Pages

Search This Blog

Tuesday, November 13, 2007

Armed Conflict With Al Qaida? by John Bollinger

http://www.opiniojuris.org/posts/chain_1169503291.shtml

Armed Conflict With Al Qaida?
by John Bellinger
My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?

I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.

The phrase "the global war on terror"—to which some have objected-- is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.

Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)

Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.

We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.

So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.

Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.

Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.

Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.

Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.

For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.

The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.

One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.

Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.

All Related Posts (on one page) | Some Related Posts:

1. Sincere Appreciations to John Bellinger
2. Bidding John Bellinger Adieu
3. Wrap Up Discussion II...
25. Armed Conflict With Al Qaeda: A Riposte
26. Armed Conflict With Al Qaida?
27. The Work of the Office of the Legal Adviser
28. Opinio Juris Welcomes State Department Legal Adviser John Bellinger

2 comments:

Michele Kearney said...

Armed Conflict With Al Qaeda: A Riposte
by Charles Garraway
[Opinio Juris welcomes Professor Charles Garraway as a guest respondent. Professor Garraway is a Visiting Professor of Law at King’s College, London, an Associate Fellow at Chatham House, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is a former Stockton Professor at the United States Naval War College, Newport, Rhode Island.]

There is an old Irish saying about the foreigner who when asking an Irishman for directions to the nearest town received the reply ‘I wouldn’t start from here!’. Eloquent though John Bellinger is, I feel he is somewhat like that foreigner! However, as he fairly points out, he has no choice but to start from ‘here’, even if the ‘here’ is not of his choosing.

I agree with much of what John Bellinger says. The United States was fully justified in taking action in self defence following the attacks of 9/11. I also accept that both Common Article 3 and both Additional Protocols recognize that it is possible to have an armed conflict against a non-state actor. Indeed, I would go further and say that it is possible to have an armed conflict involving only non-state actors. This is not uncommon in failed state scenarios. However, all these legal instruments envisage such conflicts as being limited to the territory of a single state. Even Additional Protocol I, with its controversial Art.1(4), cited by John Bellinger, merely applies the international law of armed conflict to an internal situation. In declaring a global war against Al Qaeda, the United States broke new ground. But was it necessary?

In so far as Afghanistan itself is concerned, there was clearly an international armed conflict between the Coalition (not just the United States!) and Afghanistan. The Taliban were the de facto Government of Afghanistan and as such represented the state. We would not describe the conflict as limited on our side to the Republican Party (or in United Kingdom terms, the Labour Party). That international armed conflict covered all the hostilities and those taking part in them. For those who actually have to do the fighting, to try to divide the conflict into two parts, one against ‘the Taliban’ and the other against ‘Al Qaeda’ is nonsensical. It was all the same conflict. The only distinction that might need to be made was as to the designation of captured personnel. Were they combatants who were either entitled to prisoner of war status or in some way had disqualified themselves from that entitlement? Alternatively, were they persons who had no right to call themselves combatants and who thus were what I will call ‘unprivileged belligerents’?

I agree with John Bellinger that the United States may detain those who commit belligerent acts against them during that conflict, either as combatants or as unprivileged belligerents, until the end of active hostilities in Afghanistan. This is a view supported by the Supreme Court. I also agree that there is a strong case for maintaining that active hostilities have not ceased in Afghanistan. Although some would argue that ‘unprivileged belligerents’ in the sense that I use the term, fall under the Fourth Geneva Convention and are thus entitled to extra reviews of their detention, I do not agree. An ‘unprivileged belligerent’ may be a ‘civilian’ in Protocol I language but to grant him the privileges of a civilian under the Fourth Convention is, in my view, an abuse. He has lost his protection from attack by taking a direct part in hostilities and whilst, again in Protocol I terms only, that does not make him a combatant, it cannot entitle him to greater privileges than the genuine combatant who can be detained until the end of active hostilities without review solely because of that status.

So far, whilst starting from a different point, my practical conclusions are thus no different. However, where I part company is in two areas. What happens if and when active hostilities cease and what happens to Al Qaeda operatives in other parts of the world?

For the first, I consider that under the laws of armed conflict, the detainees are entitled to release. However, that does not mean that they will necessarily be so released as different legal regimes may apply to prevent that. If any have been convicted of criminal offences, they must serve their sentences. Similarly, there are provisions under human rights law to allow for internment in situations of public emergency – and a post conflict situation usually remains that. The relationship between the laws of armed conflict and human rights law may be uneasy in this area but it is workable. Neither legal system is a suicide pact.

In so far as Al Qaeda operatives outside Afghanistan are concerned, as John Bellinger fairly points out, this would depend on the circumstances. In principle, they are criminals and would be dealt with under criminal law where that is possible. I am relieved that the United States does not ‘plan’ to shoot terrorists on the streets of London but that carefully phrased statement does not say whether the United States considers that it would be legally entitled to shoot terrorists on the streets of London! In my view, it would not, except in the most extreme circumstances. That those circumstances can exist, however, is illustrated by the shootings of the IRA terrorists in Gibraltar. Although the European Court of Human Rights ruled against the United Kingdom in that case, it so decided on narrow grounds and recognized that had the circumstances been slightly different, the shootings would have been justified. However, the justification was under domestic and human rights law, not under the laws of armed conflict.

What 9/11 and its aftermath have shown quite clearly is that, when tackling global terrorism, there needs to be a coherent legal strategy covering the whole spectrum. The answer to 9/11 is not to be found either in the laws of armed conflict or in criminal law but in a combination of both. It has been unfortunate that the advocates of each have tended to increase the divide rather than working towards a common solution where both legal regimes are used in combination, each in their respective areas, to combat the threat. The attempts to use both the laws of armed conflict and criminal law in areas for which they were not designed has damaged both.

All Related Posts (on one page) | Some Related Posts:

1. Sincere Appreciations to John Bellinger
2. Bidding John Bellinger Adieu
3. Wrap Up Discussion II...
24. Armed Conflict With Al Qaida: A Reply
25. Armed Conflict With Al Qaeda: A Riposte
26. Armed Conflict With Al Qaida?
27. The Work of the Office of the Legal Adviser
28. Opinio Juris Welcomes State Department Legal Adviser John Bellinger

November 13, 2007 8:32 AM

Michele Kearney said...

Armed Conflict With Al Qaida: A Reply
by Eric Posner
[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.]

Thanks to Roger for asking me to write a reply to John Bellinger’s post.

I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The Bush administration wants maximum flexibility in dealing with al Qaida, and understandably. What are the possible constraints? They are all familiar—the U.S. Constitution, Congress, domestic public opinion, foreign public opinion, foreign governments, and so forth. Everyone understands how these factors constrain and shape the American response to al Qaida. Another such constraint is international law. International law is spongy material, however, and it can be interpreted narrowly or broadly. The critics advance broad interpretations, interpretations that would require the U.S. government to grant rights to members of al Qaida that could interfere with anti-terror operations. The U.S. government, consistent with its goal of maximizing its flexibility, prefers the narrowest possible interpretation. As John takes pains to suggest, this does not mean that the U.S. will necessarily use the most aggressive measures available; but it does mean that those measures will always be an option.

The narrowest possible interpretation is, of course, that international law does not apply at all: the U.S. can do what it wants. Members of the Bush administration apparently considered this possibility at one time but the U.S. government has not officially adopted it. Let’s call this the “null position.” It could, for example, have argued that the international laws of war developed prior to al-Qaida-style international attacks, and cannot be considered applicable to them. We can imagine that if the Bush administration had adopted the null position, this would have provoked outrage and concern around the world. But perhaps this outrage and concern would have been worth incurring, because the advantages of being unconstrained greatly exceeded the costs. The outrage and concern would have died out as they always do, but the security benefits would have remained.

There are various possible broad interpretations. One is that the United States simply cannot treat al Qaida as a belligerent. Another is that members of al Qaida are belligerents but they are entitled to broad protections embodied in the Geneva Conventions and customary international law. Suppose (very counterfactually) that the United States had adopted a broad interpretation. Would the rest of the world have applauded? Would they have been more cooperative (perhaps by joining the invasion of Iraq or refraining from pressuring the United States to join the Kyoto treaty or the ICC)? Are there subtle types of anti-terror operations going on right now that are being hampered because foreign states refuse to cooperate with the United States as much as they would if the United States had adopted (and complied with) a broad interpretation?

The U.S. has adopted a narrow interpretation a hair’s breadth away from the null interpretation. John says, “A state acting in self-defense must comply with the UN Charter and fundamental law of war principles.” On the American position, the U.S. is complying with the UN Charter because that document allows it to go to war, in self-defense, against a non-state entity; so no constraint there. As for these “fundamental” law of war principles, well, what are these anyway? Perhaps rules like the principle of proportionality, but no one thinks that even under the null interpretation the United States would blow up a city in order to kill a handful of al Qaida members. So the narrow interpretation advanced by John is, I suspect, roughly the same (as a practical matter) as the null interpretation.

This, then, brings me to the question. If the U.S. gets all the benefits of the null interpretation, why not candidly adopt it? What is the advantage of adopting the narrow interpretation instead? I see three possibilities:

1. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. In return for this self-constraint, the world cooperates with the U.S. more than it would otherwise—but, correlatively, only a little bit.

2. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. However, the U.S. gains nothing from this self-constraint, or very little, because the rest of the world does not distinguish the null and narrow interpretations—they are equally bad. In this case, the U.S. has erred and should adopt the null interpretation.

3. The world does not care so much about the substance of U.S. actions but it cares deeply about the U.S. lording it over other states, making them feel less than sovereign. Indeed, perhaps many or most foreign governments want the U.S. to exercise no self-constraint. What good does it do them? The narrow interpretation, then, is like diplomatic protocol: substantively empty but nonetheless important as a way of confirming the formal equality of states.

One concrete question that arises from all this is this: Have foreign states retaliated against the United States because it has adopted the narrow rather than the broad position? Would foreign states have retaliated more against the United States if it had adopted the null position? I do not mean “retaliation” literally but as a stand-in for a decline in cooperation of all sorts, including failure to abide by existing international law that benefits the United States.

All Related Posts (on one page) | Some Related Posts:

1. Sincere Appreciations to John Bellinger
2. Bidding John Bellinger Adieu
3. Wrap Up Discussion II...
23. The Meaning of Common Article Three
24. Armed Conflict With Al Qaida: A Reply
25. Armed Conflict With Al Qaeda: A Riposte...
26. Armed Conflict With Al Qaida?
27. The Work of the Office of the Legal Adviser
28. Opinio Juris Welcomes State Department Legal Adviser John Bellinger