11 Sep The Global War on Terrorism’s Tenth Anniversary
Like many Americans, especially those of us living or working in New York City at the time, I have very personal and powerful memories of the September 11, 2001 attacks. I will spare our readers my own reminiscences, however, and stick to something a little more relevant to this blog’s subject matter: the international law of armed conflict.
While many pundits and commentators have discussed the myriad ways that the attacks of September 11, 2001 have impacted American society, culture, daily life, literature, art, etc., it is also worth noting that September 11, 2001 was the day the “global war on terrorism” began, an armed conflict that continues to this day. The legal nature of this armed conflict was initially disputed since there was little precedent for a nation-state to declare itself in a global armed conflict with a non-state actor like Al Qaeda. But the legality of this armed conflict under international law is now the consensus view (at least in the United States). The legality of such an armed conflict is what justifies, under international law, the continued capture, detention, punishment, and targeted killings of enemy combatants associated with Al Qaeda.
To be sure, as Kevin’s posts on the CMCR below remind us, there are many complex and difficult legal questions to sort out as this armed conflict enters its second decade. But the basic legal framework appears to be settled and has been confirmed by two different U.S. administrations (with legal advisors as different as John Yoo and Harold Koh). The United States is “at war” with terrorists and will likely remain so for the foreseeable future.
To say that Julian has here made an overstatement about the degree to which there is consensus regarding the existence of a state of armed conflict between the US and al Qaeda, would be a gross understatement. In fact I think the majority opinion even among US legal academics is quite the opposite. And internationally there is no question that a supermajority of legal scholars disagrees that the US is in a legal armed conflict with all terrorists forever. A state simply cannot claim to be formally at war with an -ism; i.e. with an ideology. It also can’t claim to be formally at war with a tactic – i.e. terrorism, which is the intentional targeting of civilians with the purpose of influencing societal feeling or government policy. I certainly don’t agree that the US is formally at war with al Qaeda, or with terrorism, or with radical Islam.
Julian is 100% correct. Clearly, the U.S. was attacked on its sovereign soil (not its interests overseas). The planes used against the WTC and Pentagon were in effect “fired missiles” into the United States. Therefore, an act of War was conducted and notwithstanding that the War was not declared by an official nation state, the terrorists’ statements against the “crusader Americans” and the “infidels” should be adequate to satisfy a declaration of War. The United States has a right and in fact duty to carry the War to the enemy and that includes the terrorists themselves, their state sponsors/supporters/enablers and any other organization that aids and abets the enemy’s War efforts.
Excellent legal analysis, JWB… with not a single legal argument. But if you say it’s 100%, well, we have no other reason but to believe you!
Thanks, really.
Response…
The first response is objective — most agree that the U.S. cannot be at war with al Qaeda.
Julian: the war paradigm certainly applies with respect to the war in Afghanistan and the de factor migration of the theatre of war into parts of Pakistan, but the better paradigm is one that is based in the U.N. Charter — the right of self-defense against non-state actors who are engaged in continual armed attacks on the U.S., U.S. military in Afghanistan, etc. We do not have to be at war in order to target DPAA (direct participants in armed attacks) in self-defense.
see the older Denver draft (now at the printers with an addendum re: the death of bin Laden) http://ssrn.com/abstract=1718548
And Harold Koh has used 51 self-defense as part of the justification for targeted killing. http://ssrn.com/abstract=1520717
There has never been a War on Terror as it is, there simply have been a War in Iraq and a War in Afghanistan. It is a conflict between States, not between a State and an organization. If we begin to accept the doctrine that States can wage war against non-State actors soon we will find ourselves in a War on Crime where common criminals may be regarded as the enemy and simply obliterated without any trial at all, all in the name of the war effort.