The DoJ White Paper’s Fatal International Law Flaw — Organization

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic — the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted):

Claiming that for purposes of international law, an armed conflict generally exists only when there is “protracted armed violence between governmental authorities and organized armed groups,” Prosecutor v. Tadic, Case No. IT-94-1AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70 (Int’l Crim. Trib. for the Former Yugoslavia, App. Chamber Oct 2. 1995), some commenters have suggested that the conflict between the United States and al-Qa’ida cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O’Connell, Combatants and the Combat Zone, 43 U. Rich. L. Rev. 845, 857-59 (2009). There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this potential issue, the Department looks to principles and statements from analogous contexts.

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for instance, even in a traditional international conflict.  Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qaida may have no single site serving as their base of operations.

If an operation of the kind discussed in this paper were to occur in a location where al-Qa’ida or an associated force has a significant and organized presence and from which al-Qa’ida or an associated force, including its senior operational leaders, plan attacks against U.S. persons and interests, the operation would be part of the non-international armed conflict between the United States and al-Qa’ida that the Supreme Court recognized in Hamdan.

In one important respect, this analysis is absolutely correct: as long as the US is engaged in a NIAC with an al-Qa’ida group in a particular location — because the organization of the group and the intensity of the hostilities there satisfy Tadic — any member of that al-Qa’ida group can be targeted anywhere in the world.  In such a situation, contrary to what scholars like O’Connell argue, there is no need to find Tadic-level hostilities in the location where the member of that al-Qa’ida is located. The laws of war, in this regard, are indeed completely aspatial.

But here we come to the White Paper’s fatal flaw.  Notice that it completely ignores one of the two constitutive elements of the Tadic test: the organization requirement. The White Paper simply assumes that “al-Qa’ida and its associated forces” constitute a single organized armed group for purposes of IHL — “a transnational, non-state actor” that is “one of the parties” involved in “the non-international armed conflict between the United States and al-Qa’ida that the Supreme Court recognized in Hamdan” (emphasis mine). Indeed, the White Paper must make that assumption because, by its own admission, what justifies targeting a “senior operational leader” away from an active battlefield is precisely that, as a member of “al-Qa’ida or an associated force,” he takes part in that NIAC.

The assumption that “al-Qa’ida and its associated forces” constitute a single organized armed group for purposes of IHL, however, is deeply problematic. Here is a snippet of my essay on signature strikes (citations omitted):

For various groups that call themselves AQ or associate themselves with AQ to qualify as a single party, they must – at a minimum – share a common command structure.  That requirement has been accepted by the ICTY, by the ICRC, and by scholars – and it means that different terrorist groups cannot be considered one organization simply because they share the same ideology.

There is little evidence, however, that the various terrorist groups that call themselves AQ or associate themselves with AQ possess the kind of integrated command structure that would justify considering them a single party involved in a global NIAC with the U.S.  According to Kenneth Anderson, “Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than vertical organizations linked by command central.”  Similarly, Bruce Hoffman insists that, since 9/11, AQ “has become more an idea or a concept than an organization; an amorphous movement tenuously held together by a loosely networked transnational constituency rather than a monolithic, international terrorist organization with either a defined or identifiable command and control apparatus.”  Indeed, even the U.S. government rejects the idea that AQ is a unified organization, dividing AQ into three separate tiers: (1) core AQ; (2) “small groups who have some ties to an established terrorist organization, but are largely self-directed”; and (3) “homegrown extremists’ who ‘have no formal affiliation with al Qaeda, but… are inspired by its message of violence.”

The actual organization of “al-Qa’ida and its associated forces” fatally undermines the White Paper. If those terrorist groups do not form a single organized armed group, there can be no single NIAC between the US and “al-Qa’ida and its associated forces.” And if there is no single NIAC between the United States and “al-Qa’ida and its associated forces,” the US cannot — by its own standards — justify targeting anyone who is a “senior operational commander” in one of those groups simply by citing the existence of the hostilities between the US and al-Qai’da in Afghanistan. On the contrary, in order to lawfully target a “senior operational commander” in a terrorist group that does not qualify as part of al-Qaida in Afganistan, the US would, in fact, have to show (under Tadic) that there is a separate NIAC between the US and that group where that group is located.

It is possible, of course, that the US could make the requisite showing. But the White Paper never even considers the issue, because of its flawed understanding of the Tadic test. As a result, the White Paper authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law.