TO: ROYAL NETHERLANDS COMMANDER OF REGIONAL COMMAND SOUTH, AFGHANISTAN

FROM: LISA M. BECK, POLITICAL ADVISER FOR REGIONAL COMMAND SOUTH, AFGHANISTAN

RE: THE LEGITIMACY OF TARGETING THE ALLEGED BOMB MAKER ABDUL BASSER

DATE: OCTOBER 12, 2014

QUESTION PRESENTED

Is Abdul Basser a legitimate Reaper target in coalition efforts to carry out International Security Assistance Force

(ISAF) objectives?

SHORT ANSWER

Any person who participates in hostile acts is subject to repercussions as set forth in various laws concerning the

rules of armed conflict, more specifically, the conduct that, through international consensus, has been deemed

acceptable conduct during war. Acceptable conduct during war is also known as jus in bello. It may sometimes

involve decisions regarding methods used to determine the legitimacy of a target based on his status and/or activity.

As with any law, sufficient evidence must be presented before lawfully prosecuting an assailant. Without it,

discussions regarding another element of the rule of law – proportionality – are irrelevant. Some countries abide by

a principle of “guilty until proven innocent” and it is in the best interest of Regional Command South to apply that

principle to Abdul Basser.

FACTS

ISAF intelligence sources indicate that the local bomb maker of recent bomb attacks in the southern province of

Uruzgan is Abdul Basser, a 50-year-old civilian living with his large extended family in the village of Gizab.

During the day, Basser runs a small engine repair shop out of his home. He has been doing this for more than 10

years. He has no obvious links to the Taliban and appears (at least outwardly) to be just a mechanic. However, two

independent, confidential Afghan informants have been inside his home in the last two weeks and have reported that

the home contains a bomb-making room. It is reportedly well-equipped and has been in operation for at least a year.

Both sources have been classified as “highly reliable” and have given detailed written reports of a suicide bomb

assembly area. They claim that Basser warned them not to speak about the “back room.”

On Monday, Basser is scheduled to make a trip for auto parts in his two-seat pickup truck and is expected to be

accompanied by his 12-year-old son.

Although eliminating the source of bomb attacks is clearly desirable, the Dutch parliament has voted to end the

Dutch military mission in Afghanistan and government ministers have started a phased withdrawal of troops from

combat operations.

DISCUSSION

Combatant Status & Applicability of Jus in Bello

On what grounds would any organization, to include Regional Command South, have in targeting Basser? If

nothing else, the first thing that would need to be established is whether or not Basser is a participant in hostile acts.

Making this all the more difficult is the fact that “despite the serious legal consequences involved, neither the

[Geneva] Conventions nor their Additional Protocols provide a definition of direct participation in hostilities.”1 The

International Committee of the Red Cross (ICRC), with its Interpretive Guidance on the Notion of Direct

Participation in Hostilities under International Humanitarian Law, helps decipher the meaning of “direct

participation in hostilities” and attempts to expound on the interpretation of the “principle of distinction.”2

1 International Committee of the Red Cross (ICRC), Interpretive Guidance on the Notion of Direct Participation in

Hostilities under International Humanitarian Law (May 2009) (prepared by Nils Melzer), p.12. 2 Ibid, p. 5.

With regard to Basser, the evidence that he is 1) a bomb maker and/or 2) the bomb maker responsible for the most

recent spate of bomb attacks in southern Uruzgan province is not all that strong. The evidence is only based on the

information provided by two informants who have spent just two weeks observing Basser and activity in his home.

Though it is well known that some Afghani tribal cultures are traditionally hospitable to all, this does not necessarily

mean that every aspect of every activity they may be engaged in is divulged to mere strangers. At this time, none of

the reporting has been corroborated, nor is it accompanied with any physical evidence (e.g., photographs, pieces of

bomb-making material, invoices for materials used to make bombs). For this reason alone, it is unwise to pursue

Basser as a target.

The argument above may be akin to putting the cart before the horse to some. Another element addressed in ICRC’s

Interpretive Guidance is the notion of “participation in hostilities.” Per the ICRC guidance, “Depending on the

quality and degree of such involvement, individual participation in hostilities may be described as ‘direct’ or

‘indirect.’3 It cannot be determined, with the evidence (or lack thereof) that has been presented, to what degree

Basser may be involved in hostile acts. In fact, the evidence thus far presented does not even strongly substantiate

that he is involved in hostile acts at all.

Other Factors to Consider

Furthermore, the cost-benefit analysis must also be considered. Targeting Basser is unlikely to be executed without

some collateral damage. For starters, it is expected that he will be bringing along his 12-year-old son and they will be

riding in a two-seat pickup truck. As good as the Reaper may be, it is quite likely that Basser’s son could be hurt or

injured in the process and at this time, no reports have indicated that his son has anything to do with this alleged

“bomb-making room” in Basser’s home. Even if Basser could be killed without harm to his son or others that (without

further evidence) we must assume are innocents, the negative repercussions of unnecessarily killing a head of a

household would be damaging, especially if we have been mistaken in our assumptions regarding his participation in

bomb attacks.

Moreover, what if Basser is a small fish in a big pond and if we instead wait for more information, higher quality

information, and are able to corroborate some of that information, we may even find out that Basser could lead us to

a larger network that is truly instrumental and responsible for these bomb attacks. A good fisherman does not

always try to go after the fish who first nibbles on his line. For all we know, Basser may even be willing to help us

in these efforts. Acting in haste now might prevent us from eliminating the true source of these attacks later.

Another very important fact to consider is this: The Dutch parliament has voted to end the Dutch military mission in

Afghanistan and government ministers have started a phased withdrawal of troops from combat operations. With

such a short amount of time left in Afghanistan, is it worth the risk to the Dutch reputation to try to take out a man

whose ties to hostile activity in the region are weak at best? If the Dutch parliament has already voted to end the

Dutch military mission in Afghanistan, this is hardly the time to engage in risky endeavors that may besmirch the

Dutch contribution to this war effort and erase or diminish all of the efforts and good work honorably carried out

during the past decade.

3 Ibid, p. 43.

CONCLUSION & RECOMMENDATIONS

Even though two informants have claimed that Basser’s home contains a bomb-making room, the evidence just is

not strong enough to connect him directly to any one particular attack. And without more solid pieces of evidence,

it is not even strong enough to establish him as a bomb maker.

Of the concerns addressed in this memo, the one that may be the most at stake is harm to the reputation of the Dutch

contribution to ISAF efforts should the Dutch be, in part, responsible for unnecessarily eliminating the life of an innocent.

For that reason, it is recommended that Regional Command South delay any request to target Basser until it can be

determined, with more certainty, that he is, indeed, participating directly in hostilities. Until we can determine that,

he should not be considered a combatant and, therefore, should not be targeted.