Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin
This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.
In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda? Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization? Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.
Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research. Here is my thinking: At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification. The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries. On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC. It not falling into either sub-category, it cannot be an armed conflict at all.
I find this argument suspicious, though my thinking on the issue is still evolving. I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict. That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC). That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC. I found this argument persuasive.
If, on the other hand, one sticks with the definition of NIAC as being an armed conflict that does not cross state boundaries, then I find little support for the conclusion that IAC and NIAC occupy the entire field of armed conflicts. When the two concepts are not defined in opposition to each other, the warrant for concluding that together they exhaust the notion of armed conflict seems rather thin.
The traditional answer to this query has been Geneva and the definitions contain therein (assuming one does not accept the interpretation of those definitions offered by the Supreme Court in Hamdan). But I have never been convinced by this answer. Geneva was not trying to define armed conflicts in abstracto. Geneva was an attempt to codify regulations regarding them, and it stands to reason that the state parties were mostly concerned with, at the time, regulating conflicts between them qua state parties. The definitions in Geneva were an attempt to define the armed conflicts that fell under the umbrella of the Geneva provisions. These were mostly IACs and, with regard to Common Article 3, certain NIACs that took place on the territory of the state parties. To then jump to the conclusion that transnational NIAC (or whatever you want to call them) are impossible is to assume that CA3 was an attempt at definition per se, rather than definition for the purposes of regulation and codification.
Part of my willingness to recognize the possibility of an armed conflict with a NSA is my general feeling that some international law scholarship is far too statist and positivist. The world is full of all manner of non-state entities that are already implicated, protected, or regulated by international law: individuals and corporations (human rights & obligations), conspiracies and joint enterprises (liability under ICL); peoples (self-determination), protected groups (genocide), UN & international agencies (responsibility). Unless one is entirely willing to ignore all of these categories – but who would deny the right of self-determination? – it cannot be the case that international law can be reduced to the legal relations between nation-states simpliciter. We might wish that it were so, but it is impossible. The world is composed of diverse collectives, only some of which can be described as nation-states and admitted to the United Nations. Denying this fact strikes me as a lawyerly conceit that threatens to turn international law into an abstract construct that fails to track the reality on the ground.
What international law scholarship needs, therefore, is more attention to the nature of these non-state entities, their structure, and their rational agency (to the extent that they exhibit it). So far, this is an inquiry that some classically trained public international law scholars have shied away from, but the current rise of legal problems associated with NSAs demonstrates that this willful ignorance is no longer a satisfactory strategy for scholarship or practice.