Armed Conflict With Al Qaida?

by John Bellinger

My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?

I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.

The phrase “the global war on terror”—to which some have objected– is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.

Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)

Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.

We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.

So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.

Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.

Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.

Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.

Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.

For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.

The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.

One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.

Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.

15 Responses

  1. Thank you, John for posting. I think it is helpful for administration officials to talk about their views in an open forum such as this one.

    I hope my question doesn’t jump the gun, but I’m sure one of the Professors here will let me know if it does.

    I’ll grant you that we’re in a state of war for the moment. But then, in your post you state:

    “One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime.”

    Obviously, in traditional conflicts we had some formal terms at the cessation of hostilities which usually dealt with the repatriation of prisoners (and for those that committed crimes, trials).

    But how, if we are in a formal war against Al’Qaeda, will we know when the war is over? When will the President’s power to detain individuals as an incident to a global war against Al’Qaeda end?

  2. Dear Mr. Bellinger,

    May I first say what a pleasure it is to see a senior adiminstration figure such as yourself engage in this kind of a blogging experiment, a discussion I hope will prove to be most useful and productive. I have some comments on your most interesting post, as well some questions. So, to begin:

    (1) I am myself one of those who do not believe that the United States is engaged in an armed conflict with Al Qaeda, but that the “global war on terror”, a non-legal term though it might be, must be split into its constituent components. Therefore, the US is indeed engaged in an armed conflict in both Iraq and Afghanistan, and may lawfully detain combatants in these two conflicts until the cessation of hostilities. The US is not, however, engaged in an armed conflict with al Qaeda as such, all over the world, at it may not detain those individuals that it considers to be al Qaeda members wherever it finds them, pursuant to the law of war. Let me elaborate on this further.

    (2) Your post, insightful though it might be, shows somewhat of a conceptual confusion between the jus ad bellum and the jus in bello. I, for one, am entirely open to arguments that the US had the legal right to self-defense pursuant to Article 51 of the UN Charter against an armed attack by a non-state actor on 9/11, which emanated from the territory of another state, Afghanistan. Yet, an armed attack is emphatically not the same thing as an armed conflict. You have certainly provided examples in state practice of armed attacks being committed by non-state actors, but you have not provided any example, nor am I otherwise aware of any, in which such a situation was considered to be a war or an international armed conflict. Noone, I think, has ever argued that the British Empire was in a state of war with the militant group owning the Caroline, nor were the British Empire or the US at war over the Caroline operation.

    (3) There is no such example as there has never been one. Up to World War II, international law knew ‘war’ only, to quote Oppenheim, as a ‘contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases’ (L. Oppenheim, International Law, II, 202 (H. Lauterpacht ed., 7th ed., 1952). Short of war, there were only insurgency and belligerency, and non-state actors were for the most part not regulated by international law at all. At least up until 1949, war has always been only a specific type of interstate conflict, characterized by the subjective animus belligerendi. You say in your post that this it is merely a ‘historical fact’ that most wars were interstate one, but this is simply untrue. There have been NO wars other then interstate wars, not one, as that was a fundamental feature of the international system. Even civil wars were regulated only when there was a recognition of belligerency, as during the American Civil War.

    (4) The true recognition of non-state actors happens only after 1949, when Common Article 3 of the Geneva Conventions extends basic rules to non-international, i.e. internal armed conflicts, which need not be full-fledged civil wars, but which must arise above the level of a mere internal disturbance. Common Article 2 still retains the paradigm of interstate war for international armed conflicts. The other examples you cite, such as wars of national liberation, are only types of internal conflict to which, for various reasons, the full rules applicable in international armed conflicts will be applied (other types being, for example, conflicts internationalized through the Tadic framework).

    (5) The position of your government, as I understand it, has been that the United States is engaged in an international armed conflict with Al Qaeda, yet that this is an international armed conflict which is beyond the reach of the Geneva Conventions. As I have tried to explain, that is simply impossible, as Al Qaeda is not a state, and that is I believe the opinion of a vast majority of legal scholars. It is also the opinion of the US Supreme Court, which in its Hamdan judgment explicitly rules out the possibility that this global war is legally an international armed conflict, by finding that Common Article 3 is applicable instead.

    (6) So, my final question to you is this: what exactly is the position of your government now, after Hamdan, and how exactly do you interpret the Court’s ruling, which I personally consider to otherwise be rather ambigous and unsatisfactory. Do you consider that the Court has ruled that the ‘war’ between the US and Al Qaeda is a non-international armed conflict, and do you agree with such a legal conclusion, or are you sticking by your argument that this is indeed an international armed conflict we are speaking about.

    Best regards, many thanks, and I look forward to your answer with anticipation.

  3. Mr. Bellinger,

    Thank you for your insight. A clear and incisive explanation of the Administration’s viewpoint has been notably absent from the sound bite dominated, mass media PR campaigns.

    Do you have an office that is accepting resumes?

  4. I concur in the kudos to Mr. Bellinger, not only for engaging this audience on a blog, but also for treating the questions so seriously — these posts are obviously not mere press releases.

    I have been very critical of the Administration, and Mr. Bellinger, on matters related to detention and interrogation, and therefore I’m looking forward to the discussion about standards for interrogation and rendition, and definitions of “enemy combatant” (which will determine who may be detained).

    But on this one, I must confess I’m still confused by the argument against what Mr. Bellinger has written.

    He will likely respond that, after Hamdan, the Administration accepts the view that the conflict against Al Qaeda is a non-international armed conflict, governed by Common Article 3 (at least outside Afghanistan — inside that nation, I’m sure others will argue that Article 2 applies).

    Why would we (i.e., pro-Geneva critics of the Administration) resist that conclusion? Let’s put it this way: Let’s say Marko Milanovic were correct that this is not an armed conflict recognized by Geneva at all. What would follow from that? The detainees would lose the protections of CA3, for one thing. And the military conflict would still be authorized as a matter of domestic law, because Congress voted for it 518-1.

    That’s a bad trade-off.

    I assume Marco and others would argue that if it’s no sort of Geneva-recognized conflict, then the U.S. must use its criminal-law rules, rather than the ordinary authorities associated with armed conflict (e.g., the right to detain indefinitely). But why is that so? As a matter of domestic law, the use of military force would remain authorized. Presumably the argument is that the Geneva Conventions would prohibit it. But how is that the case? Where, if at all, does the treaty (or some other source of law — a jus ad bellum norm?) prohibit the use of military force unless the conflict is one recognized in Geneva?

  5. Although the Korean War began with an invasion of the South by the North (two entities that may or may not have been states depending on your point of view), the War was mostly between the UN and “Chinese Volunteers” who, although really units of the PLA, were superficially individual civilians. Even if you assert direct mainland involvement, the mainland was at the time occupied by an unrecognized rebel band of Communists unrelated to the official government of China on Taiwan. It wasn’t just the US that fought a several years war against a non-state actor supported by an unacknowleged government. The UN and most of the Western countries participated.

    Then there was something in Vietnam against another non-state bunch of rebels called Viet Cong, athough in reality it was a fight against unacknowleged units of the regular army of North Vietnam (even though we weren’t officially at war with the North).

    The 20th Century began with Congress (all but?) declaring war on the band of rebels associated with Poncho Villa. His raid on New Mexico was trivial compared to 9/11.

    The “Shores of Tripoli” refers to a time when governments routinely used formal military units against non-state actors. We called them “pirates” which is plausibly a more accurate term for Al Qaeda than “terrorists”.

    Although the biggest wars were international in character, there is simply no basis for the claim that wars are even “usually” between states let alone exclusively between them.

  6. Marty,

    I, as always, much appreciate anything you might say on the topic of the ‘war on terror.’ So, you have basically posed a policy question – if I were an attorney of one of the people detained in Guantanamo, or counsel to a suspected terrorist, what would my client lose by legally characterizing the conflict between the US and al Qaeda as a non-international armed conflict. My general answer is that these persons do indeed enjoy the protections of international human rights law and US constitutional law, and that these protections can actually be lessened by the application of the law of war, as states can do things in times of war that they cannot do in times of peace. That is precisely why the US government has argued for the application of the law of war in the first place. I can think of at least three more specific groups of consequences:

    First, as a preliminary question regarding the status of unlawful combatants – lawful and unlawful combatancy simply do not exist in non-international armed conflicts. Any combatant in a Common Article 3-type conflict is by definition the equivalent of an unlawful one, as he does not have the right to take up arms against the state, i.e. the US, none of his actions can even theoretically be privileged, he is fully exposed to the domestic law of the state, and can never have access to POW status unless the state chooses to provide it. People don’t seem to realize just how minimal the guarantees of Common Article 3 actually are – see, e.g., this discussion by Ken Anderson and Geoff Corn in this regard. So, by reading Hamdan this way, the US government can just ditch its whole argument about unlawful combatants, as it no longer needs it since the Supreme Court handed it its functional equivalent on a silver platter.

    Second, anyone designated to be a combatant by the US government in this global non-international armed conflict would be exposed to the policy of targeted killings, as the US has done in Yemen in 2002, and has recently tried to do in Somalia.

    Now, I’m the last person to cry a river when it comes to these particular people, but this is a policy which can be used and abused in rather extreme ways. Any citizen of Germany, for example, whom the US considers to be an Al Qaeda combatant, could be targeted in Germany, as his partakes in a supposedly global non-international armed conflict. The fact that the US will for political reasons not resort to such assassinations in any reasonably robust country is not, I think, a sufficiently principled objection to a legal power it actually claims to have.

    Third, and most important, is the issue of indefinite detention. By having Common Article 3 applied to them, the detainees in the war on terror might have won on torture, which CA3 unequivocally prohibits, but might have lost on the question of their freedom. Mr. Bellinger has in his post mentioned the power of states involved in INTERNATIONAL armed conflict to preventively detain combatants until the cessation of hostilities, but that is a power and a limitation on that power which exists only in international, interstate armed conflicts, by virtue of Art. 118(1) of the Third Geneva Convention, applicable only to prisoners of war. There is NO comparable rule in non-international armed conflict, in which the detention powers of a state neither derive from any rule of IHL, nor are limited by it.

    You can clearly see this difference if you take a look at the recent ICRC Study on Customary IHL. Rule 128 (A), applicable in international armed conflicts, states that ‘[p]risoners of war must be released and repatriated without delay after the cessation of active hostilites.’ Rule 128 (C), regulating non-international conflicts, is significantly different: ‘[p]ersons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist.’ ICRC Study at 451. And the judge of these reasons would, regrettably, be the US government.

    So, in short, you cannot apply any other part of the Geneva Conventions if you apply Common Article 3, as the other provisions can only be applied through Common Article 2 and belligerent occupation. That is one problem. The other is that, even if as a matter of policy it would be beneficial for the detainees to be protected by CA3, I see as a matter of law absolutely no authority for such a proposition. None, zero, zilch. If the problem is that the international human rights treaties are not self-executing before US courts, while IHL treaties can be, that is really not my concern, as that is solely a matter of US domestic law.

  7. Marty:

    1) they do argue that the Convention Against Torture does not apply to an “armed conflict” correct? Granted that you could disagree with that argument without rejecting the idea that the armed conflict exists.

    2) CA3 puts no limits on indefinite detention. It’s a bad idea to have the existence of “armed conflict”, and the ability to detain people for the rest of their natural lives, depend *only* on the executive’s assertion that this person is a member of the enemy–especially with an executive that has never made a good faith attempt to determine whether that is true.

    Read the CSRTs, and imagine being locked in prison for the rest of your life based on those procedures or anything like them. O’Connor’s opinion in Hamdi no longer seems so benign afterwards.

    I’ve never been sure where I come down on this debate, but if you actually look at the results of the administration policies…the more I look at the facts, the more I understand why people argue that no executive, and especially this one, can be trusted with a war that’s not limited in space or time.

    The claim that “The U.S. military does not plan to shoot terrorists on the streets of London.”–well, we’ve kidnapped them from Skopje and Milan and Sarajevo, we’ve taken them from a prison cell in New York to a military brig. If we won’t do it in London, it seems to be based more on convenience and bad press for Tony Blair than any real recognition of any limit on the administration’s power.

    The courts are always going to be more deferential if they see this as a “war”.

    I realize I’m not making a narrow argument about the definition of “armed conflict” under Geneva–but I’m not sure the people you’re responding to really are either. I think it’s a general question of whether we accept that there can be a war, with all the executive power to kill and detain (even if not torture), and all the judicial deference it implies, over the whole globe and for the indefinite future.

    I’m ambivalent about the question–but I’ve never understood why you’re not.

  8. Mr. Bellinger–maybe rather than assuming I should ask the question:

    “The U.S. military does not plan to shoot terrorists on the streets of London.”

    Is this a matter of law or solely a matter of policy? Are there legal limits that prevent the U.S. military or CIA from shooting terrorists on the streets of London, or from, hypothetically, taking prisoners into military or CIA custody and transferring them to a military brig, a CIA prison, or a foreign prison? If there are legal limits could you explain what they are?

  9. One missing point of view in these discussions is anyone arguing for the acceptance of Al Qaeda as a real army whose members are combatants entitled to full POW status. Before 9/11 it was regarded as a civilain, criminal, terrorist organization whose members could be tried in the courts. Afterwards, the administration created the confusing status of “illegal enemy combatant” while administration critics seem to cry out for recriminalization.

    This will come to a head if and when Kahlid Sheikh Muhammed (KSM) is brought to some form of trial. If he was a combatant, then he was entitled to combatant immunity for the military planning and execution of 9/11. Nobody can doubt that the Pentagon was a legitimate military target. The World Trade Center was similarly a legitimate industrial target (at least in the context of US bombing history). So if the US accepts the consequences of its decisions, it will only be able to charge KSM with the death of the crew and passengers on the 4 jets (since Air Piracy is never a valid form of combat) but not for the deaths of the people (including police and firemen) on the ground.

    In a few cases (Padilla for example) a member of Al Qaeda was captured in circumstances that clearly render him an Unpriviliged Belligerent. KSM was captured in bed, and that is not enough to claim that he was not entitled to full POW status.

    Most of the Detainees have been presented (without much comment) with an interesting legal dilemma. When they appear before a CSRT, they have a choice. They can admit that they are in fact Combatants, and then demand that they be recognized as POWs. Or they can deny that they are Combatants, and then forever lose any right to claim Combatant status. So far I have not heard of a single case where the first option was used (although anyone who remained silent might still have an option to make the claim). In theory the CSRT was supposed to be able to transform into the “competent tribunal” to test a claim of POW status. It never did so, but then the claim was never made.

  10. re. Mr. Bellinger’s post and the case of the Caroline:

    “Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process.”

    As I understand it, the case of the Caroline does not support an argument that self-defense is permissible “where the harboring state is unwilling or unable to take action to quell the attacks.” In an exchange of letters between Lord Ashburton of the U.K. and U.S. Secretary of State Daniel Webster, “[t]he U.K. denied violating international law but apologized for the invasion of U.S. territory. Secretary Webster wrote in response:

    The President sees with pleasure that your Lordship fully admits these great principles of public international law … [and] respect for the inviolable character of the territory of independent states is the most essential foundation of civilization…. [W]hile it is admitted that exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, leaving no choice of means, and no moment for deliberation.'”

    (from Paust, Van Dyke &Malone, International Law and Litigation in the U.S., 2nd ed. 2005, pg. 1007)

    I understand this case to stand for the principle that a legal claim of self-defense does indeed exist. Moreover, Webster’s qualification of when this argument can be used seems to be a persuasive limitation within U.S. legal tradition prohibiting assertions of self-defense for anything under the sun. (Interestingly, the “instant” nature of a response in which “no moment for deliberation” is possible does not seem to apply to the post-9/11 invasion of Afghanistan or Iraq.)

    However, I do not see the case of the Caroline as having anything to do with permitting self-defense “where the harboring state is unwilling or unable to take action to quell the attacks.” To my knowledge, the U.S. did not acknowledge the U.K. (Canada)’s right to invade U.S. territory because the U.S. was unwilling or unable to quell attacks of U.S.-based insurgents. Perhaps Mr. Bellinger can provide more information on why he believes the Caroline case supports such an analysis as he claimed?

    On a side note, there was also confusion over this case in 2002 when national security adviser Condoleeza Rice seemed to think, quite to the contrary, that the case stood for the permissibility of pre-emption, claiming that the principle of “[a]nticipatory self-defense is not a new concept.”

    re. HowardGilbert’s first post:

    “Although the Korean War began with an invasion of the South by the North…”

    Surprisingly to many folks, this is not the most factually accurate of statements. Certainly no one can deny that North Korea invaded South Korea on June 25, 1950, but was that the beginning of the war? Actually, armed groups of soldiers from both countries were skirmishing back and forth over the border for around a month at least prior to June 25. (See, e.g., Bruce Cumings, Origins of the Korean War, 2 vol. set).

    Additionally, I don’t think that comparisons to Korea, China and Vietnam, etc., are entirely helpful in terms of state/non-state conflicts because these conflicts arose from internal divisions within states over domestic sovereignty, and by definition anyone who would contest such seated state sovereignty is a non-state actor.

  11. @Prof Lederman: Just because I enjoy the discussion too much, please do not get distracted from discussing mr. Bellinger’s point of view. I have been following your posts at Balkanisation and are more than interested to read your reply.

  12. “these conflicts arose from internal divisions within states over domestic sovereignty, and by definition anyone who would contest such seated state sovereignty is a non-state actor”

    If the status (state, non-state) is determined only by its origins, then there has been a vast misclassification of a conflict between 1914 and 1918 that arose from a Bosnian movement for independence from Austria and a resulting assination.

    I would rather classify a War based on who is fighting. In Korea, for example, there were no meaningful North Korean forces throughout most of the conflict. To classify that war, you have to determine who the Chinese Volunteers really were. I do not see a meaningful objective distinction that can be made between the status of Al Qaeda fighters in Afghanistan and Chinese Volunteers in Korea. They are both foreign soldiers injected into a conflict that was originally international (Russian/WWII) but later became a North/South civil war partition. It is also helpful to note that if you pressed the Chinese, they ultimately could fall back on China, while Al Qaeda ultimately fell back to its principal external source of support (Pakistan), and the US was reluctant to widen either war by bombing the enemy across the border.

  13. (I repost as I could not preview my comments above and have had to correct some of them).

    I would like to comment that this approach to interacting with a member of one’s government is very troubling to me. Essentially, I am receiving carefully developed position papers that seek to sound eminently reasonable from Mr. Bellinger to which a response is sought. Points that are immediately relevant are deferred to later in the week, yet I fully expect that they will not be addressed.

    I suspect that certain points have been included in this first post so that if a response is not made to them at this time, it will be considered that we are acquiescing in those points. So I am permitting myself to reserve my position on anything to which I do not directly respond here.

    Afghanistan. I believe we will have to await more analysis of the history to determine whether the coalition attack on Afghanistan was a legal response by the United States and its coalition partners in an act of self-defense after the 9/11 attack. I remember that the Administration was very dismissive of what the Taliban offered in response to the request to turn over certain Al-Qaeda persons. I have tended to think Afghanistan worked as a matter of self-defense and in light of the September 12 UNSC resolution but I have felt so duped by this administration on so many things that I will only allow myself to go that far.

    Non-state actors. I have no problem with armed conflict being claimed between a state and a non-state actor – Grotius wrote about that going back to antiquity. See his Laws of War and Peace. Nothing new under the sun.

    Framing as two-wars. I recognize that the Administration would like to frame the discussion as two armed conflicts – one with Al-Qaeda as a non-state actor and one with the Taliban as a state (actually failed state) actor. I personally reject that vision as it seems there was great interaction/coordination between Al-Qaeda and the Taliban in Afghanistan. Moverover, I believe that has been the case in Iraq (remember Al-Zarkawi coordinating with Sunni dissident elements at some points and not coordinating (Samara dome) at other points) and in many countries in which Al-Qaeda operates in trying to take advantage of/work with home-grown terrorist dissident movements.

    I think the distinction the Adminsitration is making is not something that is meaningful on the ground. The reason for this evident effort to distinguish the war in this way seems to be to permit the administration to seek a different legal regime for prosecution of the war between Al-Qaeda and non-Al-Qaeda types.

    Proportionality. My question is whether this Administration is following an approach to the prosecution of these armed conflicts that has any even distant relationship to proportionality? When we look at the state of war in which we are plunged for the past five years, and the amount of death in those armed conflicts, the secret prisons, the torture, and the domestic surveillance etc. that are part of this effort, one wonders at what point 9/11 becomes an excuse for depradation.

    For example, 5 Al-Qaeda persons are in Somalia. Therefore we help arm and have the Ethiopian Army go into Somalia to overthrow the Islamic Courts (please do not insult our intelligence and deny this – the boats were not off the coast just as happenstance). Those good ole warlords then invite us in (or we pay them to shape them into a compliant puppet to invite us in). We then go and bomb with a daisy cutter where the alleged Al-Qaeda operatives are and kill (according to BBC accounts I understand) at least 500 people. Where is the proportionality in that?

    Iraq. Some Al-Qaeda person sat in a Baghdad hospital at some point prior to the War in Iraq and that becomes part of the basis of why we can go into Iraq. We go in after Saddam Hussein – we fight them there so we do not have to fight them here being the logic stated – yet we learn afterward there is no link between Saddam and Al-Qaeda (or weapons of mass destruction). So where is the armed conflict with Al-Qaeda part of this war in a country with no Al-Qaeda links? 200 000 to 600 000 Iraqis are dead now that would not have been dead but for our decision. Where is the proportionality in that kind of self-defense?

    Strategic vision. All I have been hearing the past year or so is the strategic vision for the Middle East – where is the Al-Qaeda armed conflict in that strategic vision? Is there any relationship to proportionality in this scheme? How many Middle Easterners have to die to make that strategic vision come true – is that a proportional response by us to Al-Qaeda?

    At what point are high level civilian authority like Mr. Bellinger liable for violations of international criminal law? Mr. Bellinger notes the efforts of his office to support international criminal law efforts around the world. However, where and when has Mr. Bellinger sought to stay the hand or advocated to Justice etc that the high-level civilian colleagues who have designed and implemented war crimes be also prosecuted. Not the low level grunts at Abu Ghraib or David Passarro. But the Geoff Miller’s or the John Yoo’s or the Alberto Gonzales. When a lawyer like Alberto Mora is running around Defense complaining about what is being done – why are Bellinger’s comments only those of an apologist for criminal acts. I was simply appalled by Mr. Bellinger’s testimonty to the Human Rights Council on the Convention Against Torture. Mr. Bellinger always has the right to resign rather than compromise himself in this manner.

    As to Iraq, self-defense has not given us the authority to go in their nor did the Security Council authorize us going in. We have seen the War Crimes trial of Saddam Hussein come finally out to be what we suspected was going on from the beginning – a lynching. I hate Saddam but at least he should have had lawyers of his choice and not ones designated by the court. That was what we permitted the Nazis at Nuremberg.

    We have Abu Ghraib as only a tip of the iceberg of a system of American prisons for some 14 000 persons around the world in conditions that are purposely kept murky. Some persons have wisely said that we lost Iraq the day the Abu Ghraib pictures came out and I am coming around to believing that. Where is the proportionality in creating an American Gulag?

    Where is the proportionality in us watching an American (Padilla) driven insane by his government that is holding him on American soil? What has Mr. Bellinger done to stay the kind of argumentation in court that says the person who is tortured by America is not to speak of the unspeakable as that compromises national security? How does the principle of international law that no state can avail itself of its internal law to extract itself from its internatioanl legal obligations impact on his thinking as legal adviser.

    What is so murky about the Convention Against Torture?

    Do the members of the Office of Legal Adviser give advice on International Law or has everyone moved to U.S. Foreign Relations Law?

    Bellinger makes a veiled reference to the size of the Al-Qaeda threat as if he was aware of intelligence or something that makes that threat that broad. Also, the reference is made as to how other states react to the US pursuit of Al-Qaeda persons. Yet, does the U.S. determination of insufficiency of a state permit the US – under the guise of self-defense – to do as it pleases in that state. I do believe that an Italian Court has been looking at just that recently.

    As to the null interpretation or narrow interpretation of Professor Posner, the thoughts are presented almost as if we are in a parlor game here. I can not believe that the staggering cost in troops and treasure of the present war for the United States is not seen as a reflection of horizontal enforcement through their non-action by other states in response to our semantic games about our compliance with our international obligations.

    Why should the United States comply with international law – because it is law that we ignore at our peril. Cute little games like The Limits of International Law are fun but childish. Boy, have we had to learn that again.



  14. Mr. Lederman–remember that Congressional authorization has not been for a declared state of war, only for the use of appropriate military force. In the case of al Qaeda, it seems to me that the “appropriate force” was largely exercised in the battles of 2001. They attacked us, and we retaliated in kind, i.e. as appropriate for our defense. (I am largely basing this position on Yoo’s discussion of defensive warfare in The Powers of War and Peace.)

    The President still has authorization to continue using “necessary and appropriate force” to prevent future attacks…but that doesn’t mean *that* force is the *same* force we used in waging defensive war against al Qaeda. It is just whatever “necessary and appropriate” means in the post-Tora Bora context. I don’t know what that is, but I strongly suspect (speaking as a layman) it isn’t the same thing as the constitutional definition of “war”.

    And I really can’t believe that just because a group attacks our military we are at war with them. We are of course entirely justified in retaliating as appropriate and in kind, but surely that doesn’t place us in a state of war. Of course we could be said to be at “war” with them in the loose sense–in the sense of firing bullets and dying, for example, which is a rather important sense obviously–but that is simply not the same thing as a national state of war.

    (Furthermore, IMO it’s an interesting question as to whether the 2001 AUMF applies to the entire al Qaeda network, or only to those cells which were responsible for the attacks of 9/11, and those which either aided or harbored them.)

    The ramifications for the rights of prisoners are still fuzzy, but it seems to me it must at least start with the basic question: are we in a state of war–legally, i.e. constitutionally (and yes it matters)–with al Qaeda, or not? Then we can start to ask the question whether it matters with respect to detentions.

  15. Both Marko Milanovic and Marty Lederman suggest that the Supreme Court in Hamdan held (i) that the US is involved in a conflict with Al Qaeda which is distinct from that with the Taliban in Afghanistan and (ii) this conflict with Al Qaeda is a non-international armed conflict. However, neither of these issues were actually decided by Hamdan. The US govt did make these arguements, the Court held “We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories [to the Geneva Conventions].” Thus the Courts application of Common Art. 3 was only on the basis that this provision would at least apply and not on the basis that it was necessarily the applicable provision. Thus, whether or not there is a distinct conflict with Al-Qaeda and what the nature of that conflict might be are still open for decision, even with the US.

    Although Marko might be right that it is difficult to find historical examples of armed conflicts between a State and a non-State group which take place outside of the territory of that State, it is difficult to understand why this would be impossible conceptually. Certainly, protracted armed violence (to use the terminology used by the ICTY in Tadic) might take place between a State and a non-State group that is outside that State with most of the fighting occuring outside that State. Of course, for the State to be permitted to use force outside its territory it would have to comply with the jus ad bellum. In other words it would need a basis in the law of self-defence. But as long as that is present why is this not an armed conflict with the non-State group which is independent of the armed conflict with the State on whose territory the violence occurs. To take a concrete example, would it be wrong to assert that there was a conflict between Israel and Hezbollah in the summer of 2006 which was independent of any involvement of Lebanon? I think not. If members of Hezbollah’s military wing were found in Israel in 2006 would Israel have been permitted to detain them (as IHL would permit) or would it have been obliged to release them if those particular people had commited no crime. To argue that there was no conflict with Hezbollah would be to say that Israel was obliged to release these fighters if they had committed no crime. Why would any State accept such a view?

    Although I accept that, in principle, there could be an armed conflict between the US and Al Qaeda, I am not sure that the conflict in Afghanistan was separate from that with the Taliban. It could be argued that the Al Qaeda was fighting alongside and with the Taliban in the context of the Afghanistan conflict and was therefore a militia belonging to a party to the Afghanistan conflict (in the words of Art. 4(A) 2 of GCIII). If this is factually correct then Al Qaeda members captured in Afghanistan were captured in an international armed conflict to which the entirety of the Geneva Conventions apply.

    If it is accepted that the US and Al Qaeda are involved in an armed conflict separate from that with the Taliban it need not be accepted that this is a non-international armed conflict. Such a conflict might still be international at least to the extent that it involves the use of force by the US outside the US. This is because any use of force by the US outside the US would raise jus ad bellum issues and it would be incongrous to argue that the jus ad bellum determines whether force can be used but the conflict is non-international. If one takes the Israel Hezbollah analogy once again, I wonder whether anyone would argue that the conflict between Israel and Hezbollah was non-international.

    Finally, I wonder whether it is possible to argue that a conflict between a State (the US or say Israel) and a non-State group (Al Qaeda or Hezbollah) which is fought primarily outside the territory of the State is governed by customary principles of IHL based on the GCs. In other words, even if it is argued that such a conflict is not textually governed by the GCs because one side is not a State, the conflict is still governed by the customary principles that apply to international armed conflicts.

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