02 May The Real War on Terrorism
Critics of the U.S. war on terrorism often suggest that it is not a “real war” and that it is merely a slogan. Indeed, many critics reject the “war” paradigm completely. That’s a fair argument, but it is worth remembering that there are traditional war-like aspects of the war on terrorism that don’t neatly fit in the law-enforcement paradigm usually favored by the critics. Case in point: the U.S. government’s airstrike yesterday in Somalia killing an Al Qaeda leader there. If the U.S. was not engaged in a “war”, what could possibly be the legal justification for such a strike, either under international law or domestic U.S. law? Such actions, which are largely uncontroversial in the U.S. and even abroad, need to be explained under some legal paradigm. War may not quite capture what is going on, but it comes close.
Does it really need to be explained “under some legal paradigm?” Isn’t it quite possible that no such legal paradigm exists? In which case it would be extra-legal or perhaps illegal. Or do you mean some hypothetical, proposed or possible future legal paradigm?
In any case, is it really true that such actions are “largely uncontroversial?” When innocent civilians become victims? When it’s discovered those targeted were not present at the bombing site? And so forth and so on. Largely uncontroversial perhaps to those with their heads in the sand, or safely ensconsed at their desks and dining tables, but I suspect for those on the ground who (living in a world vastly different in many respect from that of you and I) have nothing whatsoever to do with terrorism and yet risk becoming part of the statistics of “collateral damage” (a risk made palpable with knowledge of past victims) because of their unfortunate socio-economic and geographic circumstance, such things are hardly “uncontroversial.”
Any “Global War on Terrorism” is a slogan. However, the US is engaged under the AUMF in a war with “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”. This is a John Doe declaration because at the time it was written the US did not know who was responsible. Today we know the attack was carried out by a special operations unit under the command of KSM and his superior officers Mohammed Atef and then Bin Laden and the Shura Council of al Qaeda. It was also approved by Mullah Omar and the Taliban, the government in control of Afghanistan. None of these forces have surrendered, signed a peace treaty, or been destroyed. They are still in the field in Afghanistan fighting NATO troops. Now I have argued that this was an attack by the Army of Afghanistan authorized by the (unrecognized) Government of Afghanistan. That would make it a regular war just like every other war. Others claim that al Qaeda is an “organization”. The problem is that the government of the time was based on tribal and religious structures… Read more »
First of all, it is highly questionable if “war” is still a legal paradigm at all. It has certainly lost a lot of traction, in that the modern jus ad bellum refers to acts involving a “use of force” (and not to “war”), and the modern jus in bello applies in “armed conflict” (and, again, not in “war”). But, however that may be, no statement to the effect that the US is “engaged in a war” could possibly provide any legal justification, either for any use of force in the sense of Article 2(4) of the Charter, or in any other sense (disregarding for a moment the possibility of a derogation from the ICCPR under its Article 4 – which is not openly dependent on any state of “war”, and which in any event has never been declared). For present purposes of the attack in (arguably: on) Somalia, the use of force is either lawful or unlawful under the law of self-defense (assuming Somalia to be under the protection of Article 2(4) of the Charter status-wise), but nothing turns on any concept of “war”. The word “war” may still have some legal significance under the US Constitution, but that is… Read more »
Thanks Tobias: You gave legal form to my layman’s intuitions.
The Security Council agreed that the US was attacked on 9/11. NATO agreed. We were attacked by a unit of an enemy army in an enemy country ruled by a government that had declared war on the US. That government is now in exile, but the enemy forces are still in the field.
There are different rules for starting a war against a country than the rules for expanding that war when the enemy force cross boarders. The British, for example, sank the French fleet after they surrendered to Germany. US forces engaged the French in the first days of Operation Torch in North Africa. In neither case did anyone claim that Vichy had provided jus ad bellum, but there was a bigger war going on and France was effectively occupied by the enemy. During WWI the allies (including the US) invaded Russia at Archangel after it withdrew from the war. They attempted to intervene in a civil war, just as Somalia is in civil war today.
Historians have debated these issues for decades, but this is simply an academic exercise and has no impact on the real world.
Most of the critiques of deeming the “war” on terror a war in the legal sense stem from a traditional understanding of the rules of war and how armed conflict gets defined. But this inevitably runs into difficulties as the kind of threat posed by al Qaeda and other so-called “new” terror organization do not fit the old paradigms and models. Remember Justice O’Connor’s warning in her opinion in the Hamdi case: while the Court found that the laws of war allowed the indefinite detention of combatants seized on the battlefield, she warned that “if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” The threat posed to states by international terrorism is of a nature entirely unlike the traditional state-on-state war (or even intra-state wars like civil wars and rebellions) that the laws of war developed to regulate, and thus the laws of war need to adapt to adequately account for the new type of conflict. That doesn’t in and of itself justify or legitimate a targeted killing/assassination, but it certainly means that we need to think carefully about the nature… Read more »
HowardGilbert,
is your point that the existence of a “war” is still an important question in that it may allow warring parties to extend the hostilities to states supporting their enemy, etc.?
If so, why would that meaning of “war” not have been replaced by the notion of an armed conflict?
Of course back to the time of the Romans there were wars with private men. See Grotius.
Best,
Ben
Ben, what you say is not entirely true. Yes, there have certainly always been conflicts between states and various non-state actors. That does not mean, however, that these were ‘wars’ in any (international) legal sense. There can be no doubt that the concept of war in international law, such as it was and such as might continue to exist, dealt only with conflicts between two sovereigns, who were subjects of the law. That is crucial, since, in the absence of war in the legal sense the law of war would not apply. (See, e.g., Greenwood ‘The concept of war in modern international law’ (1987) 36 ICLQ 283–306) However, as Tobias pointed out, the threshold criteria for the application of the modern law of war is no longer ‘war’ as such, but either international or non-international armed conflict. If the ‘global war’ against Al Qaeda does not fit either of these two criteria, the law of war simply cannot apply, period. Now, a further question, posed by Seth Weinberger, is whether the law of war should indeed adapt to cover this supposed new type of conflict, as the law of war has in fact always adapted throughout history. I remain entirely… Read more »
I feel like an old Rodney Dangerfield joke. An advisor was telling Rodney Dangerfield that his name was his problem with getting respect.
“Rodney Dangerfield: My name? What’s wrong with my name? What’s in a name? Didn’t William Shakespeare say “A Rose by any other name smells just as sweet?”
Advisor: Who?
Rodney Dangerfield: William Shakespeare – you know – the great playwright and poet.
Advisor: Oh. Listen. You going to listen to your friend Shakespeare or you going to listen to me?”
Don’t listen to me – listen to Grotius.
Best,
Ben
With the greatest respect to Grotius, I would suggest he was talking about natural law, rather than international law in any sense that we would recognize today. If that is the case, of course he is quite right. The essence of natural law is that it applies equally to everyone, whether a state or a person. His notion of “war”, therefore, must really have been a notion of “force”, without any restriction as to the one using it or the one against whom it is used. Hence also the natural law arguments on self-defense (which are still sometimes cited). These are very frequently in the form of “as a man may be entitled to use force when his neighbour is about to attack him, so also a state….” I have always been fairly sceptical as to the usefulness of natural law in today’s legal discussion. That may be because I have been told weeks after beginning my studies in law that there was no such thing as natural law. But be that as it may, I really don’t see how Grotius’ point that we may conceive of “war” between parties of any kind as a natural phenomenon has any bearing… Read more »
Theory aside, during WWII a collection of armies in exile gathered in Britain and took part, in various degrees, in the liberation of Europe. The most prominent were the Free French under deGaulle, but the 1st Polish Brigade took part in Operation Market Garden. Since both France and Poland were occupied at the time, how can you say these were units of a national army. Yet they were recognized as such by the United Nations (as the allies called themselves). The thing about international law is that lots of people go around making up rules that simply don’t exist, and they would know that if they studied a bit of history. A larger problem, however, is that “international law” as we understand it is really white, European, Christian, colonialist law since we didn’t invite anyone else to sit at the table when we made it. Certainly the Chinese found that out in the 19th Century. There is another “international law” that our enemy follows. It ruled the lands between Indonesia and Spain for a thousand years, and is still widely followed today. It is Shari’a, and according to it the world is divided into the Dar al-Islam and the Dar… Read more »
To get a better sense of why a “war on terrorism” is so misguided one might read Louise Richardson’s What Terrorists Want: Understanding the Enemy, Containing the Threat (2006). Consider the following: “The problem with a declaration of war is that warfare conjures up notions of victory and defeat. Yet, as was obvious at the time [in Afghanistan] and as we have begun to realize since, it is very difficult ever to declare victory in a war on terrorism or terror, much less evil. [….] If victory means making the United States invulnerable to terrorist attack, we are never, ever going to be victorious. Here’s why casting a conflict in terms of a war one cannot win is a big mistake. By dispatching any operative into any Starbucks, subway station, or shopping mall in the country and blowing it up, a terrorist group could demonstrate that the most powerful country in the history of the world has not been able to beat it. This is making it much too easy for the terrorists. Terrorists want to be considered soldiers at war with an enemy. Most aspire to garner enough support for their cause that they can, one day, field a… Read more »
I did not say that Islam was monolithic or even that a sizable group believed the same things as “those who believe as Bin Laden.” I was only interested in the belief of the enemy. You cannot make strategy in a war without understand the motivations and objectives of those you fight. The Taliban and al Qaeda share a specific doctrine. You have to take seriously the notion that they take it seriously. Bin Laden actually expects to destroy or convert the US to Islam. That is a pretty big objective. The IRA never expected to destroy Great Britain. No terrorist organization has ever had such plans. So experience with real terrorist groups will not be helpful in this conflict. Bin Laden used terror, but to achieve a military objective. He mistakenly assumed that after 9/11 the US would send heavy armored units to invade Afghanistan along the same narrow mountain roads that the Soviets used. Then he believed that Islam would rise up and the US army would be destroyed just as the Soviets had been defeated, and then US power would crumble just as the Soviet Union had collapsed. It would have been a longshot, but he had… Read more »
Ah we are cursed by our first courses. Natural law (religious or rational basis) as a source was the way I was introduced to international law. Maybe, also, the Natural Law foundation of the Declaration of Independence seeps into me.
On Islam, I understand from discussions that the central tenet is “Nothing is to be worshiped in truth but God.” from Muslims I have met here from Egypt, the Palestinian Authority, and Iran. I think we risk doing the confusion of religion and politics game here.
Also, maybe international law and politics game too.
Best,
Ben
“I did not say that Islam was monolithic” Cf.: ‘There is another “international law” that our enemy follows. It ruled the lands between Indonesia and Spain for a thousand years, and is still widely followed today. It is Shari’a, and according to it the world is divided into the Dar al-Islam and the Dar al-harb, the House of Islam and the House of War.’ HowardGilbert: You might read the London Review of Books essay by Charles Glass, “Cyber-jihand,” Vol. 28 No. 5, 9 March 2006: “Bin Laden’s utterances, beautifully translated by James Howarth and well edited with informative footnotes by Lawrence, prove a better guide to his intentions and Weltanschauung than the same words mediated by CNN anchors and New York Times columnists. He does not appear to be deranged, as his detractors insist he is. His message is plain: leave the Muslim world alone, and it will leave you alone. Kill Muslims, and they will kill you. ‘America won’t be able to leave this ordeal unless it pulls out of the Arabian Peninsula, and it ceases its meddling in Palestine, and throughout the Islamic world,’ bin Laden told the al-Jazeera correspondent Taysir Alluni six weeks after the 11 September… Read more »
Erratum: “…that Richardson knows what she is talking about.”
Only the caliph (Sunni) or Mhadi (Shia) can initiate an aggressive jihad. Thus Bin Laden is constrained to create a theory of defensive war against asserted aggression. Legally he must offer in his declaration of war the alternative of peace if the Ummah agrees to either convert to Islam or cease what he considers aggression. Now let me try to get back on track. Afghanistan is a country that signed the Geneva Conventions. The government in control of that country from the late 90’s to 2001 was the Taliban. Omar was the leader. Bin Laden held a position that makes sense in theocratic but not Western theories of government. They declared war on the US using Islamic forms and rules, not those of the West. They attacked the US on several occasions. Some attacks (the African embassy) were cleary terrorism and some (the USS Cole) were clearly ordinary military combat, but the US called it terrorism anyway. After 9/11 the US continued the rhetoric of terrorism while adopting the policy of a real war against a real country. We sent military forces that defeated their army and drove them across the border into safe havens in Pakistan, but they continue… Read more »
I just want to point out that the information in P.S. O’Donnell’s last post is inaccurate. Al Qaeda has made it clear that one requirement for peace with the United States is for the US to adhere to Islam. Another tenant is the re-establishment of the caliphate, which they define as, inter alia, an Islamic state in Southern France and parts of Australia.
One aspect of the Geneva Convention adherence in a war purely between Muslim countries was talked about in January at the AALS by Marco Sassoli. He spoke of the treatment of POW’s by both sides as being a Geneva Convention success in the Iran-Iraq War. Obviously there was the chemical weapons stuff of Saddam (with our help as many have detailed), but I am just trying to point out that even assuming two types of international laws of war, the battlefield realities of those different histories seem to have been able to coalesce to something similar in that the states involved in this matter appeared to comply to this extent with the Geneva Conventions. To that extent we can have two systems which in fact have common themes. Sort of like British, American and Indian English – many things that are common and universal but also not a perfect match – thus debates about what has become customary international law. I do not yet really see a problem with Howard Gilbert’s vision of Al-Qaeda in the context of Afghanistan in this war. I tended to think it a little more complicated in the sense that some parts might be associated… Read more »
Anon:
I’m open to persuasion by evidence, none of which you cite. (And I suspect you mean ‘tenet’ not ‘tenant.’)
It is Shari’a, and according to it the world is divided into the Dar al-Islam and the Dar al-harb, the House of Islam and the House of War. Let first clear some manipulations here. In history any society ruled had some sort of religious system/ rules and social council, also in same time had some sort of military/ war infrastructures and councils represent the defence structure. As for Islam Empire Dar-Islam was like a ministry deals with social religious matters at that time, for Dar-Alharb was concerned for all the preparations of war and defence of empire, so it’s like ministry of defence. If some trying to play in words and playing their may I say their “hate” of Islam let take the hates from the mind and let’s be honest when putting the words. In our time all the countries and empires had similar more complicated and wide establishments of what Islamic empire did, but let go to the basis, OBL he is criminal how many follow his words and his massage this is the question. Is not really and doubtable that he can move 1.3 billions of Muslims, coundnot be considered he is a leading for Muslim people… Read more »
P.S. O’Donnell,
Just do a Google search for “Al Qaeda” and “conversion to Islam.” There are a plethora of articles, including those from the NY Times regarding a video from Ayman al-Zawhari.
Seriously, why is this an issue with you? Al Qaeda has made this demand!
To return for a moment to the original post of Prof. Ku, simply because the military strikes have not generated much contorversy in the U.S. (and I am not sure it can be safely said that they are uncontroversial abroad), does not support the inference that they are therefore lawful or justifiable under international law. Under the traditional understanding of jus ad bellum the strikes would constitute a use of force in violation of Art. 2(4) of the U.N. Charter, and it would be very difficult to see how they could be justified within the rubric of self-defence provided for in Art. 51. How does the assertion that the U.S. is “at war”, or “in a war with global terrorism” advance the legal analysis of whether the strikes were lawful under jus ad bellum? Why isn’t the “legal paradigm” that explains U.S. actions simply the traditional one of jus ad bellum, pursuant to which U.S. actions would be explained as constituting unlawful aggression. It seems to me that those who would assert that the strikes were not unlawful have the heavy burden of demonstrating precisely how the law has actually developed so as to provide a justification for missile strikes… Read more »