No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack. The 1998 attacks that Margulies mentions — al-Qaeda’s bombings of the US embassies in Tanzania and Kenya, and the cruise-missile attacks launched by the US in Afghanistan and Sudan as part of the hyperbolically-named Operation Infinite Reach – do not constitute the kind of “protracted armed violence” that Tadic requires, no matter how intense they may appear to Margulies. More importantly, though, those attacks took place more than two years before the attack on the USS Cole, with no significant hostilities between al-Qaeda and the US in the interim. It is thus even less plausible to argue that the 1998 attacks created a NIAC between the US and core al-Qaeda that persisted until the attack on the USS Cole in 2000. That’s simply not the way NIAC works: once hostilities are no longer adequately protracted, NIAC ends until adequately intense armed violence begins again — at which time a new NIAC is created.

Margulies, it’s worth noting, seems to recognize that his international-law argument is flawed. Here is what he argues later in his post:

Al-Nashiri’s argument relies on a stylized view of the nature of armed conflict that bears little similarity to actual wars. Wars frequently feature peaks and valleys. Consider the “Phony War” between Germany and the Allies in 1939-40 after Germany’s conquest of Poland. In current events, consider the uneasy impasse that prevailed in the Ukraine between Russia’s March move into Crimea and Friday’s fighting between Ukraine’s government and pro-Russian militias – not peace, to be sure, but a pause with little actual violence. Israel’s continuing armed conflict with Hamas has the same episodic character. Sporadic violence may not fit the stereotype of war, but it has always been part of war’s reality.

Margulies’ first two examples are irrelevant to whether a NIAC can survive “peaks and valleys” in fighting, because they are classic international armed conflicts: unlike NIAC, which requires protracted armed violence, an IAC is triggered and maintained by any use of interstate force. (It is also triggered, of course, by a formal declaration of war — as was the case with the Phoney War.) And his third example mixes apples and oranges, because the episodic conflict between Israel and Hamas has taken place largely, if not completely, in the context of a belligerent occupation, making it an IAC, as well. (To be sure, some consider the events in Gaza between December 2008 and January 2009 to have created a separate NIAC — but that position actually hurts Margulies’ cause, because it foregrounds that NIAC exists only when hostilities between a state and an organized armed group are genuinely protracted.)

Margulies may be right that “sporadic violence… has always been part of war’s reality.” Unfortunately for him, such violence is anathema to the law’s reality regarding non-international armed conflict. There was no protracted armed violence between the US and core al-Qaeda in 2000. So there was no NIAC between the US and core al-Qaeda when al-Nashiri allegedly masterminded the attack on the USS Cole.

http://opiniojuris.org/2014/05/06/attack-uss-cole-take-place-armed-conflict/

6 Responses

  1. Kevin,
    Without suggesting one way or the other that the facts support such a conclusion, what is your view on whether the attack on the USS Cole was the first act of violence in what then became a NIAC? In other words, is the first shot part of the NIAC, or only the subsequent shots?

  2. John Yoo takes a similar position regarding the crime of piracy, claiming that acts of violence off the coast of Somalia should be tried in military tribunals.  He asserts that “Piracy is inherently a warlike enterprise, and in its present form off the Somali coast it has reached higher levels of violence than some wars do.” If pirates could be prosecuted in military tribunals due to the existence of a armed conflict, the protections afforded by the Geneva Conventions are also applicable. Conduct by private security companies would then be subject to a more rigorous set of criteria than is currently the case and could be tried as war criminals themselves if, for example, acts of violence were committed against suspected pirates who turn out to be unarmed fishermen. I’m not sure this is what John Yoo had in mind.

  3. Ian,
    I am not sure what Kevin thinks, but I am not warm to the idea of the “first shot” nature of the USS Cole attack.  It was, in fact, not the first shot at all.  There were the embassy bombings in 1998, to which there was an armed U.S. response, and the prior attempts on the twin towers. 
    As I have mentioned here at OJ before, the Supreme Court’s decision in Hamdan skirted the issue of the inception of the armed conflict with Al Qaeda, even though it was squarely presented by the decision to charge pre-9/11 conduct.  At that time, I think Justice Thomas indicated that he would have taken OBL’s declaration of jihad in 1996 as the starting point.  I have read somewhere that there is an OLC memo that concludes the US was in an armed conflict with Al Qaeda as early as 1998.  (This makes sense if the CIA was going after OBL and didn’t want it to be viewed as prohibited assassination.)
    The bottom line is that there is a genuine question of fact here given the sporadic nature of the “hostilities” and the schizophrenic U.S. responses to attacks, in which it used both law enforcement and military tools.  Even the Supreme Court has yet to squarely address the question, the In re Yamashita requires it to do so.
    Best,
    John

  4. The Tadic attempt to change the threshold was modified later in ICTY decisions and was incorrect.  Even under the modified ICTY preference, the U.S. has not been and cannot be in an armed conflict with al Qaeda (and certainly cannot be under the CIL objective criteria or the criteria set forth in Geneva Protocol II) — see http://ssrn.com/abstract=2165278  However, this does not mean that the U.S. could not respond as a matter of self-defense.  see http://ssrn.com/abstract=1520717
    Since the military commision at GTMO is a “law of war” military commisssion (see Hamdan), there should be no jurisdiciton over conduct that was not violative of the laws of war.  John Yoo’s nonsense about pirates per se demonstrates partly why the threshold for armed conflict should not be lowered in the future.

  5. p.s. after the real war involving the U.S. and other countries in Afghanistan after Oct. 7, 2001, it is ceretainly possible that someone in Yemen who is a DPH or who has a CCF function directly participated in the war in Afghanistan from and/or within Yemen — just as some members of al Qaeda who were DPH and/or CCF participated in the war in Afghanistan from Pakistan (and who were or could have been targetd while they were DPH or CCF because the theatre of war migrated de facto over their heads — see http://ssrn.com/abstract=1718548 )

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