Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin

by Jens David Ohlin

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

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.

12 Responses

  1. Jens,

    Whom are you thinking of when you write “[t]he armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries”?  I don’t know any scholar who makes that claim simpliciter.  “Traditional” internal NIACs often spilled across state borders, yet it has always been assumed that the conflict remained a NIAC (barring internationalization due to the intervention of a state on behalf of the NSA, of course).  Indeed, the one judgment that has embraced the claim that a cross-border NIAC cannot exist — the Israeli Supreme Court in the Targeted Killings case — has been nearly universally rejected by scholars.

  2. Response…
    From a realistic and policy-oriented view (e.g., esp. re: the need for combatant status and combatant immunity which pertain in an international armed conflict), transnational should mean international (internationalized).
    But, although some members of al Qaeda are in a real theatre of war in Afghanistan and parts of Pakistan, the U.S. cannot be in an armed conflict with al Qaeda as such under traditional criteria and even under the Tadic preference, as supplemented in later ICTY decisions and in Tadic itself. I am waiting for the publisher to finally print my essay in the ILSA J. Int’l L. re: why the U.S. cannot be at war with al Qaeda as such (so that I can give y’all a click-on).
    Jens: congrats on the book!

  3. I must admit that it bewilders me that this issue appears to be such an issue for people.  There is nothing new under the sun.  Go back to Grotius

    “Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of the Ammonites; and [s]o may private men against Princes, but not their own, as Abraham did again[s]t the King of Babylon, and his A[ss]ociates.  So may Sovereign Princes against private men, whether their own Subjects, as David against I[s]bbo[s]eth and his Party, or Strangers, as the Romans against Pirates.”(Emphasis added)  Hugo Grotius,   Rights of War and Peace Book I 178 (1625 (1715 translation)) (Reprint 2001 Gaunt Inc.)

    We cited to this in our statement “Semper Fidelis: Keep Our Honor Clean, Presenting our Draft American Society of International Law Resolution” of around March 15, 2006

    If the Romans could fight private men surely we can fight private men.  If IAC’s are by definition between states, then NIAC’s would seem could be within a territory or across territories.  I would think that an IAC would be across territories by one state (or states) without the consent of the other state (or states) where the armed conflict is going on (as US in Afghanistan after 2002 against the Taliban and AlQaeda and Iraq) while an NIAC would be like Yemen with consent against the AQ types or Afghanistan after Karzai had effective control consent against the Taliban and AQ.  Pakistan is an NIAC in this setting though the lack of consent for the OBL raid (a very big deal for Pakistan) might be justified by the US as self-defense, but also might trigger Pakistan self-defense under Article 51.  Subsequent events would not appear to have taken us over the threshold to an IAC with Pakistan.

    As to Iran, the cyberattacks of the level revealed last week and the killing of scientists in Iran suggest to me that Article 51 of Iran might have been triggered and an IAC have started from some time back.  Now those doing these armed attacks may be trying to justify them in terms of self-defense (anticipatory/preemptive/whatever), but whatever their jus ad bellum justifications – we are in the jus in bello I am so sorry to say.

    Similarly with the Chinese stuff into the US and vice versa though the destructive match has not been lit in the way it was in Iran. We are just this side of that between China and the US it would seem.

    Boots on the ground are way too passe – like talking about whether Agamemnon should have used ships that can ram sailing across the Aegean to Troy. 

    This leaves to the side the issue of whether either side recognizes a war.  I am looking at this as armed conflict.


  4. Kevin, I was indeed referring to the Israeli Targeted Killings decision and its statement regarding NIACs, which is obviously on point here.  In a roundabout way, I was also gesturing to those who deny the existence of any armed conflict (IAC or NIAC) to NSAs proper.  See, e.g., JP’s comment above.
    Kevin, in the past you’ve expressed some skepticism about there being even an NIAC.  I think you said: “the U.S. war on al-Qaeda is at most a non-international armed conflict (NIAC).  (The correct position is that it is not an armed conflict at all.)”  So what is the basis of your skepticism that the armed conflict with al-Qaeda does not qualify as a NIAC?

  5. I have never said that with regard to any and all conflict with al-Qaeda; only in relation to low-level conflict in certain locales, such as Yemen.  I have always accepted that the US could be in a conflict with al-Qaeda in a particular location, such as Afghanistan or Pakistan, that satisfies the Tadic test.

  6. Query:
    Why is the Tadic “test” not satisfied in Yemen?  The Tadic analysis requires either a “resort to force between states” or “protracted armed violence between governmental authorities and organized armed groups”.  Leaving aside for a second whether this distillation of the law is correct, it sounds like a good description of the drone campaign against AQAP.
    Furthermore, the Tadic court went out of its way to conclude that the “temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities.”

  7. Tadic appears way to physical world/physical fossils in the thinking.  Take a look at this article on Shodan  The space I would submit is larger and deeper.

  8. Response…
    Jens: I did not mean, and have never stated that states cannot be in an armed conflict with non-state actors. It is well known that the U.S. Civil War involved what we would term and international armed conflict to which all of the customary laws of war applied (between the United States and the CSA, a “belligerent,” non-state actor) and that the U.S. has been involved in wars with Indian nations and tribes prior to the creation of common art. 3 of the Geneva Conventions, when NIACs or insurgencies as such came into the picture. My soon-to-be-printed ILSA J. piece identifies the traditional criteria for belligerencies and insurgencies and that al Qaeda does not meet the tests, that al Qaeda does not meet the test under Geneva Protocol II, and that al Qaeda does not meet the Tadic preference, as supplemented in later decisions. This is from footnotes and text from the ILSA J. piece: See The Prosecutor v. Dusko Tadic, IT-94-1-AR72 (Appeals Chamber, Oct. 2, 1995), para. 70. See also id. (Trial Chamber, Judgment, May 17, 1997), para. 562 (“terrorist activities … are not subject to international humanitarian law”); The Prosecutor v. Boskoski & Tareulovski, IT-04-82-T (Trial Chamber, Judgment, Jul. 10, 2008), paras. 175, 177-78 (“the Trial Chamber in Tadic interpreted this test … as consisting of two criteria, namely (i) the intensity of the conflict, and (ii) the organization of the parties to the conflict” and “care is needed not to lose sight of the requirement for protracted armed violence …, when assessing the intensity of the conflict. The criteria are closely related”), 185 (regarding “protracted” violence, what matters is whether the acts are perpetrated in isolation or as part of a protracted campaign that entails the engagement of both parties in hostilities,” and quoting The Prosecutor v. Kordic: “‘[t]he requirement of protracted fighting is significant’”), 199-203 (identifying various other factors); The Prosecutor v. Musema, ICTR-96-13-T (Trial Chamber, Judgment, Jan. 27, 2000), para. 248 (“The expression ‘armed conflicts’ introduces a material criterion: the existence of open hostilities between armed forces which are organized to a greater or lesser degree”); Rome Statute of the International Criminal Court, art. 8(2)(d) (“isolated and sporadic acts of violence” are not “armed conflict”), 2187 U.N.T.S. 90. Al Qaeda does not engage in a “protracted campaign that entails engagement of … [other] parties in hostilities,” “open hostilities,” or use “armed forces” in “protracted fighting.” It should be noted that Professor Cassese, as Judge in the Appeals Chamber of the ICTY, wrote the opinion noted above in Tadic, and he later recognized that members of al Qaeda are mere civilians engaged in criminal activities. Cassese, supra note 9, at 410.
    Even under this [Tadic] preference, however, it is evident that al Qaeda is not an “organized armed group” and that, outside the theatre of the real Afghan war, al Qaeda does not engage in “protracted” armed violence or “armed force” as opposed to sporadic or isolated acts of violence, especially as such phrases have been further clarified in subsequent cases. Responding to such a preference, other textwriters, including those who participated in a report for the International Law Association, underscore that protracted armed violence exists only where there is intense fighting. Clearly, al Qaeda does not engage in intense fighting outside the theatre of the Afghan war, and it is doubtful that al Qaeda as such has ever done so in the theatre of war.
    p.s. the fact that the U.S. continues to target members of al Qaeda in self-defense does not mean that an armed conflict with al Qaeda has been occuring. Self-defense targetings do not necessarily creat war in any event.

  9. Jordan, thank you for this very helpful comment.  And i am looking forward to reading the ILSA piece as soon as it is published.  Please mail me a reprint when it does.  Your footnote is helpful too.
    My close reading of Tadic, however, does not accord with yours.  On deeper examination, the court reiterates over and over again that a narrow, geographically constrained definition of armed conflict needs to be avoided:
    “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.
    Furthermore, page 69 of the opinion states that IHL applies even outside of the “narrow geographical context of the actual theatre of combat operations”.

  10. Response…
    Jens: I don’t think that we disagree that once there is an armed conflict between the U.S. and al Qaeda as such (which is the critical question), the geography expands to at least that fully within the theatre of war or of the armed conflict (which is not to say merely within the theatre of actual combat operations within the overall theatre of war, which I think is what the quoted language is stating). But, I should have been more clear here, we are in an armed conflict with the Taliban in Afghanistan but, in my opinion, not with al Qaeda as such (anywhere) even though some members of al Qaeda are surely fighting (as unprivileged civilians) in the theatre of the U.S. war with the Taliban (which has also migrated de facto into parts of Pakistan). Note also that U.S. Army FM 27-10, para. 31 states that the prohibition of treacherous killing does not apply to attacks on individual soldiers  or officers of the enemy whether in the zone of hostilities, occupied territory or elsewhere. The phrase “or elsewhere” raises the question whether targeting during war is permissible outside the overall theatre of war (e.g., with respect to the Afghan war with the Taliban, in Germany). This is a more intriguing issue.

  11. Jens,

    I should have been more specific — at the time I made the comment you quoted, I did not believe that the conflict in Yemen satisfied Tadic.  I now think that it does — at least in terms of the conflict between AQAP and the Yemeni government.  I do not think there is a separate NIAC between AQAP and the US; the US is simply intervening on behalf (kind of…) of the Yemeni government in its NIAC with AQAP.

  12. C’mon ILSA as we await the Jordan!  I see the criteria being argued but find it hard to view AQ not having reached the relevant thresholds whatever the thresholds in the 1993 to current settings. I note “sporadic” and “isolated” but raise the question of whether “spectacular” takes one to a place that is not “sporadic” or “isolated.”  I suspect there is a temporality dissonance as to what amounts to “sporadic” or “isolated” for different persons viewing the situation.  This stuff is not like the Red Army Faction type terrorist attacks or Action Direct.

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