Goldsmith Responds About “Co-Belligerency”

by Kevin Jon Heller

Jack Goldsmith has responded to my post about the D.C. Circuit’s rejection of co-belligerency in Al-Bihani.  It’s an interesting response, worth a few additional thoughts.

To begin with, it is important to note that Goldsmith does not respond to the substance of the panel’s criticism of the idea that state-centered notions of co-belligerency can be applied to non-state actors in NIAC. Recall what it said:

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.

It can’t be pleasant for Goldsmith, one of the primary architects of the co-belligerency rationale, to see his position described as “folly” by a panel of the D.C. Circuit.  So I would hope that, at some point, he would take the time to explain why it makes sense to analogize between states and non-state actors with regard to concepts such as neutrality.  I”m skeptical, but I’m certainly willing to be persuaded otherwise.

Instead of making that argument, however, Goldsmith simply points out — correctly — that the panel’s rejection of co-belligerency was dicta.  I did not argue otherwise.  Indeed, I chose my words carefully: I said the panel “concluded” that co-belligerency did not apply in NIAC, not that it “held” that it did not; and I said that, as a result, the argument was “discredited,” not that it was “rejected.”  The government remains perfectly free to continue to argue co-belligerency.  It is also under no obligation to make a substantive argument in defense of that idea.  But it is certainly my right to point out (1) that neither Goldsmith nor the government has ever explained why the state/non-state actor analogy is justified; and (2) that, dicta or not, a panel of the D.C. Circuit has described the analogy as “folly.”

Finally, I’m baffled by Goldsmith’s statement that my position may lead me to a place I don’t want to go, because “if the laws of war for NIAC are silent on an issue, the main alternative to arguing by analogy to IAC in interpreting the AUMF is to conclude that the laws of war place no limits whatsoever on the AUMF.”  That statement implies that when the laws of war — in IAC or NIAC — are not silent on an issue, they do in fact place limits on the interpretation of the AUMF.  But that is certainly not the US position, nor does it seem to be the position of conservative scholars like Goldsmith.  Both insist, for example, that the AUMF authorizes the targeted killing of anyone who is a member — to quote the government’s brief in Al-Aulaqi — of “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.”  The idea that the US is in a global NIAC with al-Qaeda directly contradicts the laws of war, which limit NIAC to specific areas in which hostilities reach a certain level of intensity.  Yet I don’t see the government or conservative scholars arguing that the AUMF should be interpreted to limit targeted killing to individuals who participate in the NIACs that are actually taking place in Afghanistan and Pakistan.  Nor do I see the government or conservative scholars arguing that the AUMF limits targeted killing to individuals who are either members of an “organized armed group” participating in those specific NIACs or otherwise directly participate in them, which are the only criteria consistent with the laws of war that apply in NIAC.  Those laws are not “silent” on the issue of who can be targeted, as Goldsmith suggests.  What they say is simply too limiting for the US’s tastes.  So the government and conservative scholars invent new ways to expand the category of individuals who can be “lawfully” targeted under the AUMF beyond the limits imposed by the laws of war — such as by arguing that an individual who does not fall into either of the traditional categories can still be killed at any time if he is a member of an organization that is a “co-belligerent” of a group involved in the (imaginary) “noninternational armed conflict between the United States and al-Qaeda.”  That is not interpreting the laws of war, by analogy or otherwise.  That is ignoring them.

I am fully aware, of course, that the US is going to decide for itself who it can “lawfully” kill and when it can “lawfully” kill them.  What I object to is the desire of the government and conservative scholars to minimize the political repercussions of their radical approach to targeted killing by appropriating — and distorting — the language of international law.  And let’s be clear: that is exactly what they are doing. It is no accident that the government and conservative scholars take the position that the AUMF is informed by the laws of war, not governed or limited by them. Doing so enables the US to pretend that it takes the laws of war seriously while still reserving to itself the right to ignore those laws when it finds them inconvenient.

6 Responses

  1. Kevin,

    1) If as you contend, the notion of co-belligerency in a NIAC was discredited by the panel’s opinion, why didn’t the panel’s opinion also discredit the notion that the LOAC act as an “extra-textual limiting principles for the President’s war powers under the AUMF”?
    2) Read in context, the panel’s opinion suggests that co-belligerency in a NIAC is folly because the the LOAC is less restrictive on states in a NIAC than in a IAC.  The panel suggests that entities such as the 55th Arab Brigade aren’t entitled to the protection of the co-belligerency doctrine and rules regarding neutrality because they aren’t nation states. 
    3) Your statement regarding the geographical scope of a NIAC conflates jus ad bellum and jus en bello.  Contrary to the position of some scholars, an armed conflict whether IAC or NIAC is not somehow limited to a fixed playing field.  Instead the conflict exists wherever the parties resort to hostilities.  This is consistent with the traditional understanding of the extent of the theater of war.   If the US resorts to hostilities through the targeted killings of Al Qaeda fighters in Yemen, then Yemen falls within the geographic scope of the NIAC and the law governing NIAC applies to these hostilities.  Whether the US may lawfully resort to force on Yemeni soil is a separate issue under jus ad bellum.

  2. If the US resorts to hostilities through the targeted killings of Al Qaeda fighters in Yemen, then Yemen falls within the geographic scope of the NIAC and the law governing NIAC applies to these hostilities.

    It is, in fact, you who conflates the jus ad bellum and the jus in bello — by assuming that whenever a states uses force against the territorial integrity of another state (jus ad bellum), that use of force creates an armed conflict to which the laws of war apply (jus in bello).  The two regimes are independent, and the latter is governed by objective criteria — the organization of the parties and the intensity of the conflict — not by the subjective intentions of states.

  3. Since you have twice quoted the reference to Volume 2 of Oppenheim, International Law: A Treatise, it seems reasonable to go to that source and find out what it has to say about belligerency, neutrality, and the locality of armed conflict.

    First, because it is the first topic covered in the book, on locality:

    “Region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other. In this meaning region of war ought to be distinguished from theater of war. The latter is the part of a territory or the Open Sea on which hostilities actually take place. Legally no part of the earth which is not region of war may be made the theater of war, but not every section of the whole region of war is necessarily theater of war” (70)
    It must, however, be specially observed that any part of the globe which is permanently neutralized, is always exempt from the region of war.” (71)

    Applying this to the current discussion, the current armed conflict has a theater of war in the AfPak area, but the region of war may extend to any location where AQ has substantial armed forces deployed. Thus AQAP may make Yemen part of the region of war, because its presence precludes Yemen from being actually neutralized, and once that happens the question of whether the US or AQAP turn it into an actual theater of war is a tactical decision not informed by international law.

    “76. The distinction between legal qualification and actual power to make war explains the fact that insurgents may become a belligerent Power. It is customary rule of the Law of Nations that any State may recognize insurgents as a belligerent Power, provided (1) they are in possession of a certain part of the territory of the legitimate Government; (2) they have set up a Government of their own; and (3) they conduct their armed contention with the legitimate Government according to the laws and usages of war. Such insurgents in fact, although not in law, form a State-like community and practically they are making war, although their contention is by International Law not consider as war in the technical sense of the term as long as they have not received recognition as a belligerent Power.”

    The treatise then specifically undermines the Bush/Yoo/Bellinger claim that the Taliban army consisted only of tribal militia and were therefore not entitled to be regarded as lawful combatants: “The Hague Regulations expressly stipulate in article 1 that countries where Militia or Volunteer Corps constitute the army or form part of it they are included under the denomination ‘Army’. It is likewise irrelevant to consider the composition of a regular army, whether it is based on conscription or not, whether natives only or foreigners also are enrolled, and the like.”

    In the context of the current discussion, the 055 Brigade was a Volunteer Corps of foreign born volunteers integrated into the Taliban main army force, and thus was part of the Taliban Army and not a distinct allied or co-belligerent force associated with some other State. That is why it was not entitled to notice or the right to declare neutrality. The laws of co-belligerency did not apply to it not because it wasn’t a separate State, but because it wasn’t even a separate armed force but just a unit in the Taliban Army.

    “296. As International Law is a law between States only and exclusively, neutrality is an attitude of impartiality on the part of States , and not on the part of individuals.”
    It is useful, then, to distinguish the quote from section 76 of the Treatise that shows that a non-state force can be declared to be a belligerent Power from the quote in 296 that only States can be declared to be Neutral. This means that the key sentence in the DC Circuit decision “the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states” combines two different questions that have different scopes. Belligerency, including co-belligerency, may apply to non-state parties, but “the choice to remain neutral” applies only to state parties. Thus this sentence cannot be properly read as it has been over and over to say that non-state parties cannot be co-belligerents, but only that they cannot be neutrals.

    So what precisely is the rule concerning “notice of war and the choice to remain neutral”?

    “307 Since neutrality is an attitude of impartiality deliberately taken up by a State not implicated in a war, neutrality cannot begin before the outbreak of the war becomes known. It is only then that third States can make up their minds whether or not they intend to remain neutral. … It has long been the usual practice on the part o f belligerents to notify the outbreak of war to third States for the purpose of enabling them to take up the necessary attitude of impartiality.”

    This distinction between belligerent Powers (who are not necessarily states) and neutral State is explicit in:

    “308. As civil war becomes real war through recognition of the insurgents as a belligerent Power, neutrality during a civil war begins for every foreign State from the moment recognition is granted.”

    Thus a State may be neutral with regard to a NIAC involving some non-state parties, yet at the same time those non-state parties to the NIAC may have risen to the status of belligerent Parties entitled to treatment under the Laws of War. However, there is no right of a non-state belligerent Party to declare neutrality with regard to any other armed conflict because neutrality is only a right of States.

    Thus the 055 Brigade or AQAP may be non-state belligerent  Parties subject to targeting and detention under the Laws of War, yet they may not be entitled to declare neutrality in some other armed conflict. That is all that the DC Circuit said, and none of that has anything to do with whether AQ and AQAP are part of the same armed conflict or whether the region of war extends to Yemen just because the theater of war has mostly be localized to AfPak.

  4. Kevin,
    Indeed, objective criteria do define the existence as well as geographic scope of an armed conflict.  Unfortunately for your position, the objective criteria flow from the subjective intentions of states.  If as a result of repeated attacks by a non-state actor resulting in the deaths of thousands, a state believes itself to be in an armed conflict and acts accordingly by claiming for itself the rights of a belligerent and resorting to hostilities which produce the requisite intensity of violence, well then there is an armed conflict.  Perhaps the state’s subjective intention leading to the recourse to hostilities is unjustified, but that is a jus ad bellum issue.

    Once an armed conflict extsts, the LOAC does not restrict hostilities to regions where intense violence is already underway.  If this were true that the recourse to hostilities was condition upon the prior existence of an armed conflice, then under jus in bello an armed conflict could never lawfully begin.  However, the initiation of hostilities is a question of jus ad bellum.

    Moreover, the notion that a non-state actor must possess a particular sort of organizational structure for a NIAC to exist is not only false, but endangers the relevance of the LOAC.  Entities such as Al Qaeda do not adopt traditional military hierarchies for the same reason that they do not wear uniforms. It is simply to their disadvantage.  Such is the nature of asymmetric warfare.

    Defining away such conflict away based on rigid adherence to formal organizational criteria will not therefore result in the extraterritorial observance of human rights law by major military powers.  Rather states will continue to respond to threats in lawless regions such as FATA and the Yemeni hinterland with military means, but will do so unchecked by any law.  The real choice is not between CA3 and the ICCPR, but between CA3 and no law. 

  5. Moreover, the notion that a non-state actor must possess a particular sort of organizational structure for a NIAC to exist is not only false, but endangers the relevance of the LOAC.

    Gary Solis (not exactly a lefty): “Terrorist attacks, if the terrorists have sufficient organization and if the attacks are sufficiently violent and protracted, may be instances of non-international common Article 3 conflicts.  If not sufficiently organized, and if the attacks are not lengthy in nature, they are simply criminal events.”

  6. Non-State Actor and Organisational Structure

    I suggest the disagreement is coming from the fact that each side is using slightly different terms. For a non-state actor to amount to an organised armed group, it needs to be a ‘group’ that is ‘organised’. But no particular form of organisation or structure is mandated.

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