A Reply to Goodman Re: War/Not War with Al-Qaeda

by Kevin Jon Heller

Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:

Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.

I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.

The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.

Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.

But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).

Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.

Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.

Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.

Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.

http://opiniojuris.org/2013/09/23/ryan-goodman-warnot-war-al-qaeda/

8 Responses

  1. You seem to miss, & misconstrue, the logic of R.G.’s piece.
     
    (1) R.G. observes that — & briefly documents how – “the center of expert opinion in reaction to US counter-terrorism policy has vacillated on this key legal question.” This is what you call an “inconsistency of outcome.”
     
    (2) R.G. seems to acknowledge an underlying “consistency of principle” in the legal community over the last twelve years or so, namely: a desire to “afford greater humanitarian protections” & a commitment to seeing “the rule of law and respect for the international legal regime … maintained at a high level.”
     
    (3) The thrust of his piece seems to be this: that the legal community’s consistency of principle will be best served by, & best reflected in, a consistency of outcome vis-à-vis the question of “the existence of an armed conflict” with Al Qaeda.
     
    That is to say – pace the rather glib Emerson line in the last paragraph of your piece — consistency (“of outcome”) on this question is by no means a foolish consistency, if it will (as R.G. argues) better protect & reflect the legal community’s consistency of principle.
     
     

  2. “war” — a term that has always been reserved for armed conflict between states.
    So the Revolutionary War was not a war because Britain did not recognize the colonies as a state, and the Civil War was not a War because the CSA was not a state, and the Korean War was not a war because the DPRK (North Korea) was not at the time regarded as a state, and the Vietnam War was not a war because the Viet Cong were not a state. Sounds like a lot of history books need to be rewritten.

  3. The Revolutionary War was a war between Britain, the Colonies, France, and Spain. The CSA was recognized as a belligerent by Europe and by the US Supreme Court. The Korean War involved Korea, the US, China, and the Soviet Union. There were 15 or so states involved in the Vietnam War in various capacities — and, of course, the US formally referred to it as a “police action.” (Korea, too.) So, no, the history books do not need to be rewritten.

    In IHL, war is a term of art — referring to declared wars between states. It was that use of “war” to which Cassese was referring, as the article Ryan links to makes clear.  War is also, of course, an obsolete term of art, the last formal declaration of war taking place in 1945 when Russia formally declared war on Japan.

  4. Thanks for addressing this shortcoming in Mr. Goodman’s entertaining analysis. To further your response, Professor Heller, our being at war with AQ and the Taliban does not necessarily mean that we are at war with groups that did not exist in 2001. I believe that the fact-specific determination must be made anew in such cases. So one could consistently state that we are at war with one entity, but not with another.
    Also, while Facebook and Twitter are poor forums for discussions, they’re good for publicizing a new blog. I hope that the Just Security board decide to shift to a comments section when their readership is established.

  5. Recognizing a non-state party as a belligerent allows the foreign governments to sell them weapons, but it does not turn them into a state. If, however, you amend the statement to say that “war” is a term involving a conflict with either a state or a non-state belligerent, then that might be more reasonable.
    Neither China nor the Soviet Union regarded themselves as parties to the Korean conflict. For one thing, “China” at the time referred to a government occupying the island of Taiwan (according to both the US and the UN). The non-state government occupying Peking did not claim to be directly involved in Korea, but asserted that “volunteers” had crossed the border to aid the DPRK (thus creating a non-non-state party to an armed conflict along with the local non-state party).
    Having more than one state on just one side (Vietnam) of a NIAC does not turn the NIAC into an IAC. For that matter, the entire UN was on one side of the Korean War, but that did not change the fact that the other side was a non-state party with no legally recognized foreign allies.
    However, it is at least plausible that the Continental Army, CSA, DPRK, and VC were belligerent parties receiving weapons and aid from a variety of legally uninvolved foreign countries (although France did belatedly become allied with the US at the end).

  6. Kevin is correct that “war” has existed between states and “belligerents”.  It has also existed between states and “nations,” “tribes,” and “peoples.”  There have always been other formal actors than the “state.”  More generally, international law has never been merely state-to-state. However, common art. 3 of the GCs brought forth a major change, a new actor, the “imnsurgent” and a word such as NIAC.
    If one had hoped that nearly all textwriters would agree about an issue such as whether the U.S. and al Qaeda as such could ever be at “war” or violence between the two would constitute an “armed conflict,” one would be disappointed — but so?  Some seem to offer conclusions without attention to various criteria used to determine whether an armed conflict of any sort exists (e.g., whether the lowest level of armed conflict, an insurgency, exists) and some may never agree — and so?  Applying recognized criteria in an objective manner, it seems unavoidable that the U.S. cannot be at war with al Qaeda as such (although they have engaged in violence against each other in a theatre of a real war in Afghanistan that has also migrated de facto to parts of Pakistan) — see
    http://ssrn.com/abstract=2165278
    Has the US Exec. been consistent? No — and so?  Bush “Jr.” had his “war on terror” while Obama has his “war” with al Qaeda as such (both in error).
    Human rights?  human rights law is applicable even during a war!  But what is “arbitrary” detention (ICCPR, art. 9) or “arbitrary” killing (ICCPR, art 6) during war?  And who is protected outside territory of a state or territory that it occupies or the equivalent of its territory (e.g., its war ship) under the “effective control” test?  Does human rights law under the major international treaty, the ICCPR, change anything on the battlefield with respect to persons who are not within the “effective control” of a state? 

  7. Among the legal requirements to identify a conflict as a NIAC, there is also the territorial one. A NIAC occurs within a State. This is not the case in the US-AQ so called war.

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