The problem here is that the Taliban was never the legitimate authority figure in Afghanistan in the first place, at least not in the ways people commonly accepted as being characteristics of a 'legit' government.
A major component of governance is the ability to secure one's position from contestant authority figures and Afghanistan, all the way up to the time the US entered the country, was in a low intensity civil war from contestant authority figures scattered throughout the country. It is only when an authority figure established himself or itself as non-disputable can foreigners begins to find themselves bereft of alternatives for their petitions.
Korea cannot have two presidents, hence we have North and South Koreas. China cannot have two presidents, hence we have a civil war where one side was defeated and fled into physical exile away from the main geographical region that is coveted for being associated with what is China. Germany was divided post WW II into two politically distinct entities. For Afghanistan, the Taliban was occasionally defeated when it tried to assert its authority over the country. A famous anti-Taliban resistant leader was Ahmad Massoud. Up until 2001, even with the assistance of Pakistan, the Taliban could not pacify all of Afghanistan.
With no lawful or at least nominally recognized authority figure in Afghanistan, any combatant from inside Afghanistan that take up arms against a foreign state is an illegal combatant.
The legitimacy of any war is independent of the status and characters of the participants. If a country have a legitimate grievance against another country, assuming victim status for now, even if the victim country hires mercenaries, who are always illegal combatants, the mercenary forces do not detract from the moral just cause of the war. Technically speaking, the WW II era famous Flying Tigers American airmen who fought in China for the Chinese people against Imperial Japan were -- mercenaries. China was righteously the victim then and American mercenaries took nothing away from China as the victim of Imperial Japan's aggression.
AQ was a guest organization under the generosity and protection of the Taliban inside territory controlled by the Taliban. AQ was never an official branch of service of any legitimate government in Afghanistan. As far as we know, AQ was never a mercenary force, which would be meaningless and render any AQ fighter an illegal combatant anyway. There is no credible interpretation of the accepted rules of war to render any AQ fighter a legal combatant.
The problem here is that Afghanistan, as much as we can generously call it a 'country' in the political sense instead of the generic geographical context of the word 'country', was never a belligerent against the US despite 9/11, because in order to be regarded as a legal belligerent, a country must be unified under one authority figure in the first place, and history showed the Taliban was never that figure. The strongest armed force in Afghanistan, perhaps, but as long as challengers can petition foreigners for moral and even physical support and give the Taliban a proverbial 'good fight', the Taliban will never be that non-disputable authority figure.
That does not mean the US cannot be a belligerent against the Taliban, and by extension, against Afghanistan. After all, AQ being transnational entity and still needs a haven in order to recruit and train its fighters, and when the Taliban made portions of Afghanistan available for that purpose, Afghanistan became a legitimate target for US belligerency under...
If AQ have a grievance against the US, the Taliban should not have injected themselves and Afghanistan into the mix. But by allowing AQ to use Afghanistan as a base from which ultimately 9/11 came to be, the Taliban stripped Afghanistan of any moral protection befitting a neutral state.
Sorry...But I strongly disagree.
Never mind Afghanistan or Pakistan for now. Transnational law enforcement works only when there are sympathies among countries, as in those with a unified and strong singular authority figures who can speak for their peoples, for a set of laws and their associated crimes. The FBI and Interpol are useless in lawless countries like Sudan or Yemen where authority figures are monthly, if not weekly, fickle in their sympathies for the laws of their own lands, let alone laws agreed upon and shared by civilized societies.
It looks like you either did not know or forgot that our WTC Towers were twice victims of AQ: The 1993 underground garage truck bomb and finally Sept 11, 2001 where the towers finally came down.
AQ was not unknown to US before 9/11. AQ escalated the sophistication of attack in those 8 yrs. Prior to 9/11, we petitioned the Taliban in ways befitting one government to a peer for the Taliban to rid Afghanistan of AQ and Osama bin Laden. Then when 9/11 came, the US have every right to take the proverbial gloves off and treat AQ as a military force, albeit an illegal one that uses guerrilla warfare tactics.
Do put yourself as a judge. By your opinions, you have and should have no fear doing it. You presented your opinions/arguments in a rational manner, much more than I can say for most of the uneducated and ignorant trolls here. Facts are meats and opinions are the seasonings that make the (intellectual) meals enjoyable.
Maybe i wasn't very clear in my obivious post. The focus is not whether or not AQ operator are legal or illegal combatant. But rather did the belligerency between US and Taliban continue to exist after Taliban lost control of Afghanistan. A declaration of war cannot be done without a location to which to fight on, and the War in Afghanistan would have limited the fighting to Afghanistan. Technically, no single country can declare war to a fraction or a political entity of a country.
No doubt one can argue the legitimacy of an AQ operative and their role related to Afghani Government on their own, but the fact to the matter is, when the Taliban have been driven back, and the state of war between United States and Afghanistan should be officially over, as the government of afghanistan are into a political transition. In the case of Benito Mussolini, Italy ceased to be the belligerent sided with axis power on Mussolini arrest and sided with allied with neutrality. Which according to customary law, the state of war should ceased when the other side has driven out. If the states of war have ceased, then the US/ISAF force are then said to be "Visiting" but not a fighting force nor occupational force, a visiting force that was allowed to stay by Afghani government. That would still give them right to conduct operation on self defence basis.
Hence the question instead of try to investigate whether or not AQ is a legal or illlegal combatant, one should focus on whether or not the state of war between US and Afghanistan still exist. That i cannot tell you what i think as that would be a serious matter which involve days if not months of deliberation, i am not prepare to do that.
Not to mention the subject is not actually in Afghanistan but in Yemen.
And the citizenship of the fighter do matter, it only did not matter by compelling law when the state of war do still exist, but if a state of war does not exist, that would have mean the difference between Terrorist, Spy or Simply Common criminal.
For the US government, they also do have a charter on CIA on not to operate agaisnt the America or American, although it is a rules that frequently broken by the CIA/NSA, it is a rule nonetheless. The problem is, CIA is prepare to strike a US National (Which violate their chapter) on a non-belligerent soil (Yemen) This is more than likely a No. The case would have been different if the subject is in Afghanistan, and a states of war do still exist between US/Afghanistan, by the the killing would have been covered by Compelling law. But this is not the case.
People often think law is written in black and white on paper, so law are absolute. As a lawyer, i can tell you this, truth is relative, i can argue and debate any case from probably any point of view (right, wrong or anything in between), indeed laws are absolute, but the interpretation of law isn't, In this case, i can also debate on your stand point and start present my case likewise. All i can say is there are points on both side of a mirror, for me, i have not seriously investigate the issue, and i am not going to, judging the book by the cover, i would have said the state of war do not exist between US and Afghanistan after the Taliban's gone, maybe there are some agreement signed by US and Afghanistan after the Taliban that keep the belligerency current, that i do not know, but normally it's harder to argue it is then it isn't.
By the way, technically AVG in China does not count as mercenary. People do think they are mercenary but infact they are not. One of the AVG requirment is to retire/resign from US Armed Force before contracted a commission with the ROC government. Upon commission into ROCAF, they are part of the ROC Armed Force and their status would have been covered as any ROCAF Pilot. In the end, ROC have their final say on who can join their Armed Forces.
It is very much like the same as today British Military and French Foreign Legion. British Miltiary allow citizens of Commonwealth Country to join their rank, while their commonwealth brethen is coming from a sovereign country that's not in British Control (like Fiji, Australia, Canada and South Africa) when they joined the British Armed force they are covered in the Geneva convention (Only require a regulated armed force and an alligence) as part of British Armed Force, regardless of Citizenship status. The same case applied to French Foreign Legion
