21 May No, the UN Has Not Said the U.S. Is Engaged in an “Armed Conflict” with Al Qaeda
In his post below, Harold Koh continually refers to the existence of an “armed conflict” between the U.S. and al Qaeda. Koh does not specify what kind of armed conflict the U.S. believes exists, but he references Common Article 3 in the detention section of the ASIL speech that he quotes, indicating that the U.S. believes it is in a global non-international armed conflict (NIAC) with al Qaeda.
That position may be consistent with domestic U.S. law under the AUMF, but it’s incorrect under international law, for reasons I’ve explained before. Even more troubling, though, is that various commentators on the legality of UBL’s killing are claiming that the United Nations has endorsed the U.S. position that a global NIAC exists between the U.S. and al Qaeda. The first mention I found was a BBC article that quoted Philip Bobbit, an excellent national security law scholar, as saying that the attack on UBL was not an extrajudicial killing because “I think this is part of an armed conflict authorised by the United Nations, authorised by both houses of Congress” (my emphasis). The second mention was in a blog post by Robert Haddick at Foreign Policy, in which he claimed — linking to the BBC article — that “[t]he U.S. view is that the 9/11 attacks sparked an ‘armed conflict’ between the United States and al Qaeda, a legal status that both the Congress and the United Nations quickly affirmed” (my emphasis).
It is critically important to understand why this is wrong. The U.S. position that it is involved in a global NIAC with al Qaeda is bad enough; it would be even worse if people believed that the United Nations agreed with it.
The first thing to note is that neither Bobbit nor Haddick identify how the UN has affirmed the U.S. position. The most logical source, though, is clearly Security Council Resolution 1368, enacted the day after 9/11. Here is the text of the Resolution:
“The Security Council,
“Reaffirming the principles and purposes of the Charter of the United Nations,
“Determined to combat by all means threats to international peace and security caused by terrorist acts,
“Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,
“1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington (D.C.) and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;
“2. Expresses its deepest sympathy and condolences to the victims and their families and to the People and Government of the United States of America;
“3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;
“4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 of 19 October 1999;
“5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations;
“6. Decides to remain seized of the matter.”
Robert Turner has argued in a recent essay on torture — perhaps serving as the source of Bobbit and Haddick’s view — that Resolution 1368’s reference to “the inherent right of individual or collective self-defence” is “the language of armed conflict, not law enforcement.” Nothing could be further from the truth. The resolution deals specifically — and only — with the jus ad bellum issue of when a state can invoke Article 51 of the Charter and respond to a terrorist attack with armed force; it says nothing, either directly or indirectly, about the legal regime that would govern those responses. (Indeed, Resolution 1368 never mentions armed conflict, nor was armed conflict discussed in the Security Council meeting that preceded the vote.) Those issues are, of course, separate: as always, whether a state is entitled to use armed force in self-defense is irrelevant to whether hostilities in a particular battlespace rise to the level of NIAC.
Resolution 1368 may well provide support for the U.S. view that the jus ad bellum entitles it to use armed force against al Qaeda even when doing so violates the territorial integrity of another state, although even that claim has been contested by scholars. (See Carsten Stahn’s thoughts here.) But it provides no support whatsoever for the U.S. position that it is engaged in a global NIAC with al Qaeda. Commenters need to stop claiming that it does.