well taken, and that Afghanistan may actually be an easier question with respect to the United States and the Allied Forces who are already on the ground conducting either armed conflict or arguably there with the consent of the government up until some point when the consent remains until it's been revoked perhaps. You're right. I think it's certainly a more difficult question either Afghanistan after the Taliban has firmly established effective control over the central government or other countries in which we don't already have forces on the ground or other countries in which we don't have consent. But I think there remain some interesting legal within sort of underneath that broad question there are still some interesting legal questions which got tossed around a little bit but maybe we didn't have sufficient time. There's so many interesting things to talk about over the course of two days. But thinking about sub-legal issues, in the context of the Neo, this one or another one and it would change again depending on the scenario, is there a legal authority to use force against an entity without picking one that interferes with it? Or the associated questions of detention operations. Or can you detain those persons? Or can you screen and what kind of screening can you do? And could you detain those people that you screen out? And on and on and the nature of this Neo and probably most is that the detention questions get answered purely pragmatically which we don't have a footprint in order to do that. So we simply can't. So we don't really have to address the legal question because we're not going to do it. I thought another thing that... I want to cover just one last issue. One thing that came up was advising commanders in the field and we've been talking about assurances, we've been talking about the Taliban and really towards the end there's a switch where whatever we want to call them we're communicating with the Taliban to facilitate the Neo. So you have judge advocates at all levels that need to advise commanders and the commanders need to tell their troops that hey we're doing this because we have an agreement essentially with the enemy and there was some discussion on how judge advocates need to communicate the importance of the change in mission so that the soldiers understand the change in circumstances. If you could just comment a little bit about that sir. I think that's a good way to wrap up this discussion. Yeah it's a great point. I mean it's certainly a unique situation in my experience in recent operations where we're kind of parlaying with the enemy forces. I don't know if there's a lot of associated legal issues with that action. I may be potentially some questions of state responsibility but I think it's more of a practical issue as you kind of highlight and that is to communicate with both the commanders and the soldiers with respect to what this means and how we're doing it. I think the other thing that was pointed out that's what's worth keeping in mind particularly in this situation and maybe applicable in others is that the Taliban is not a homogenous organization so there's factions within the Taliban so it created this additional level of uncertainty and complexity where there may have been an agreement a tacit agreement perhaps with the Taliban strategic leadership but that doesn't necessarily percolate down to all of the forces within even on the ground the different parts of the airport that we were talking to. So an extraordinarily dynamic situation and it just I can't imagine there's any way to give kind of hard advice that will be applicable in every situation. It's just so dynamic. Thank you Colonel Ford. Thank you Professor Blank for our discussion today. If you'd like to learn more about the discussion tune in for our other group of panelists which will also be posted on the YouTube channel and if you would like more information please Google the Stockton Center for International Law and take a look at our journal International Law Studies. Thanks so much.