The Armed Conflict with Al Qaeda

In the comments to my post below, Kevin argues against a certain view attributed to the US government on its non-international armed conflict (NIAC).  For what it’s worth … I have a very short paper, for a broad audience, footnote-free, and only 8,000 words that tries to outline the various positions that different folks have taken.  It even tries to be relatively neutral in stating them and seeks to give an account of how positions on the existence, duration, and geographic extension of armed conflict have shifted over the last decade.  Drawing on that, my understanding of the US government position is more or less as follows.  I’m not defending anything, I’m just trying to be clear on what I understand the USG view to be.  I’d welcome corrections as to the accuracy of the statement of the view; less interested in hearing at this point whether it is correct or incorrect.

The US has taken itself to be in an armed conflict with Al Qaeda since at least the AUMF, and possibly before that.  It does not believe that it is impossible to be in an armed conflict with a non-state actor, given that civil wars feature non-state actors and we have a regime of armed conflict addressing those cases.  The peculiarity is that the armed conflict is with a non-state actor that is not tied to the territory of a state, which is not entirely consistent with CA3, but not necessarily inconsistent with it, either.  The view that the US is engaged in a NIAC has been endorsed by all three branches of government, as the USG view of its situation under international law.  The foundation for the US resorting to force against Al Qaeda is international law of self-defense.  It has domestic roots in both inherent executive authority and the AUMF, with different administrations emphasizing different sources.  The resort to force, in response to attacks by AQ, have resulted in a NIAC governed by the law of non-international armed conflict.

NIAC has thresholds in customary law that make it distinct from international armed conflict under CA2 – intensity, etc. Leaving aside Afghanistan and spillover areas of Pakistan border region in which fighting clearly meets those criteria, a question is whether and how uses of force elsewhere in Pakistan, or Yemen, or elsewhere meet those criteria for a NIAC.  The administration’s view is that the war against AQ and any party under the AUMF is a single conflict, and it has extension in both time and space.  Once the conflict got underway, it’s not over til it’s over – the nonstate actors don’t get to call game off, game on – and those among them that are lawful targets can be targeted over time.  As for space, the conflict follows the lawful targets – no safe havens among the unable or unwilling sovereigns – and hostilities against them can be initiated at any time or place, at least among the unable or unwilling.  For purposes of the threshold of violence, however, my understanding of the US view is that all the various instance of attacks, uses of force, individual hostilities across many places over time are aggregated together – this being one enemy, under the view of the US as to whom it sees itself as fighting – into a single conflict.  Insofar as the actors are covered under the terms of those against whom the US has undertaken hostilities, then the armed conflict is one.

None of that is outside of an armed conflict paradigm, so that the attacks against Al-Aulaqi are part of the same conflict against OBL and are part of an armed conflict underway since 9/11 and the AUMF at a minimum.  I have argued, and the US government in Harold Koh’s 2010 speech seems also to accept, that there is the residual possibility of uses of force that are not part of any armed conflict.  But the position of the USG appears to be that although “naked” self-defense uses of force outside of armed conflict exists as a real possibility, in the current circumstances, those being targeted and pursued by the United States are part of the existing armed conflict as defined under the AUMF.  The AUMF for this purposes is not just a statement of US domestic authority; it is a statement of those against whom the US undertakes hostilities, in an armed conflict established by the existence of those hostilities (and, aggregated together, as noted above, meeting the NIAC threshold).  Naked self-defense might arise in a different situation, but as things stand now, in the US view, the hostilities undertaken are all part of the same NIAC, because it has extension in time and space.

Now, one can agree or disagree with all or any part of it.  I’m much less interested in that than in knowing whether I have accurately captured the US government’s position.  In any case, your life will not be complete without reading my blessedly short paper on debating whether there is a “legal geography of war.”