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