No, the UN Has Not Said the U.S. Is Engaged in an “Armed Conflict” with Al Qaeda

by Kevin Jon Heller

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.

http://opiniojuris.org/2011/05/21/no-the-un-has-not-affirmed-that-the-us-is-engaged-in-an-armed-conflict-with-al-qaeda/

22 Responses

  1. “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;”

    I wonder what the resolution means by bringing to justice? Is it justice of the John Wayne type or a real court with real judges?

  2. There has to be a means to bring suspects to that “real court” with “real judges”. They don’t often walk into that courtroom voluntarily. Law that isn’t enforced doesn’t exist for all practical purposes.

  3. I think a large part of the confusion is whether responding to an ‘armed attack’ (in art. 51) with force automatically creates an ‘armed conflict’.  There’s a strong argument to be made that the UNSC’s recital of the right to self defense in this resolution implies that self defense can be justified against an armed attack originating from a non-State target (at least, when the s-d is necessary and proportionate). If you believe that all forcible responses to armed attacks necessarily trigger the law of armed conflict (i.e., a conflict arises when there has been an attack and a forcible response), then yes, the UNSC can be read to approve the application of LOAC in the ‘armed conflict’ between the US and al Qaeda. Since no section of the GCs technically apply, one would then turn to CIL (and, in particular, CA3 as an expression of customary norms) to find what law to apply.

    However, one could take the alternative view that the GCs were meant to be a comprehensive codification of the LOAC–i.e., that LOAC would only apply when the conflict is among States parties, or, under CA3, within the territory of one State party. In that case, there would be a disconnect between, on the one hand, an armed attack by a non-State actor triggering the right to self-defense (within the bounds of necessity and proportionality), and the legal categorization of the ensuing hostilities. The LOAC would not apply–i.e., there would be no armed conflict–and we would have to look to other sources of law (IHRL, policing powers, etc.) for guidance.

  4. In Hamdan the Supreme Court, without deciding exactly what type of armed conflict we were involved in, determined that our detention policy had to at least meet the standards of CA 3. So Koh’s statement on detention simply says that the US is following our own Supreme Court decision, but cannot be reasonably read to say that the US regards this to be a NIAC.

    A better reading of the statement is that the US regards itself in an armed conflict, which may be an IAC or a NIAC or some of both, and it does not regard the type of armed conflict to be material to the question of targeting Bin Laden. Nor apparently does it regard his presence in Pakistan to be legally significant to the question of whether he was a legitimate military target.

    Should Pakistan choose to formally raise the issue of violation of its territory, this would introduce a new question not addressed by the statement. However, this question can only be raised by Pakistan itself, not by third parties, and so far it has implicitly acquiesced. Therefore, the statement only deals with the justification for  targeting Bin Laden with lethal military force in the specific location where he was found.

    On 9/18/01 when the AUMF was passed, the Taliban controlled 90% of the area of Afghanistan, represented the only functioning government, and had an army of 45,000 soldiers engaged in a conventional battlefield against insurgents (the Northern Alliance). One can argue that this armed conflict started as an IAC. If so, I can find nothing in the Geneva Conventions that allows an IAC to be downgraded to a NIAC. To do so would be to gut the protection of the Third Geneva Convention, since the other party could always find some convenient puppet, recognize its “government”, and declare the enemy army to now be a force of insurgent criminals in a NIAC no longer entitled to protection under GC III. Even if the Taliban no longer control the territory they did, it seems necessary to assert that once the IAC rules attach to an armed conflict, IHL requires that they remain in place until the conflict ends with a surrender, peace treaty, or battlefield victory.

    So it would be a very poor legal strategy for anyone actually involved in the process (as to be distinguished from someone commenting from the sidelines) to build a strategy around an assumption that the courts will find that this is an NIAC or IAC. Rather, the safe position to take is that US policy is equally valid in either case, as Koh’s statement indicates.

  5. Koh’s statement uses the phrase “in the armed conflict with al-Qaeda, the Taliban and associated forces.” He appears to take the position that there is a single armed conflict, not separate armed conflicts with different parties.

  6. The ICRC’s Commentaries on Common Article III show the relevance of Res. 1368 to the issue of whether a NIAC exists between the United States and Al Qaeda. The Commentaries on the Conventions list a number of disjunctive criteria useful for the identification of a NIAC and thus the application of CA3.  One of these conditions is: “That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.” 
    The significance of Res. 1368 lies not in the UN’s recognition (or non-recognition) of a NIAC, but in the fact that the confrontation between the United States and Al Qaeda was referred to the Security Council as a “threat to international peace.”

  7. As a very technical matter, I agree with you, Kevin, that the Security Council did not recognize the existence of a non-international armed conflict.  At best, by referring to the inherent right of self-defense, the Security Council recognized that an armed attack had occurred.  Doing so, though, tended to establish or recognize the commencement of hostilities, which, when coupled with the U.S. response, established an armed conflict. 

    This creates a problem, I think, for the view that until the NIAC duration, intensity and organization requirements are met in a given location states are limited to human rights law/law enforcement responses.  If that is true, only a non-state actor can establish the existence of NIAC through its acts of violence.  Thus, a state’s resort to armed attacks in response to armed attacks must necessarily be relevant to the objective determination of the existence of armed conflict.   As you said, “[r]esolution 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….”

  8. An increasing number of scholars seem to take it for given that state force against terrorists imperatively is an “armed conflict” under the legal regime of IHL.
    An explicit recent example is David Crane’s posting on Jurist.org.
    This line of reasoning might not be more than a simplistic rhetorical approach to bring into compliance the political agenda of a global war on terror with the existing IHL framework.
    It might also be the manifestation of a new school of thinking that anticipates a de lege ferenda concept of a third category of military conflict within IHL that is neither IAC nor NIAC, but still triggers the exact same legal regime.
    If the latter, i find it troubling that those scholars dont bother at all to demonstrate the existence/need of such a concept or the obvious issues arousing from applying NIAC rules onto a non-spacial, non-temporal military mission.

    Either way, they miss to contribute anything valuable to the fundamental question within which legal scope the war on terror is or rather should be fought and why.

  9. “On 9/18/01 when the AUMF was passed, the Taliban controlled 90% of the area of Afghanistan, represented the only functioning government, and had an army of 45,000 soldiers engaged in a conventional battlefield against insurgents (the Northern Alliance). One can argue that this armed conflict [after the U.S. intervened] started as an IAC [U.S. vs. Afghanistan]. If so, I can find nothing in the Geneva Conventions that allows an IAC to be downgraded to a NIAC. To do so would be to gut the protection of the Third Geneva Convention, since the other party could always find some convenient puppet, recognize its “government”, and declare the enemy army to now be a force of insurgent criminals in a NIAC no longer entitled to protection under GC III. Even if the Taliban no longer control the territory they did, it seems necessary to assert that once the IAC rules attach to an armed conflict, IHL requires that they remain in place until the conflict ends with a surrender, peace treaty, or battlefield victory.” – Howard Gilbert


    Howard – I think that is a very provocative, insightful point, which deserves serious consideration and discussion by those committed to fulfilling in good faith the humanitarian objectives of the Geneva Conventions.

    Certainly the implications of such an approach to the methods of detention, and treatment, of persons taken/held by the U.S. as combatants during our ongoing, ill-defined, 2001-AUMF-authorized armed conflict are profound (in a positive direction).

    When the Karzai government was installed atop Afghanistan in 2002, such an approach would presumably have entailed the formal cessation of the U.S. conflict with the Taliban, as proxy for the government of Afghanistan (if we intended to officially end the IAC), which in turn should have required recognition by our Congress of the changed circumstances, necessitating a revised AUMF targeting only non-state actors (responsible for 9/11) going forward, or simply a healthy return to enforcement of peacetime laws against terrorism. If we’d then continued to participate in the propping up of the Karzai government through ISAF and NATO, as we continue to do today, we at least couldn’t have claimed to be doing so as one party in an IAC against that nation (something that Koh’s position implicitly claims, by not clarifying the present status of the armed conflict at issue).

    Still, all of this seems more than faintly futile at this stage of proceedings, given how starkly evident it has become, due to the unchecked might-makes-right behavior abroad of the United States and its armed forces in recent years, that international law and the law of armed conflict are, in practice, empty verbiage devoid of effect – absent voluntary good faith adherence by the parties fighting, or circumstances forcing ‘enlightened self-interest’ adherence by both sides (meaning, usually, more-or-less-equal foes), or actual enforcement of those laws, internationally or domestically. It seems only too painfully, and dangerously, clear by now that, for the foreseeable future, none of those circumstances are likely to pose any meaningful constraint of any kind on the ongoing use of violent “armed conflict” force abroad by our government.

  10. Response..
    Yes, Harold Koh’s reference to common article 3 does not logically or impliedly define the conflict from his point of view, since it is well known that common article 3 applies as a minimum set of rights, duties and competencies also in an international armed conflict — like the one going on in Afghanistan and parts of Pakistan and involving several actors.  Second, Bobbit’s statement about “part of an armed conflict” authorized by the U.N. (really, the U.N. Charter as well as the S.C. res. recognizing the right of self-defense) does not necessarily mean that what he refers to is merely a conflict with al Qaeda as such and not the international armed conflict with the armed forces of the Taliban when we went in and the international armed conflict that still exists de fector among many actors in Afghanistan and parts of Pakistan.
    And yes, merely because a state rightly responds to a non-state actor armed attack like those by al Qaeda that still continue, does not mean that the state is at “war,” or that the state is in an armed conflict with another state, a belligerent, or an insurgent — especially since al Qaeda does not even meet the test for insurgent status, much less that under Geneva Protocol II.
    And, yes, several of my law review articles over the years have addressed the fact that when the U.S. went into Afghanistan an also attacked the armed forces of the Taliban, there was already an international armed conflict occurring between armed forces of the Taliban (the de facto govt., and de jure govt. according to three countries at least) and several thousand armed troops of Pakistan (who had to be flow out at night) on the one side and the belligerent (not insurgent) Northern Alliance — and the U.S. further internationalized the armed conflict.  E.g. 35  Cornell Int’l L.J. 533 (2002), avaliable at ssrn.
    Anyone who thinks that the international armed conflict with the Taliban has stopped should consider the number of U.S. military and European military deaths over the last 9 plus years and the continued armed violence in the de facto theater of war in Afghanistan (which the Kabul govt. has never fully controlled) and parts of Pakistan.

  11. Response…
    Howard: yes, yes, an international armed conflict during which some al Qaeda operatives, and bin Laden< haave participated as targetable DPH and CCFs even though they would not be combatants or pows unless a particular member of al Qaeda had joined the armed forces of the Taliban. 

  12. a state’s resort to armed attacks in response to armed attacks must necessarily be relevant to the objective determination of the existence of armed conflict

    John,

    I completely agree with you, but two points need to be kept in mind (not by you, but by others who are less clear about the jus ad bellum/jus in bello distinction).  First, although the fact that the US uses armed force is relevant to whether there is an armed conflict, it does not determine it.  The hostilities between the US and the organized armed group(s) must still satisfy the NIAC threshold.

    Second, and more important, it is irrelevant whether the US’s use of armed force complies with the jus as bellum or not.  Even if the Security Council deemed a US attack on a terrorist group in another states unlawful and criminal, the US’s use of armed force would still count toward the NIAC threshold.  Indeed, that’s the point I’ve been trying to make for weeks: whether a NIAC exists is an objective determination that is not affected by whether an armed attack qualifies as self-defense under the Charter.

  13. Response…
    Kevin: your first para. is somewhat inconsistent with the second two paras., because if the armed attack against a state or its nationals, etc. was by a non-state actor that does not even meet the criteria for insurgent status (semblance of govt., control terr. as its own, field milt. units in sustained hostilities), then responsive force in self-defense directed merely at the non-state actor does not create an armed conflict of any sort (which seems to be the point made in your second and third paras.) — and, then, we cannot be a “war” (or in even a NIAC) with al Qaeda as such, although there is certainly an int’l armed conflict continuing in Afghanistan and parts of Pakistan (which picks up rights and duties of al Qaeda types at least within the de factor theater of war) — but the al Qaeda types are not combatants but are DPH at least to the extent that they are DPH in fact over time and, according to the ICRC, are also CCFs, and are targetable under the laws of war. 
    Members of al Qaeda in Yemen would seem to be outside the theater of war unless they actually act as DPH in that war.  However, they would be targetable as DPAA (direct participants in armed attacks) to the extent that they were doing so — and they would be targetable under the law of self-defense (UN 51) even though they would not be under the laws of war.
    What armed forces have been part of the international armed conflict? U.S., U.K., Australia, Netherlands, Denmark, Estonia, Norway, France under NATO plus the armed forces of Afghanistan, plus the Taliban, etc.

  14. I agree with the conclusion that the U.N. Security Counsel did not endorse the position that the U.S. is in a global NIAC with Al Qaeda, and agree that the position itself is not consistent with international law. But I am not sure I follow some of the reasoning.

    Kevin, I understand you to be arguing in the original post that even if the U.S. had a right of self-defense under jus ad bellum, which you point out was acknowledged by the U.N. Security Counsel, that that fact has nothing to do with whether there is or is not an armed conflict under IHL. In particular, I have trouble with the comment “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“. This seems to buy into Ken Anderson’s argument that a state can use force in self-defense, but in such a way that it would not rise to a level sufficient to constitute an armed conflict, and thus be outside of the scope of the obligations of IHL.

    I would suggest that this misconstrues the relationship between jus ad bellum and IHL. When a state uses force against non-state entities within another state, under the justification of self-defense under Art. 51 of the U.N. Charter, it will necessarily create the conditions of an IAC. Even if the use of force is not justifiable and is ultimately found to be an act of aggression, it will still be a use of force against the territorial integrity of the state in which the non-state entity is operating, and will trigger the operation of IHL. The use of force is not understood under jus ad bellum to be directed against the non-state entity itself (even though that is the real target), but the state that is harboring or facilitating its actions. And it cannot be that a state can use force rising to the level that would attract jus ad bellum considerations, but be somehow entirely outside of the scope of IHL because it doesn’t fall within the definition of NIAC or IAC. To so argue would be to suggest that such use of force would be virtually beyond the reach of any legal regime.

    To anticipate the question that some may raise, if the state within which the non-state entities are operating consents to the use of force, the analysis would be entirely different. Then there is no jus ad bellum consideration – either the use of force has to be construed as assistance to the local government in an ongoing NIAC; or if the conditions do not meet the criteria of NIAC it seems to me that the use of force has to be then understood as being a law enforcement operation. Then human rights law and domestic criminal law operates, rather than IHL.

    So, returning to the U.N. Security Counsel resolution, it seems that the best interpretation is that it acknowledged the right of self-defense as against the state that was harboring and facilitating the terrorists that had mounted an armed attack. The use of force in self-defense would be subject to the limitations of IHL, given that it would trigger the conditions of an IAC. Nothing in the resolution or subsequent actions can there be found the foundation for the assertion that there is a global NIAC against a network of loosely affiliated non-state entities.

  15. Craig, great comment and great to see you here.  What you say is a quite logical rendering of the law, but I don’t know if it is accurately represents how states understand it.  I actually like your take on it.

    “And it cannot be that a state can use force rising to the level that would attract jus ad bellum considerations, but be somehow entirely outside of the scope of IHL because it doesn’t fall within the definition of NIAC or IAC. To so argue would be to suggest that such use of force would be virtually beyond the reach of any legal regime.”

    Some commentators have suggested exactly that.  In particular, the way that the USG litigates and sometimes discusses the issue, applying the IHL of IAC “by analogy” to transnational armed conflict, raises that specter.

    “To anticipate the question that some may raise, if the state within which the non-state entities are operating consents to the use of force, the analysis would be entirely different. Then there is no jus ad bellum consideration – either the use of force has to be construed as assistance to the local government in an ongoing NIAC; or if the conditions do not meet the criteria of NIAC it seems to me that the use of force has to be then understood as being a law enforcement operation. Then human rights law and domestic criminal law operates, rather than IHL.”

    I want to push you a bit on this point.  This is also a quite logical way to look at this issue, an issue I have been thinking about but that is much overlooked in commentary.  I agree that consent by a territorial state alone doesn’t necessarily permit resort to IHL armed attacks to engage a threat.  But here is the question with that.  If a state is unable to expel or intern an element of a non-state organized armed group from its borders, a group involved in armed conflict that is, at the moment, physically occurring elsewhere, can it consent to permit an armed attack against the group even though the state is not itself in engaged in armed conflict with that group?  I think many would say yes.  Your position taken above would refute that. 

    Recall in this context that in the original neutrality act of the U.S., Congress authorized the use of the armed forces to suppress private actors engaged in “war” with foreign sovereigns or peoples and thereby threatening U.S. neutrality.  I think the same result, domestic use of the armed forces to remove such a threat, could still be achieved today in (quite) extreme circumstances.  Note 10 U.S.C. 332:

    ” Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

    The question, of course, is what legal regime would govern the armed forces called upon to counter an “unlawful obstructions, combinations, or assemblages.”  It is here we must remember that both the U.S. Constitution and human rights law, such as the ICCPR, permit derogation from many norms when strictly necessary.

    “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”  ICCPR, Art. 4(1).

    Nothing in the ICCPR delimits threats to “the life of the nation” to armed conflict, though a fair argument can be made.  Thus, commonly understood or accepted human rights/law enforcement protocol may not apply.

    Similarly, the Suspension Clause of the Constituion allows for the privilege of the writ of habeas corpus to be suspended “when in Cases of Rebellion or Invasion the public Safety may require it.”  There are other cases where the Supreme Court has allowed derogation from Bill of Rights protections in cases of strict (or what it accepted as strict — see Korematsu) necessity. 

    From my perspective, this topic is in dire need of further discussion and analysis from the perspective of both international and domestic law.  We seem to be too often locked in to an overly simplistic IHL v. IHRL (v. no-law-at-all) discussion.

  16. Response…
    It is certainly not logical or common sense to conclude that because Pakistan had not consented to the U.s. use of armed force in self-defense against bin Laden that the U.S. was in an armed conflict or war with Pakistan.  Neither Pakistan nor the U.S. agree, nor does any other country in the world as far as we know.  Before and during the Caroline incident, there was no expectation that a country using force in self-defense against non-state actor armed attacks was at war with the state from whose territory the non-state actor attacks had emanated.  This is the clear trend among the majority of states since then, with some states disagreeing.  See the trends in http://ssrn.com/abstract=1520717
    With respect to human rights during war, there are ample recognitions that human rights law can apply during war, including by the ICJ.  The U.S. has not formally utilized ICCPR art. 4 and, in any event, some human rights (like freedom from torture) are nonderogable and applicable in all circumstances without exception.  See, e.g., http://ssrn.com/abstract=1331159
    http://ssrn.com/abstract=1485024
    http://ssrn.com/abstract=1497124
    http://ssrn.com/abstract=903349
    But persons who are protected and are outside the territory of the country allegedly violating their human rights must be in the “effective control” of that country or in territory occupied by that country — none of which pertain with respect to the U.S. killing of bin Laden whether or not Pakistan had consented to the operation (and Pakistan surely had not).

  17. John, thanks for the thoughtful response. I think there are two main points that you are addressing, so let me take them in turn.

    The first relates to my argument that there cannot be a use of force by a state against entities within another state, as that term is understood under Art. 2(4) of the Charter, which would fail to trigger the application of IHL. To put this another way, such a use of force would by definition meet the criteria for IAC, precisely because the use of force has to be understood as being by one state against another, even though the ultimate target may be assets of a non-state entity within the state. Such a use of force would thereby trigger the operation of IHL in the context of an IAC.

    The argument that  the armed forces of a state can use force as the term is understood in jus ad bellum (such as in self-defense) but not have it constitute an armed conflict so as to attract IHL makes little sense to me – on what possible basis is the violence and killing immunized from prosecution if not the principles of IHL?

    The reality, of course, is that most proponents of targeted killing suggest that IHL does apply to immunize the conduct of U.S. agents, regardless of whether the criteria for either IAC or NIAC are satisfied. And I would emphasize that if one is going to rely on some principles of a legal regime, one has to accept the internal criteria of that regime for determining when and in what circumstances the regime itself operates. Kevin sent me an article by Milanovic in an off-line exchange yesterday on the parameters of NIAC and IAC, with a discussion of when NIAC can become internationalized. As Milanovic points out, the criteria are clear, and there cannot be an armed conflict that is neither NIAC or IAC – no “transnational armed conflict” for instance. And he addresses the very circumstance I am referring to above, where a state uses force against non-state entities within another state. He uses the Lebanon example, and writes:

    What, then, of the second possible type of internationalization, that of the Israel-Hezbollah example, assuming, arguendo, that the acts of Hezbollah were NOT attributable to Lebanon? My view is the same as Dapo’s – it is the very fact that state A uses force against the people of state B without its consent that creates an international armed conflict. Israel’s invasion of Lebanon initiated a conflict with Lebanon, not just with Hezbollah. This would remain the case even if Israel limited itself strictly to attacking Hezbollah targets (which it did not).

    This, it seems to me, clearly supports the idea that the use of force against a non-state entity in another state is in legal terms a use of force against that state, both for purposes of jus ad bellum, and in terms of triggering IHL through the creation of an IAC.

    Your second issue relates to State A’s consent to the use of force by State B against a non-state entity operating within State A’s territory. You have qualified my facts by asserting that the non-state entity is in fact involved in an armed conflict in the territory of yet another state (State C), in which the forces of State B is involved. Can Sate B be said to be using force against the non-state entity within A, as part of an NIAC in the neighboring C? The key question here, I think, is what work the consent does.

    From a jus ad bellum perspective, the consent arguably means that the action does not constitute a use of force against State A, where the action would otherwise constitute an act of aggression, or have to be justified as an act of self-defense. I say arguably, because some suggest that a state cannot consent to a use of force against it. If there is no use of force in jus ad bellum terms, then the acts of violence do not constitute an IAC. How shall they then be classified?

    Can state A consent to the forces of either State B or State C killing insurgents from the NIAC within C, within the territory of A? Or to put it another way, does the consent of A alter the legal regime that would apply to the killing by the forces of B or C? Again, I think that Milanovic’s discussion of the internationalization of NIAC speaks to this – if the use of force doesn’t create an IAC with A, and the insurgents are not involved in a NIAC with the government of A within the territory of A, then none of A, B, or C, may target the insurgents within A on the grounds that the NIAC ongoing in C extends into the territory of A. I defer to those who really specialize more than I in IHL to confirm this, and I do agree that this requires more work.

  18. Wonderful thoughts, Craig.  Let me quickly share some thoughts.

    Regarding the second issue, particularly your last paragraph, there is great disagreement in the commentary on this area of the law.  Historically, at least, IHL follows the parties to the conflcit wherever they may be found.  This was an important limiting principle long ago, and is now (somewhat ironically) viewed as an enabling principle given modern notions of international human rights. 

    Also, I think we should separate issues of immunity for armed attacks from the discussion of the classification of the conflict.  While some claim that there can be no combatant immunity in NIAC, I am uncertain whether that is true.  Certainly in internal armed conflict, domestic law can be the only source of immunity for violence (along the lines of public authority).  In extraterritorial NIAC, there is no reason why territorial states in which armed attacks occur could not provide or recognize the equivalent of combatant immunity for a foreign state’s armed forces, and state practice might actually support this as being the case.  At bottom, it is not necessary to classify a conflict as IAC to immunize a state’s armed forces.  

    Going back to the first issue, Marko’s is but the latest in a long series of writing on this subject.  In my very quick read, I am delighted to find that his discussion of the topic continues in its refinement (as does my own).  I would note, however, that the musings of commentators (or even of judges) on the relationship or content of various international norms is no substitute for the study of state practice.  To say that the Israel-Hezbollah conflict is best understood or classified as an IAC does not tell us whether or the extent to which states, the makers of international law, classified or understood it as such.  Did Pakistan consider the attack on Osama bin Laden an attack against it (thereby creating IAC and triggering its IHL), or “merely” a violation of its sovereignty?

    That was the crux of my earlier point to you.  Your classification of attacks against non-state actors in other states as IAC is entirely logical, as is Marko’s and Dapo’s approach.  I am simply uncertain whether it reflects how states actually understand it.  The “messy alternative” (to borrow a phrase from Marko’s closing paragraph) of extraterritorial NIAC, or parallel IAC and NIAC conflicts in the same battle space but governed by different rules, may be the way states understand — even want – things to be.  And after all, isn’t it the opinio juris of states that matters most to determining the content of such customary international law?

  19. Craig Martin wrote:

    From a jus ad bellum perspective, the consent arguably means that the action does not constitute a use of force against State A, where the action would otherwise constitute an act of aggression, or have to be justified as an act of self-defense. I say arguably, because some suggest that a state cannot consent to a use of force against it. If there is no use of force in jus ad bellum terms, then the acts of violence do not constitute an IAC. How shall they then be classified?

    Shouldn’t we read the consent issue in light of GC Art. 2′s application even in the case where the armed conflict is “not recognized by one of [the parties]“? The ICRC commentary is clear enough, at least:

    By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for recognition of the existence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto hostilities is sufficient. . . .Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.

    So, maybe the argument would go: there is no “difference” giving rise to intervention because both states agreed that one of them could force on the territory of the other. Again, the ICRC commentary:

    The Convention only provides for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war. Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests.

    So, regardless of consent, it would seem that if one state uses force against the territory of another, there is, by GC standards, an IAC, no matter how the various states choose to characterize it.

    On the other hand, if that’s true, it looks like evaluating the status of the group attacked becomes incredibly convoluted.

  20. Certainly in internal armed conflict, domestic law can be the only source of immunity for violence (along the lines of public authority).  In extraterritorial NIAC, there is no reason why territorial states in which armed attacks occur could not provide or recognize the equivalent of combatant immunity for a foreign state’s armed forces, and state practice might actually support this as being the case.  At bottom, it is not necessary to classify a conflict as IAC to immunize a state’s armed forces.

    John,

    I’m unclear about this.  Are you arguing that there can be combatant’s privilege in transnational NIAC as a matter of law or as a matter of comity?  If it’s the former, which seems inconsistent with the first sentence, what is your opinio juris and state practice for the existence of such a customary rule?

  21. Anonsters, whatever the commentary says (and I am not saying it is entirely irrelevant), we have 60 years of state practice that necessarily informs the interpretation of the GCs on this point.

    Kevin, insightful questions as always.  Let me see if I can address them coherently at this late hour.  I thought of begging off because I have it in mind to write on this topic whenever I have time, but that will not be soon.

    First, I am not making an argument, merely an observation.  It is not clear to me whether states understand there to be an international law based combatant immunity or functional equivalent (I thought I was clear in stating that there could be an equivalent to “combatant immunity”) for the armed forces of a state party to a NIAC, be it purely internal or in some respects transnational.

    In the context of transnational armed attacks against non-state actors, it seems to me that states most often speak of violations of their sovereignty, but not of their domestic criminal law.  Is this a recognition of combatant or some other equivalent functional immunity?  Perhaps not, perhaps so.  I haven’t surveyed state practice or opinio juris, but neither have those claiming that this immunity does or could not exist, at least not that I am aware.

    When a state consents to another state’s armed attacks or other uses of force within its territory, what is the source of immunity/justification for the other state’s armed attacks?  It could be a status of forces agreement, which could be argued to be international law (as between the contracting states) but only comity among states writ large (because they are not universally obligated by custom to provide it).  But then again, when a state consents to another state’s presence and conduct within its borders, it seems to me that customary international law may require immunity for action taken within the scope of that consent.   Is that the equivalent of a combatant immunity in this context?

    In a purely internal armed conflict, a state’s domestic law would logically be the only possible source of law to justify the use of armed violence.  This is certainly true from the perspective of dualist states’ domestic law.  However, given emerging notions of and practice surrounding the the responsibility to protect, perhaps an argument can be made that international law only sanctions (or tolerates) legitimate uses of force even in these cases.  Going all the way back to Grotius, “public war” was sanctioned by international (natural) law, but included only violence taken of behalf of a civil authority (even in purely domestic matters).  These days, it seems, the international community does not claim the right to intervene when purely internal violence conforms to IHL or human rights law, but may intervene when it doesn’t (see Libya, Kosovo, etc.).  Is this evidence of some form customary international combatant or equivalent functional immunity for the state’s leaders and armed forces engaged in purely internal armed violence?  Do Gaddafi’s ICC charges effectively indicate the removal of a functional immunity recognized by customary international law?

    Again, I am not making an argument here.  I am thinking out loud and welcome your thoughts.  Some have well-developed, logical theories for addressing norm conflicts in international law.  I merely note that those theories may not reflect the way states resolve certain of these conflicts/situations in practice.  It seems to me that state practice and opinio juris in such areas, if discernible, necessarily supersedes arguments based on asserted general principles of norm conflict resolution.

  22. “Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:…
    The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”

    Thus in a NIAC a High Contracting Party must endeavor (though not necessarily succeed) to negotiate an equivalent to the Geneva Conventions, including combatant privilege, in cases and with parties to which such protections would otherwise not apply. It applies by mutual agreement rather than as a requirement of IHL (though it is a strong suggestion of IHL).

    I would also bring your attention to the distinction between “each Party to the conflict” and the use of “High Contracting Party”. We talk about “state” and “non-state” parties as if this was a clear distinction. Sometimes it is not. On 9/10/01 most countries recognized the Rabbani government which was part of the Northern Alliance fielding 40,000 soldiers but controlling only 10% of Afghanistan, while the de-facto but unrecognized government was the Taliban fielding 45,000 soldiers but controlling 90% of the country. It is easy to choose a debating side and argue that either Party was entitled to be called a “state Party”, but as the events of the next three months (or 10 years) would show, control of Afghanistan was going to remain volatile. Afghanistan had, under an earlier government, signed the Geneva Conventions, and so Afghanistan – the country – was a High Contracting Party even if it would be hard to argue if any of the parties to the NIAC had a right to claim that they were the “state” and therefore entitled to be regarded themselves as the High Contracting Party.

    The Taliban, which was really an aspect of the Pashtun tribes occupying both Southern Afghanistan and the Tribal Areas of Pakistan, then moved across the border where they continued the armed conflict in Afghanistan while at the same time initiating attacks against Pakistan that may have triggered a NIAC there. The Taliban remained the same Party, and it remained in the same armed conflicts with the same enemy Parties. If the US pulled out of Afghanistan completely, it would stand a pretty good chance of controlling at least the southern half of that country. While it seems less likely that it would take over Pakistan, the stability of that country should not be simply assumed.

    The Taliban may look down now, but they are certainly in a stronger position than anyone expected the Northern Alliance to be on 9/10/01. Then the F-16s showed up and a government previously on its last legs became the government in control of much of Afghanistan (and recognized by everyone). After the collapse of South Vietnam, or the collapse of the Batista government in Cuba, we must remember that the “government in control” can be flying out of the country 48 hours later. However, if the Taliban took over they would be reclaiming their prior interrupted almost-state role in Afghanistan rather than creating an entirely new government.

    So the question really is, how to view the language of IHL when the terms state and non-state are really a continuum, and an entirely temporary status, rather than an obvious or permanent yes/no designation.

    I would suggest, simply by borrowing the language of CA 3, that the US can be involved in an armed conflict with the Taliban, which is a Party to a conflict that may be an Article 2 IAC (continued from the time when they controlled Afghanistan) or may be an Article 3 NIAC (based on their current status in Pakistan), but in either case the Taliban is a Party that is located within the territory of a High Contracting Party (Pakistan) without itself being the High Contracting Party. Nor does the existence of this armed conflict with a Party on the territory of a High Contracting Party require that there be an armed conflict with the High Contracting Party itself.

    During the Korean War, the UN fought against a half million soldiers of the PLA, the army of the Communist Chinese. At the same time, we and the UN recognized the government in Taiwan as the government of China. The point is that we fought the Chinese Communist army without regarding ourselves as being at war with Taiwan. Admittedly Taiwan had no control over mainland China and, therefore, could not enforce its territorial integrity. However, nobody imagined that we could not defend ourselves against the Communist Chinese attack or use lethal military force without first sorting our way through the ambiguities of IHL and somehow resolving the territorial integrity of a country that Taiwan claimed to govern but over which it exercised no real control.

    It would appear that Pakistan does not itself exercise any real control over the Tribal Areas in which the Taliban and AQ are hiding. I propose that we cite the precedent of the entire Korean War and declare that we can use lethal force against the Taliban and Al Qaeda without officially sorting out the position that Pakistan takes relative to this armed conflict. If that is OK with Pakistan today, as it was with Taiwan in 1952, then that should be good enough for IHL.

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