D.C. Circuit Rejected “Co-Belligerency” in Al-Bihani

by Kevin Jon Heller

In its motion to dismiss the ACLU/CCR targeted-killing lawsuit, the government claims (p.5) that Al-Aulaqi can be lawfully targeted because Al Qaeda in the Arabian Peninsula is “an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda” (emphasis added).  In my previous post on the lawsuit, I argued that there was no justification for the government’s attempt — backed (and perhaps inspired) by conservative scholars like Bradley and Goldsmith — to import the concept of co-belligerency into non-international armed conflict.

I didn’t realize when I wrote my post, but the D.C. Circuit reached the same conclusion in Al-Bihani.  Indeed, it described the idea that co-belligerency applies in non-international armed conflict as “folly” (p.11; emphasis added):

Al-Bihani… [argues] that the 55th Arab Brigade was not lawfully subject to attack and detention. He points to the international laws of co-belligerency to demonstrate that the brigade should have been allowed the opportunity to remain neutral upon notice of a conflict between the United States and the Taliban. We reiterate that international law, including the customary rules of co-belligerency, do not limit the President’s detention power in this instance. But even if Al-Bihani’s argument were relevant to his detention and putting aside all the questions that applying such elaborate rules to this situation would raise, the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE § 74 (1906). The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.

This is absolutely correct — and stands in marked contrast to Judges Bates’ willingness to rely on co-belligerency to uphold the detention of the habeas petitioners in Hamlily, a decision that includes the remarkable statement (p.16 n.16) that “[l]ike many other elements of the law of war, co-belligerency is a concept that has developed almost exclusively in the context of international armed conflicts.  However, there is no reason why this principle is not equally applicable to non-state actors involved in noninternational conflicts.”  (Apparently, U.S. courts only correctly interpret international law when doing so leads to the rejection of a detainee’s claim.)

Given the D.C. Circuit’s conclusion in Al-Bihani, why is the government still relying on the discredited notion of co-belligerency in Al-Aulaqi?

http://opiniojuris.org/2010/10/17/dc-circuit-rejects-co-belligerency/

6 Responses

  1. Currently the US and various other nations have supplied military units to the NATO armed forces in Afghanistan. They are there as allies in an armed conflict between the US and the Taliban triggered by the 9/11 attack.

    Suppose, however, the US were to attack the nuclear facilities in neighboring Iran. That would create a new armed conflict between Iran and the US to which the other nations supplying troops in Afghanistan would not be a party. Under the international laws of co-belligerency, just because those nations supplied forces to join the US in one armed conflict does not make them part of any other armed conflict to which the US is also a party.

    During WWII although the US was allied with Britain and Russia against the Germans, up until the last months of the war the Russians were technically neutral in the armed conflict between the US and Japan. The fact that Japan and Germany were allied Axis powers and that the US and Russia were allied United Nations powers did not automatically trigger a war between Russian and Japan.

    Now one detainee claims that the 055 Brigade of volunteer foreign fighters was entitled to be notified of the outbreak of new hostilities between Afghanistan and the US and to be given the same right to declare neutrality in that conflict that members of the other NATO countries would have should the US become involved in a separate war against a different country.

    That the DC Circuit indicates that members of a Brigade component of the Afghan Army composed of foreign volunteers is not entitled under international law to the same rights to declare neutrality in a new conflict that would be afforded to a Brigade of a foreign co-belligerent state simply indicates that members of the 055 Brigade were members of the Army of Afghanistan under the Taliban and not members of some other army.

    Thus the statement that “the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states” says nothing about whether non-state parties can or cannot be co-belligerents in a non-international armed conflict. Rather it says that the rules that apply to joint military operations involving the mixed forces of co-belligerent nations when one of those nations becomes involved in a new armed conflict do not apply to individual Brigades within the national army of a state when that army starts a new armed conflict, even when that Brigade happens to be formed out of foreign volunteers.

    The DC Circuit was not saying that the 055 Brigade could not be a co-belligerent because it was part of a non-state party. The Circuit said that the Brigade could not be a co-belligerent because it was an integrated part of the enemy army. Put another way, a decision that the French Foreign Legion is part of the French Army and is not a separate military force entitled to declare its own neutrality also provides no information one way or the other about whether AQAP and AQ are part of a single armed conflict with the US.

  2. No, the DC Circuit said that co-belligerency does not apply to a non-state actor in NIAC.  The quote speaks for itself.

  3. Kevin,

    As I stated in our previous exchange on this topic, I think an analysis of state practice regarding the nexus or level of affiliation between (or organization of) like-minded non-state actors in non-international armed conflict is needed.  For example, we called the various anti-Taliban groups in Afghanistan the “Northern Alliance” and basically treated them as one entity.  Were they?  Did the various warlords have a common purpose or only a common enemy?  Did the answer to that question matter for purposes of Taliban targeting (or, if they bothered, detention) decisions?

    As for why the government is still advancing this theory in spite of the Kavanaugh/Brown/Williams opinion, quite obviously the phrases you quote are non-binding dicta.  The various opinions issued in the course of the denial of rehearing en banc makes this clear.  The majority of D.C. Circuit court judges thought the Kavanaugh/Brown/Williams panel’s discussion of the inapplicability or irrelevance of international law was dicta.  The panel’s responses to that statement indicate that they truly believe international law is completely or largely irrelevant.  With all that being the case, who really cares what the panel said about the substance of international law on this point?

    Finally, and importantly, the concept of neutrality implicitly articulated by the phrases you quote seems misleading or oversimplified.

  4. John,

    That is exactly my point.  Bradley, Goldsmith, and Judge Bates have provided literally zero non-U.S. opinio juris or state practice for the idea that co-belligerency applies to non-state actors in a NIAC.  They simply claim that it does, as indicated by the quote from Judge Bates’ decision. Can you imagine what the U.S. response would be if another state reached a legal conclusion contrary to U.S interests by cavalierly deciding that there was “no reason” not to apply an IAC-specific rule to NIAC?

  5. Kevin,

    So then it would appear that the courts must engage in Paquete Habana-like analysis of the issue in response to the government’s claim.  We cannot dismiss the claim outright.  I would simply say that the concept of, or breadth of the term of art, “co-belligerency” is not the entire universe of the analysis needed.  Judge Bates doesn’t necessarily agree with the applicability of the term, only of the “principle” it generally describes.  On that point I tend to agree.  Whatever one calls it, it would seem to be the case that at least some like-minded, non-state actors are sufficiently affiliated or unified in purpose to be treated as one entity — or at least equally involved — in an existing armed conflict.  This eliminates the need for an entity-by-entity analysis of the existence of armed conflict.

    Let’s also keep in mind that the “conservative” view is that all of this international law stuff only “informs” the nature of authority granted by the AUMF; it doesn’t define or delimit it.  Thus, we have general and substantial powers without only vague (maybe even nonexistent) limits.

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