The Armed Conflict with Al Qaeda

by Kenneth Anderson

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.”

http://opiniojuris.org/2011/05/06/the-armed-conflict-with-al-qaeda/

11 Responses

  1. Ken,

    Thanks for that — an excellent explanation of the U.S. position.  My primary problem with that position is this:

    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.

    That view strikes me as legally problematic, for two reasons: (1) the customary approach to NIAC doesn’t allow such completely aspatial aggregation; and (2) the AUMF’s definition of “al Qaeda” is far broader than any definition of al Qaeda consistent with the traditional “membership in an organized armed group” or DPH standards.

  2. I think that you should make sure to give this Mary Ellen, Gabor Rona, and the ICRC for their comments – Bellinger and Koh too.  That will be quicker.
    On the whole, all of this self-defense stuff sounds like Us foreign relations law = not international law.  I am not saying whether this is correct or incorrect or an accurate or inaccurate vision.  I am saying that it is an American game with itself and that is what makes the self-defense shreds problematic from what I see in international law.

    I recognize that this may appear to be a bit shocking for you but I do think there is a reason that we talk about laws of war and laws of peace since antiquity.

    Just because something is new for us does not mean it is new.

    The geography against AlQaeda you describe reminds me of the geography of war between the Axis and Allied Powers in WWII in spread though less in intensity.  The IAC and NIAC point in a huge space and where information and communications are made more fluid around the world than at any point before in human history.

    Also, the Pakistan situation should point out to us that AlQaeda as the non-state actor made merely be a “front” for a state in the background who cannot be seen as openly in an IAC with another powerful state.  For that matter, Pakistan might be a stand-in for someone else – i keep thinking China.

    OBL against the Soviets was after all him as a non-state actor standing in for the US and Pakistan serving as the conduit for arms.  Soviets and US could not afford a war directly of an IAC nature, so they dress it up as an NIAC and we get all hung up on these distinctions.

    This is why I think this is not the beginning of the end, but the end of the beginning of something crazier.  AQ is the face of a much tougher struggle.  Just intuitions, no real basis in facts to go there.  But, you are asking for comments on an essay.

    I also think that the self-defense space being worked so hard to enshrine is a dangerous development that is really just the antechamber to World War at a level that worries me.

    I watch all these commentators on television and their essential indifference to the laws of war and ends justify means analysis and I really worry that we have forgotten something.  I hope that we do not face an armed conflict where we are made to relearn something very painful that people in conflict zones no intuitively from their terrible life experiences.

    Best,
    Ben

  3. Sorry for the typos – willclean up tomorrow.  Too tired now but wanted to get out the gist of what came to mind.
    Best,
    Ben

  4. Well done Ken.

  5. It is a great piece but I would think that the point could simply be left to the fact that there was Pakistani consent rather than the “unwilling or unable” route.  To the operation.  There are pre- and post-operation positions of the Pakistanis that I think support that.  Moreover, we have the plausible deniability type approach seen for example in Yemen for drone strikes there.  Given the number of drone strikes that have occurred in Pakistan over the past years I seriously doubt that the United States is acting completely out of the blue on these things with regard to Pakistan.  I recognize Pakistan has its interests as a sovereign to take positions or postures to maintain its flexibility but I, as one, have no doubt that Pakistan at a sufficiently high-level to acquiesce knew that if we found OBL we would go after him wherever he was in Pakistan.

    I really think that the “unwilling and unable” is very problematic and note the Brownlie cite from 1958 comments above.

    This is a case of something in the ASIL protesting too much when it could keep it much simpler and elegant.

    If there is no “unable or unwilling” rule and there is no consent then this becomes a dispute between Pakistan and the United States.  Saudi Arabia and the United States (diplomatic protection of OBL), and other nations and the United States about anyone else killed in the operation of any other nationality.  Then it comes down to how those relations occur and whether a referral is made to the ICC for the persons who did the killing.  If the same rule is applied by the ICC as it did about Iraq (too wit, we are dealing with mass murders in Africa more than torture etc), then I doubt that an information will be opened or this would go anywhere with the ICC.  At least as the world looks today.

    Best,
    Ben

    Best,
    Ben

  6. Ken,

    Somewhat quickly, because I am grading.  I responded to Kevin and Marty’s earlier debate trying to make this point but it is buried in the thread.

    I am sure that you have talked to more and higher level government officials than I have.  However, I think your summary of the USG view on this may be incomplete.

    I read you to say that the USG view is that an ongoing armed conflict is the reason IHL applies to attacks against al Qaeda and associated forces.   That’s true, but incomplete.  My read of official statements and litigation positions, and I think Kevin’s too, is that the USG assertion is that attacks are part of the AUMF non-international armed conflict (NIAC) or are independent lawful acts of national self-defense unrelated to that conflict.  This is an important distinction, as you recognize but don’t fully analyze.

    To successfully support such attacks as an independent act of self-defense, the USG must necessarily believe that IHL applies (perhaps only by analogy) to acts of self-defense against non-state actors even if hostilities with them do not meet the oft-asserted customary international law (CIL) duration, intensity and organization thresholds to establish a NIAC.  I think this is what Marty earlier stated as his understanding of the USG view, and Michael Lewis argues to be state practice as well.

    Kevin’s (and Mary Ellen’s, and others’) disagreement with this is that it conflates the jus ad bellum and jus in bello for NIAC.  They think even if there is a jus ad bellum right of self-defense against a non-states actor, a state is limited to IHRL (law-enforcement methods) unless hostilities in a given geographic location meet the intensity, duration and organization requirement.  (So I guess this means that if a non-state actor projects its attacks far enough away, geographically and temporally disperses them, and keeps itself loosely- or un-organized, it can effectively prevent the application of IHL no matter how much damage it inflicts.)

    In recent commentary (e.g. our PENNumbra debate and here), it seems Kevin would allow attacks beyond active conflict zones, but only if the targets’ activities give them targetable status in IHL and are directly related to the hostilities occurring in an active conflict zone.  Mary Ellen would not permit that position, but recently stated that she would permit an intrusion upon a foreign state’s territorial integrity to engage in extraterritorial law enforcement, the intrusion necessary to do so being justified as a counter-measure.  There is actually an interesting symmetry to her argument, though at bottom I think it somewhat internally inconsistent and disagree that it fairly represents CIL.

    If I accurately state the USG view of the law governing self-defense not involving hostilities reaching the NIAC threshold, then it may be based in a more holistic view of armed conflict and the applicability of IHL.  If so, the USG would be required to state that IHL applies to all armed conflict, and that governments almost necessarily determine when such conflicts exist by resort to armed attacks.  Alternatively, the USG could state that neither IHL nor IHRL apply to these acts of extraterritorial self-defense, but that when undertaken in response to actual or imminent attacks of sufficient intensity it is good practice to observe IHL requirements of necessity, distinction and proportionality.  On the whole, I think this may be the best reading of Koh’s statements and the USG’s actual litigation positions.

    You’ll have to go back to my comments at St. John’s, very briefly summarized in response to Kevin and Marty’s earlier exchange, to understand why I think state practice will ultimately more clearly support the USG’s broader view of IHL’s applicability to self-defense against non-state actors.

    Hmmm…maybe this wasn’t all that quickly done after all…

  7. I do not believe that you can develop an accurate theory of conflict with “Al Qaeda” that omits the conflict with the Taliban. On 9/11 it was the Taliban, not Al Qaeda, that formed the government of Afghanistan and commanded the army of 45,000 of which the 1000 men of the AQ 055 Brigade represented one unit. Furthermore, the ongoing conflict in Afghanistan and much of the fighting across the border in Pakistan is more accurately characterized as a continuing armed conflict with the Taliban in which AQ plays a relatively small part. On the other hand, AQ has always been the agent that projects Taliban/AQ values and armed force to other parts of the world like Yemen and the US.

    It is not clear that the US Government has adopted a current position on the status of the armed conflict (international or non-international) with the enemy (Taliban and AQ). To the extent that there is an armed conflict with AQ that is distinct from the larger armed conflict, it would have to be a NIAC. However, there is no agreement that there are two conflicts and there is no agreement whether the conflict with the Taliban was at the start or is currently today an IAC or an NIAC.

    Just as Bin Laden was housed and protected within the national territory of Pakistan, the Taliban have been protected and allowed to develop camps and training facilities in the quasi independent tribal territories of Pakistan. Historically the Pashtun tribes dispute the legitimacy of the internationally recognized border established by the British a hundred years ago. So the Taliban continue to occupy part of a disputed territory and to project military force and control into Pashtun areas of Afghanistan.

    Some confuse the peacetime concepts of internationally recognized borders and recognition of the legitimacy of governments with rules of armed conflict. Putting a government in Kabul and recognizing it as the legitimate government of Afghanistan does not end the armed conflict with the former government of Afghanistan. That enemy has never surrendered, has never signed a peace treaty, and is still in control of some territory in Afghanistan. It believes itself to be the legitimate government of that country (and maybe some more territory).

    During WWII the Allies maintained governments in exile in Britain for Poland and France, and military units like the Polish paratroopers and Free French forces that fought on behalf of the governments in exile. The Free French were recognized as members of the alliance. This simply highlights that there is a distinction between the peacetime concepts of recognized international borders and recognized governments of countries and the wartime rules of IAC. If the UN could regard the Free French units under DeGaulle as lawful belligerents representing a government that had been completely driven out of the country it claimed to govern, then the Taliban in the tribal areas of Pakistan cannot be excluded by international law and practice from continuing to claim status as the legitimate government of Afghanistan, especially as their forces continue to contend for territory across the border. If there is one conflict with the Taliban/AQ, then that conflict may very well still be an IAC and not an NIAC.

    Nor would a US withdrawal from Afghanistan change the status. If the Taliban continue to fight the Karzai government, then our alliance in the continued armed conflict is sufficient. We do not need US boots on the ground if allied forces are willing to do the fighting for us. Furthermore, if this is partially an IAC then intensity is not an issue.

    This does not answer any questions or take a position, but just points out that the situation is even more uncertain than you have expressed it and there are even more questions that the USG has not answered.

  8. Howard, I am very glad you made that point.  I’ve been puzzled, for a long time, why the status of Al Qaeda as an irregular force of the former Government of Afghanistan has not been raised in questions of whether the fight against AQ is a war or not.  And, as you say, the conflict in Afghanistan has never stopped.

    That’s an issue the international lawyers really ought to spend some more time on–what constitutes the END of an armed conflict.  That’s an area, for example, that really muddles the legality/illegality of the second Gulf War.

  9. Great comment, John.

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