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

by Kevin Jon Heller

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.

http://opiniojuris.org/2013/02/05/the-doj-white-papers-fatal-international-law-flaw/

25 Responses

  1. Would the Tadic test require an independent determination by the US that an armed group (let’s say AQAP) is integrated into the command structure of al-Qaida? In other words, would the Tadic test be satisfied if AQAP claimed that it is part of al-Qaida, but the US could not independently verify that claim?

  2. Zach,

    The importance of Tadic is that it is an objective test — it bases the existence of a NIAC (and thus the applicability of the laws of war) on the facts on the ground, not on the subjective beliefs of the parties to the (supposed) armed conflict. A claim by AQAP that it is integrated into AQA’s command structure is clearly relevant evidence that it is, in fact, so integrated. But it is by no means dispositive. It’s still an objective determination.

    As for the standard of proof that would apply… that’s a question for another day.

  3. Kevin,
    With respect to the DoJ’s position that the US can target anywhere in the world even when not in a combat zone or zone of hostilities, you claim:
    “In one important respect, this analysis is absolutely correct: as long as the US is engaged in a NIAC with a terrorist group in a particular location — because the organization of the group and the intensity of the hostilities there satisfy Tadic – any member of that terrorist 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 the terrorist group is located. The laws of war, in this regard, are indeed completely aspatial.”
    To me your view here appears to overstate the issue. With respect to international armed conflict I seem to remember that the Appeals Chamber of the ICTY stated in Tadic that international humanitarian law applies throughout the entire territory of the States engaged in an armed conflict. Using an a contrario reasoning, this would imply that it does not apply in the territories of other States. This is supported also by reference to common article 2 of the Geneva Conventions, which indicates that they apply to the “partial or total occupation of the territory of a High Contracting Party”.
    Regarding a non-international armed conflict, common article 3 of the Geneva Conventions indicates that this takes place “in the territory of one of the High Contracting Parties” and article 1(1) of Protocol II repeats this while adding other applicability conditions. We would probably accept that the territorial applicability could be extended where armed groups operate from (the border area of) a neighbouring country, but that I suggest is the limit to applicability.
    The situation under customary international law could be different, though clearly it would accept applicability of international humanitarian law in situations similar to those indicated in the Geneva Conventions and their Protocols. Whether State practice and opinio iuris exist that support the American claim that this is a different type of conflict and that a State may, invoking international humanitarian law, legitimately target terrorists anywhere in the world may be doubted (though I will freely admit that I have not looked into this). Yet to say that the laws of war are completely aspatial to me seems to overstep the mark.
     

  4. Andre,

    I don’t think the ICTY was addressing the issue discussed here — the targetability of a member of an organized armed group who is outside of the theater of active conflict.  It was simply discussing the limits of the theater of active conflict itself.  I don’t see how the targeting rules could be spatial in the way that you suggest; that would mean (1) a member of an organized armed group (in a NIAC) or a member of an army (in an IAC) would not be targetable the minute he ran across the border into a neighbouring state not involved in the conflict, and (2) organized armed groups and state armed forces could insulate their fighters from attack simply by stationing them outside of the states involved in the conflict. Neither situation, I would suggest, is supported by IHL.

  5. I largely agree with Kevin, here, but with some nuance.  In my view, “associated forces” must be engaged in coordinated military operational activity with a party to a NIAC to become party to that existing armed conflict.  Kevin’s belief, if I read him correctly, that such a force must fall within the organizational structure of one of the parties is too high, in my humble opinion.  However, such a party must have at least some minimal level of internal organization and external communication/coordination with a party to the NIAC.  The U.S. relationship with the “Northern Alliance” in the initial stages of the conflict in Afghanistan is probably a good example that exceeds the level of internal organization and external communication that I believe adequate. I further agree that ideological alignment is insufficient and, in fact, unnecesary.

  6. I do not doubt, Kevin, that an Al Qaeda operative acting far away from an active theatre of hostilities, involved in the planning of attacks, is a civilian directly participating in hostilities and thereby loses immunity from attack. My point is that there are limits to the applicability of international humanitarian law. An Al Qaeda operative in Australia cannot be targeted there because international humanitarian law is not applicable in Australia, since there is neither an international armed conflict in existence between the US and Australia, nor is a non-international armed conflict taking place in Australia.
     
    That is the point of my reference to common article 3 of the Geneva Conventions and article 1(1) Protocol II, which both talk about an armed conflict occurring in the territory of a High Contracting Party. Note that the provisions are using the singular when it comes to the territory of a High Contracting Party and do not support the idea of an armed conflict in the territories of (more than one or all of) the High Contracting Parties. If international humanitarian law is not applicable, there is no combatant’s privilege, no distinction between military objectives and civilian objects, and hence no occasion for targeting rules to be invoked against individuals that directly participate in hostilities.
     
    With respect to the examples that you mention, the first could be covered by the extension I suggested, though even then this is not given as a matter of logic. Ordinarily, if a person suspected of crimes pursued by the police flees onto the territory of a neighbouring State, the police are required under international law to stop at the border. If a warship or coastguard ship is engaged in hot pursuit, such a ship needs to cease the pursuit if the ship pursued reaches the territorial waters of a foreign State. There is nothing uncommon in international law to see legal limits to the actions of authorities when it comes to the territory of foreign States.
     
    As to the second example, the kind of limitation suggested is given in international armed conflict, since troops of one party to the conflict stationed on the territory of a third State could not be attacked by the other party to the conflict, since no armed conflict would exist in which that third State is involved (I note that the White Paper suggests differently when the territory of a third (neutral) State is used by a belligerent as a base of operations; however, it then only refers to one example of US practice and the opinion of a US legal adviser of the time). Regarding non-international armed conflict, I think the limiting terminology of common article 3 of the Geneva Conventions and article 1(1) Protocol II suggests the same. Whether customary international law accepts the extension of armed conflict to the territories of all States in the world is something we could debate.

  7. “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.”
    Christ this is Orwellian.  The caption of that case was Hamdan v. Rumsfeld, it was a lawsuit against the Secretary of Defense.  Why would anyone think the Hamdan decision– or for that matter the Rules of Land Warfare– apply to CIA piloted drones when only uniformed members of the Armed Forces have combatant’s privilege?

  8. I think Kevin’s analysis here, on the central importance of the “organization” component of the Tadic test and the memo’s failure to address it, is spot on; and it is a helpful contribution to the ongoing discourse surrounding the US claim to be in a transnational NIAC with Al-Qaeda and associated forces. I do not see Kevin’s analysis as inconsistent with the issue that John has raised either – I don’t read Kevin to be arguing that AQAP must be within the integrated command structure of AQ in order to be in an NIAC with the US, but rather, if it is not within the integrated command structure of AQ, then whether or not the US is also involved in a NIAC with AQAP is a question that must be independently determined pursuant to the Tadic test. AQAP, if not a sufficiently organized armed group, and not itself engaged in hostilities with the U.S. of sufficient duration and intensity to satisfy the Tadic test, cannot simply be folded into the NIAC with AQ on the grounds that it is providing some assistance to AQ in its attacks on the U.S. outside of Afghanistan.

    On the other hand, I too question the assertion that there are no geographic or spatial limits to the scope of NIAC. I am currently doing some work on this and have not yet come to a landing on it, but I tend to share Andre’s caution on this point. Is it really the case that the Nicaraguan government could have sent a team to Paris to kill a group of Contras who were found to be there, regardless of whether they were there to buy arms, or to visit the Louvre? There are, of course, issues here relating to the violation of French sovereignty and the status of the Contras, but assuming for the moment that the French consented to the action, and that the Contras were accepted as being “combatants” in the NIAC then raging in Nicaragua, would the killing be a legitimate act under LOAC? I am not so sure.

    The two assumptions in that hypothetical point to two other problems with the memo – (1) its treatment of the use of force against states “unwilling or unable” to prevent the activity of AQ and associated forces, which is just one of a number of problems in its analysis of the jus ad bellum issues, and in particular the doctrine of self-defense; and (2) its failure to fully address the question of who, exactly, among the membership of AQ and “associated forces” can be classified as “combatants”, how that status is determined, and how those members who cannot be thus classified are determined to be directly participating in hostilities for the purposes of targeting, as was discussed by the Israeli Supreme Court in the Targeted Killing case. But those are for another day.

  9. Good stuff. I’d like to see further development for your citations for the facts and law regarding single organization along the following lines. Is Anderson an AQ expert? What’s his source? Hoffman’s phrase, “loosely networked transnational constituency” doesn’t help much. Network implies collaboration, conspiracy, cooperation, common purpose. Is there primary source intelligence material available,or do we have to rely on opinions and hearsay as to the org structure of AQ? The ICTY spent countless resources untangling structures in the former Yugoslavia, it can’t be that simple with AQ, a much less visible and distributed organization/s.
    Regarding the law, what was the single org that Tadic dealt with? Did it effectively cast (and have to) a test for what constitutes a single org? If not, it’s words on that are dicta. 

  10. ICTY Tadic, paragraph 94, page 38
    “In order for irregulars to qualify as lawful combatants, it appears that international rules and State practice therefore require control over them by a Party to an international armed conflict and, by the same token, a relationship of dependence and allegiance of these irregulars
    vis-à-vis that Party to the conflict. These then may be regarded as the ingredients of the term “belonging to a Party to the conflict””http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf

    … suggesting a requirement for a clear “organizational” dependence and allegiance to the primary Party in the conflict. Thus, ideological conformity or even common goals do not appear sufficient.

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