Is There Really a War on Terrorism Outside of Afghanistan? You Betcha!

by Julian Ku

Critics of the U.S. war on terrorism often deride it as a bad metaphor or an excuse to conduct controversial detentions, interrogations and military trials.  But what the Pentagon refers to as the “Global War on Terrorism” (GWOT) has many of the characteristics of a typical armed conflict, even outside of the main battlefield in Afghanistan.  As the NYT reports:

The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.

These military raids, typically carried out by Special Operations forces, were authorized by a classified order that Defense Secretary Donald H. Rumsfeld signed in the spring of 2004 with the approval of President Bush, the officials said. The secret order gave the military new authority to attack the Qaeda terrorist network anywhere in the world, and a more sweeping mandate to conduct operations in countries not at war with the United States.

In other words, there really is a global war on terrorism – it really is going on in places outside of Afghanistan – and it really is an international armed conflict.  U.S. military forces are killing enemies (and probably) dying, they are detaining people, and they are probably interrogating people.  And this war is not going to go away simply because the U.S. has elected a president whom the world seems to like.

As a matter of U.S. law, there seems little doubt that these military raids are explicitly authorized by the Authorization for the Use of Military Force (Sept. 11 Resolution). And the U.S. President arguably has a certain amount of inherent constitutional power to conduct such raids as well.  But the question is much harder to answer as a matter of international law – indeed, it would have to be some theory of preemptive self-defense.  Expect to see denunciations of these raids from international lawyers in the next few days, as well as from foreign governments on the list of countries named in the order.

As a policy matter, thought, this seems by far the least controversial aspect of President Bush’s conduct of the war on terrorism.  In 2004, Democratic candidate John Kerry promised to double the budget of U.S. Special Forces presumably to carry out just these sorts of attacks.  And, President-elect Obama seems to have endorsed similar attacks into Pakistan.

But if President-elect Obama expressly embraces this sort of policy, will he continue to enjoy the worldwide adulation he is currently basking in? Will his “soft power” start eroding as he exercises U.S. hard power?  No doubt it will.  And will his fear of losing “soft power” lead him to back away from what seems like a justifiable and even necessary policy?  Will he include this part of the war on terrorism in his other plans to rollback Bush policies?  I wonder if this leak is designed to force him to make, and reveal, what choice he is going to make.

http://opiniojuris.org/2008/11/10/is-there-really-a-war-on-terrorism-outside-of-afghanistan-you-betcha/

11 Responses

  1. No, Julian, you are not correct. I betcha that non sequitur is not a legitimate form of legal reasoning. That the US is using targeted killings in Syria, Pakistan or Somalia does NOT mean that these are all part of single armed conflict in the sense of IHL, and certainly not an armed conflict of an international character (IAC). IACs are by definition conflicts between states, as set out in Common Article 2 of the 1949 Geneva Convention, the only deviation from that being conflicts between states and peoples fighting for self-determination, as set out in the non-customary provision of Art. 1(4) of Additional Protocol I to the Geneva Conventions (the inclusion of which incidentally the US strenously opposed).

    There is absolutely no way that you can argue that the GWOT qualifies as an IAC. That has been confirmed not only by the ICRC and bleeding heart IHL scholars, but also by the US Supreme Court in Hamdan. Moreover, not even the Bush administration is now arguing that the GWOT is an IAC — they have now adopted the (in my view mistaken) Hamdan position that it is a Common Article 3 non-international armed conflict (NIAC). You might argue that there is a new customary type of transnational armed conflict or whatever, but it is certainly not an IAC.

    IHL might apply to some of these situations, but each of them is separate. One could say, for example, that there is a separate NIAC in Pakistan, and that there was a separate IAC between the US and Syria, when the US attacked Syrian civilians. These truly are very complex issues. But the only answer that is most certainly not correct is the one which you offer, that is that all of these incidents are part of one big, single IAC.

    At any rate you also conflate the legality of the US actions under the jus ad bellum and the jus in bello. To take the strikes in Pakistan as an example, my understanding of the facts (which might be completely wrong) is that Pakistan gave persmission to the US to operate its drones there. If so, a jus ad bellum issue does not arise, but there still might or might not be violations of the jus in bello. Syria certainly poses a jus ad bellum issue, but there the US justification might not be preemptive self-defense, but self-defense against an armed attack that was already committed by a non-state actor operating from Syrian territory, which Syria failed to prevent. In any case it is hard to say more about these events without knowing much, much more about the actual facts.

  2. In addition to what Milan has written, I guess even in the case of an armed attack from non-state actors from within a country like Syria, USA would not have the permission to operate against these individuals within the Syrian territory.I don’t think International Law would deem such an incursion as totally justified, as long as the country concerned approves such an operation.
     Also the term “hot pursuit” on land is not something accepted by the majority of the IL experts, though I know USA, Israel and Turkey referred to the term as justification of their cross-border operations.
     This is a very thorny issue, which USA had to discuss with Turkish authorities regarding PKK, which operates from its bases in Northern Iraq. During these I had the impression that USA was totally against a Turkish operation into the region.

  3. Aside from the arguments about legality and legal reasoning here, I would like to submit this quote as food for thought in our discussion of these issues, as a reminder of the stark realities of war that I and many other people sometimes forget because of the abstract nature of theories and justifications:

    “Beyond the futility of armed force, and ultimately more important, is the fact that war in our time inevitably results in the indiscriminate killing of large numbers of people. To put it more bluntly, war is terrorism. That is why a ‘war on terrorism’ is a contradiction in terms.”
    – Howard Zinn

  4. Hi Julian,

    Unlike the other commentators, I would say that you’ve come up with a good description but probably not completed it. No surprise, I hope; it seems to me that you’re trying to start a conversation. Your critics seem to want to have a different conversation, one that largely ignores reality.

    That said, we’ve a lot more work to do to define what GWOT is and what GWOT should be. I’m working on it, too. If you want to continue the dialog in non-flamy land, drop me a line.

    Best regards,
    Jim

  5. Julian,
    I very much agree with Marko’s comments.

    Labelling the so-called GWOT in any legal terms is a challenging task (I still believe the term is little more than a rhetorical device), particularly so when it comes to applying the ILOAC. Just because a situation (or a cluster of situations, which is the case here) looks like an ‘international armed conflict’ or has some characteristics thereof, it doesn’t mean it actually is an IAC or any AC (in terms of ILOAC) at all for that matter. 

    Some situations in the context of or arising out of military counter-terrorist operations may amount to an international armed conflict, some may amount to a non-international armed conflict (I believe that under common Art 3 all “armed conflicts” that are not international in terms of Geneva law are perforce non-international as long as they reach the ‘armed conflict’ threshold at all), but most such situations will not amount to an “armed conflict” at all. With respect to the non-int’l AC, sporadic and “surgical” counter-terrorist operations might often lack the intensity element and the element of a certain level of “organization” within the non-state entity involved in the confrontation and might not cross the threshold of an ‘armed conflict’ at all.

    It is important to keep in mind that, as Marko already pointed out, the factual situations discussed here should be viewed separately, not just geographically, but also within the same theatre of operation. This is to say, different armed conflicts may mix in the same complex “situation” (think about the Balkan conflicts). For example, fighting btw the US forces and Syrian forces and associated irregular forces would be an IAC, while fighting against “independent” irregular forces in Syrian territory would not be an IAC under any interpretation of common Article 2 of the four Geneva Conventions. It is hard to see how any situation in the context of contemporary US counter-terrorist operations could amount to a “national-liberation war”, even if the US was a party to AP I.    

    On the other side, killings, abductions and detentions of suspected terrorists could take place in the context of an existing IAC between the US and other state belligerents, but this is apparently not what has been discussed here. Fighting between US forces and independent irregular forces as such cannot be classified as an IAC.

    On this point, I would also argue, contrary to Marko’s view, that it remains unclear whether a single isolated US attack on Syrian civillians on Syrian territory would automatically amount to an IAC - it seems to me that state practice on this issue is not conclusive.  

    At any rate, when targetted killings, detentions, interrogations and other actions in the context of the fight against terrorism take place outside of an AC situation, the legality of conduct in terms of international law is determined by the (generally more restrictive) HR (and other applicable peacetime norms), not ILOAC standards.

    Whether such actions may be carried out extraterritorialy, i.e. in the territory of another state, is a question of jus ad bellum, not ILOAC, as Marko likewise rightly noted and the two regimes on the use of armed force should not be conflated. The ILOAC may or may not apply regardless of the jus ad bellum questions.

    I think that in terms of jus ad bellum, the US president would have a harder task than just coming up with “some theory of pre-emptive self-defence”. The doctrine of pre-emptive self-defence is highly controversial and far away from being widely supported either in legal scholarship or, even further so, in state practice. Besides, in the situations described in this entry, the issue would not be just the legal value of the “pre-emption” claim and the question of whether the case for pre-emption (the meaning of which itself is highly contested) exists in a given situation, but also the problem of the nexus between the raided state and the non-state entities (suspected terrorists or any other), the attributability issue, etc. In this context, the further doctrine of “hot pursuit” has been equally contested, although perhaps less loudly opposed in recent practice. I my opinion it is too early to say whether this amounts to its tacit acceptance in terms of evolution of a new customary norm, particularly in light of the jus cogens nature of Art. 2(4).

    On the other side, when there’s a consent (and the foreign action is taken in accordance with that consent), there normally will be no violation of sovereignty and thus, as also noted before, no jus ad bellum issue would arise.

    As for the high expectations of complaints pouring in from legal and diplomatic circles, I wouldn’t be so “optimistic”. These counter-terrorist or counter-insurgent raids are really nothing new, save perhaps for their frequency and intensity, yet, I’ve not heard all that much complaining in the recent years. Not just when it comes to the US “war on terror” but also with respect to some other countries’ extraterritorial counter-terrorist operations.
    Just a bunch of brain-storming thoughts from my side. But these are highly complex and challenging questions which should actually be discussed more intensely than they currently are.

    Greetings,
    Dominika.

       

  6. Reality Jim?

    The reality is that you folks can’t handle an honest discussion, and run for cover any time anyone tries to start one or question your premises.

    This is about alibis and pretexts, not reasoning or law — the Global War on Everything in General and Nothing in Particular is pure insanity to whatever extent it isn’t merely a fraud, and the record of the last seven years doesn’t suggest that you Republicans are exactly thinking clearly about the problems.

    Flame?

    Ha: facts are facts, and you people are advocating crimes against both peace and humanity. You should all be ashamed of yourselves.

  7. I have to admit, I’m always impressed how heated people get over international law…

    But more to the point, does the US government actually use this policy as a matter of fact, or is it more theoretical, where everyone says we do it, but in reality we still get permission from the country’s government (such as it is), especially when going after non-state-sanctioned actors?

  8. Oh, I don’t think there’s much doubt they’ve been doing such things — that’s part of what gets me heated. It’s bad enough they commit indiscriminate crimes against civilian targets and acts of war, but then they can’t resist the urge to cackle about it in public for the sake of pandering to their constituents and preening about how tough and resolute they are, blah blah.

    They’ve been at it for seven years now. How are they doing?

    Julian calls facts metaphors, metaphors facts, and describes attacks that haven’t been launched by his political opponents as “similar” to those that were carried out by his political friends.

    Ha ha — an attack is similar to an attack, a rape is one type of an attack, and shooting a rapist to stop a rape is another.

    And raping Iraq to stop an attack that Iraq could not have launched even if Saddam had been crazy enough to want to is just another day at the office for Julian and the gang.

    All that’s really going on here Elena is that Julian is playing a game his buddy John Yoo taught him, and it’s a very old game indeed. In the Judeo-Christian-Islamic tradition, it was invented by Cain.

  9. Charles,

    Just a suggestion: more argument, less invective. I disagree with Julian about most things, often vehemently. But you just continually parody his arguments instead of addressing them. The Bush administration has committed numerous war crimes — we get it (and I agree). How about a legal argument every once in a while?

    Kevin

  10. Well Kevin, I’m just fed up with this particular topic after the last seven years, and much as I appreciate most of the folks on this blog, Julian is a serial offender.

    Like what legal arguments does he actually offer?

    He’s just playing word games.

    My legal arguments couldn’t be any more clear: the US government has no authority to commit crimes against the laws of the United States, which includes such things as the IMT Charter and 18 USC 2441.  There is nothing in the US Constitution that would authorize the President to operate like Joseph Stalin or Adolf Hitler, nor anything that would permit the Congress to authorize such conduct. Such things are ultra vires.

    I’ve heard all the arguments on the other side, but have yet to hear an honest one, and it’s never actually about the law, but about how this or that law doesn’t apply because of this or that fallacious argument, and / or how some vaguely worded abomination like the AUMF bestows all the powers enjoyed by Charles I or Caligula, and / or how the Constitution does this or that because of all these silly Feddy doctrines about original meaning and textualism etc.. Some of it makes sense in it’s proper context, but all of it is just sophistry in this one.

    Parody is just the kindest thing I can think of.  I’ll debate Julian or his pal John Yoo on the law any time either one them finds the courage to risk being embarrassed in public by a layman.

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