Armed Conflict With Al Qaeda: A Riposte

[Opinio Juris welcomes Professor Charles Garraway as a guest respondent. Professor Garraway is a Visiting Professor of Law at King’s College, London, an Associate Fellow at Chatham House, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is a former Stockton Professor at the United States Naval War College, Newport, Rhode Island.]

There is an old Irish saying about the foreigner who when asking an Irishman for directions to the nearest town received the reply ‘I wouldn’t start from here!’. Eloquent though John Bellinger is, I feel he is somewhat like that foreigner! However, as he fairly points out, he has no choice but to start from ‘here’, even if the ‘here’ is not of his choosing.

I agree with much of what John Bellinger says. The United States was fully justified in taking action in self defence following the attacks of 9/11. I also accept that both Common Article 3 and both Additional Protocols recognize that it is possible to have an armed conflict against a non-state actor. Indeed, I would go further and say that it is possible to have an armed conflict involving only non-state actors. This is not uncommon in failed state scenarios. However, all these legal instruments envisage such conflicts as being limited to the territory of a single state. Even Additional Protocol I, with its controversial Art.1(4), cited by John Bellinger, merely applies the international law of armed conflict to an internal situation. In declaring a global war against Al Qaeda, the United States broke new ground. But was it necessary?

In so far as Afghanistan itself is concerned, there was clearly an international armed conflict between the Coalition (not just the United States!) and Afghanistan. The Taliban were the de facto Government of Afghanistan and as such represented the state. We would not describe the conflict as limited on our side to the Republican Party (or in United Kingdom terms, the Labour Party). That international armed conflict covered all the hostilities and those taking part in them. For those who actually have to do the fighting, to try to divide the conflict into two parts, one against ‘the Taliban’ and the other against ‘Al Qaeda’ is nonsensical. It was all the same conflict. The only distinction that might need to be made was as to the designation of captured personnel. Were they combatants who were either entitled to prisoner of war status or in some way had disqualified themselves from that entitlement? Alternatively, were they persons who had no right to call themselves combatants and who thus were what I will call ‘unprivileged belligerents’?

I agree with John Bellinger that the United States may detain those who commit belligerent acts against them during that conflict, either as combatants or as unprivileged belligerents, until the end of active hostilities in Afghanistan. This is a view supported by the Supreme Court. I also agree that there is a strong case for maintaining that active hostilities have not ceased in Afghanistan. Although some would argue that ‘unprivileged belligerents’ in the sense that I use the term, fall under the Fourth Geneva Convention and are thus entitled to extra reviews of their detention, I do not agree. An ‘unprivileged belligerent’ may be a ‘civilian’ in Protocol I language but to grant him the privileges of a civilian under the Fourth Convention is, in my view, an abuse. He has lost his protection from attack by taking a direct part in hostilities and whilst, again in Protocol I terms only, that does not make him a combatant, it cannot entitle him to greater privileges than the genuine combatant who can be detained until the end of active hostilities without review solely because of that status.

So far, whilst starting from a different point, my practical conclusions are thus no different. However, where I part company is in two areas. What happens if and when active hostilities cease and what happens to Al Qaeda operatives in other parts of the world?

For the first, I consider that under the laws of armed conflict, the detainees are entitled to release. However, that does not mean that they will necessarily be so released as different legal regimes may apply to prevent that. If any have been convicted of criminal offences, they must serve their sentences. Similarly, there are provisions under human rights law to allow for internment in situations of public emergency – and a post conflict situation usually remains that. The relationship between the laws of armed conflict and human rights law may be uneasy in this area but it is workable. Neither legal system is a suicide pact.

In so far as Al Qaeda operatives outside Afghanistan are concerned, as John Bellinger fairly points out, this would depend on the circumstances. In principle, they are criminals and would be dealt with under criminal law where that is possible. I am relieved that the United States does not ‘plan’ to shoot terrorists on the streets of London but that carefully phrased statement does not say whether the United States considers that it would be legally entitled to shoot terrorists on the streets of London! In my view, it would not, except in the most extreme circumstances. That those circumstances can exist, however, is illustrated by the shootings of the IRA terrorists in Gibraltar. Although the European Court of Human Rights ruled against the United Kingdom in that case, it so decided on narrow grounds and recognized that had the circumstances been slightly different, the shootings would have been justified. However, the justification was under domestic and human rights law, not under the laws of armed conflict.

What 9/11 and its aftermath have shown quite clearly is that, when tackling global terrorism, there needs to be a coherent legal strategy covering the whole spectrum. The answer to 9/11 is not to be found either in the laws of armed conflict or in criminal law but in a combination of both. It has been unfortunate that the advocates of each have tended to increase the divide rather than working towards a common solution where both legal regimes are used in combination, each in their respective areas, to combat the threat. The attempts to use both the laws of armed conflict and criminal law in areas for which they were not designed has damaged both.