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

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.

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