Guest Post at Just Security About “Belonging to” and Associated Forces

by Kevin Jon Heller

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction:

In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.” According to Ryan, the US is involved in a NIAC with al-Qaeda’s associated forces because they “belong to” al-Qaeda for purposes of the rules of IHL governing targeting and detention. Here is what he said, nominally in response to Christof Heyns’ assertion in his recent UN report on extrajudicial killings that an associated force must “form part” of al-Qaeda for its members to be targetable and detainable:

Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention.

I disagree with Ryan that the concept of “belonging to” can be applied in non-international armed conflict (NIAC). In this post I explain why.

Because Just Security does not have a comment system, interested readers should feel free to leave comments here.

http://opiniojuris.org/2013/10/23/guest-post-just-security-belonging-associated-forces/

4 Responses

  1. The quoted statement is a very strange statement (perhaps taken out of context?).  First, Article 50(1) of Protocol I says nothing of the sort.  It merely directs attention to GPW art. 4(A)(1), (2), (3), and (6) as well as Article 43 of the Protocol, while stating that persons in such categories are not civilians.  Second, it is difficult to shove al Qaeda and its associates into the word “militias” or the phrase “volunteer corps” as used in connection with laws of war during an international armed conflict (e.g., their history, common meaning and expectations).  It also seems strange to consider them to be “organized resistance movements, belonging to a Party to” an international armed conflict — which is what Protocol I addresses.  The phrase “associated group” is potentially far too broad a concept when compared with the more limited meaning of the words and phrases above.
    Second, a state simply cannot be at war or in an armed conflict with al Qaeda, much less loosely “associated” groups, under traditional criteria or even that set forth in Article 1(1) of Protocol II [ see http://ssrn.com/abstract=2165278 ] – which one would expect to be more relevant than Protocol I for persons who mistakenly think that the U.S. can be in a NIAC with al Qaeda.

  2. p.s.  does any al Qaeda “affiliate” “belong to” a Party to an international armed conflict? Does al Qaeda “belong to” a state?  Has al Qaeda ever complied with the rest of Article 4(A)(2) of GPW (e.g., “being commanded by a person responsible for his subordinates,” “carrying arms openly,” “conducting their operations in accordance with the laws and customs of war”)?

  3. RELATED: new op ed at Jurist re: why Amnesty International’s new Report on Drone Targetings used the wrong legal standards, see
    http://jurist.org/forum/2013/10/jordan-paust-drones-justifications.php
    enjoy!

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