IV. The Answer
The phrase “war on terror” is a rhetorical device having no legal significance. There is no more logic to automatic application of the laws of armed conflict (and the privileges it bestows upon belligerents) to the “war on terror” than there is to a “war on drugs,” a “war on poverty,” or a “war on cancer.” “Terror” or “terrorism” cannot be a party to an armed conflict. This is why despite a publicized “'war' on drugs” the law provides for suspected drug dealers to be arrested and put on trial, rather than summarily executed or detained without charge.
Blanket criticism of the law of armed conflict for its failure to cover all terrorism is akin to assailing the specialized law of corporations for its failure to address all business disputes. Furthermore, it is a stretch to suggest that recognition of America's right to defend itself against the perpetrators of the September 11 attacks amounts to acceptance of a “war paradigm” for everyone and everything considered “terrorist.” Simply put, suspected terrorists captured in connection with that which is truly armed conflict may certainly be detained under IHL, and are therefore entitled to the rights that IHL provides such detainees. Terrorist suspects detained beyond the bounds or armed conflict are covered by other applicable laws, such as domestic and international criminal and human rights laws.
Though U.S. officials and other analysts have asserted that the so-called “Global War on Terror” (GWOT) is an international armed conflict, in many cases the GWOT does not measure up to criteria which determine when armed conflict exists: it is not a conflict between states, the territorial boundaries of the conflict are undefined; the beginnings are amorphous and the end indefinable; and, most importantly, the non-state parties are unspecified and unidentifiable entities that are not entitled to belligerent status. Indeed, war does not exist merely by virtue of being declared. It exists, and the laws of war apply, when facts on the ground establish the existence of armed conflict, regardless of any declaration or lack thereof.1
The U.S. and allied military interventions in Afghanistan and Iraq are, for example, wars to which the international law of international armed conflict applies. And the conflicts in Colombia, Congo, and Sri Lanka are, or were, wars to which the international law of non-international armed conflict applies. While these true armed conflicts and the so-called GWOT may or may not overlap, the law of armed conflict can only be applied to that which is truly armed conflict. That which is not remains governed by domestic and international criminal and human rights laws.
There is a good reason for this division of legal labor: the law of armed conflict affords rights and imposes responsibilities on warring parties that are legally exceptional. It is therefore essential that the criteria for determining the existence of armed conflict be accurately and rigorously applied. An examination of those criteria insofar as the GWOT is concerned, and from the standpoint of a non-international armed conflict, which takes account of non-state armed groups operating against a state, will demonstrate just how much of it actually falls outside of the boundaries of recognized armed conflict, notwithstanding claims by the U.S. to enjoy belligerent privileges afforded by IHL.
1. Identification of parties
The essential humanitarian function of IHL is carried out through the parties to the conflict. They have rights and responsibilities. There can be no IHL conflict without identifiable parties.
“Terror” or “terrorism” cannot be a party to the conflict. As a result, a war on terror cannot be an IHL event. It has been suggested that wars against proper nouns (e.g., Germany and Japan) have advantages over those against common nouns (e.g., crime, poverty, terrorism), since proper nouns can surrender and promise not to do it again. IHL is not concerned with the entitlement to engage in hostilities or the promise not to do so again (the “jus ad bellum”). Rather, it concerns the conduct of hostilities and the treatment of persons in the power of the enemy (the “jus in bello”). But there is still a strong connection to IHL in this observation. There can be no assessment of rights and responsibilities under IHL in a war without identifiable parties. The concept of a “party” suggests a minimum level of organization required to enable the entity to carry out the obligations of law.1
A terrorist group can conceivably be a party to an armed conflict and a subject of IHL, but the lack of commonly accepted definitions is a hurdle. What exactly is terrorism? What is a terrorist act? Does terrorism include state actors? How is terrorism distinguished from mere criminality? How has the international community's reaction to terrorism differed from its treatment of mere criminality; from its traditional treatment of international and non-international armed conflict?
There are numerous conventions and other authorities that treat these questions, but none, as of yet, provides a comprehensive definition of “terrorism” or “terrorist acts.”2 Negotiations on a Comprehensive Convention on International Terrorism1 are proceeding, but with considerable difficulty, in no small part due to an inability to reach agreement on the definition of terrorism. Terrorism is not a legal notion.2 This very fact indicates the difficulty, if not impossibility, of determining how terrorism and responses to it may be identified historically or defined within a legal regime. For example, when the United States in 1998 was still engaged in the negotiations to establish a permanent International Criminal Court in Rome, it took a position against inclusion of terrorism in the court's statute on the grounds that a definition was not achievable. Without international consensus on these questions, how can one determine, for purposes of assigning legal consequences, who are the parties to the GWOT and which branch, if either, of IHL should apply?3
We are all now familiar with the refrain that one man's terrorist is another man's freedom fighter. The need for criteria to distinguish terrorists from freedom fighters is more than academic. It may be critical to the determination of whether IHL can apply, and if so, whether it is the rules of international armed conflict or those of non-international armed conflict that will govern. The reason is simply that hostilities directed against a government and undertaken by a belligerent group seeking self-determination may qualify as an international armed conflict under Additional Protocol (AP) I to the GCs, while the same conduct of a group with different aims will not.4
This does not, of course, mean that IHL cannot apply to the conduct of persons responsible for the September 11 attacks.5 On the other hand, the attacks do not, per force, amount to armed conflict which would trigger the application of IHL. In addition to other criteria mentioned below, the non-state participants must qualify as belligerents or insurgents – a status of doubtful applicability to a group not associated with any specific territory.1 One commentator has suggested that armed attacks by al-Qaeda, which is neither a state, nation, belligerent, nor insurgent group (as those terms are understood in international law), can trigger a right of selective and proportionate self-defense under the UN Charter against those directly involved in such armed attacks. However, neither these attacks nor the use of military force by a state against such attackers can create a state of war under international law.2 Another commentator has asked: “Should the events of September 11 be considered an 'act of war'? It depends on whether a government was involved.”3
2. Identification of territory
The rules applicable to non-international armed conflict – historically thought of as involving rebels within a state against the state or against other rebels – are found in Common Article 3 (CA 3) to the GCs and in AP II to the GCs; the scope of application of these rules is also found in CA 3 and in Article 1 of AP II.
While CA 3 does not require territorial control by the non-state party in the case of a non-international armed conflict, the conflict must still occur “in the territory” of a High Contracting Party to the GCs. Some analysts construe this requirement to mean that the conflict must be limited to the territory of a signatory to the GCs, a so-called High Contracting Party.1For this element alone, terrorist attacks on civilian targets in Ne
w York may suffice, but retaliation against alleged terrorists in Yemen, for example (i.e., the targeted killing in November 2002 by a CIA-launched, unmanned drone missile), may not.2 This is not because Yemen is not a party to the GCs. It is. Rather, it is because CA 3 is of questionable application to an isolated, targeted killing of persons outside of U.S. territory.
3. Relationship of events to an identified conflict
The strike in Yemen on November 4, 2002, highlights another element. “Acts of war” is an understandable, perhaps inevitable, description of the September 11 attacks. However, this rhetorical reaction does not answer the question of whether or not those attacks and the response to them are part of an armed conflict, i.e., that they have a sufficient nexus to an armed conflict. For example, there should be no doubt that the military confrontation in Afghanistan following the September 11 attacks was (and perhaps remains) an armed conflict. And a case can be made that the September 11 attacks are a part thereof. But it does not necessarily follow that the targeted killing of terrorist suspects by U.S. authorities in Yemen a year after the September 11 attacks falls within that conflict and, therefore, is an event to which IHL applies.
4. Identification of beginning and end of armed conflict
According to the jurisprudence of the International Criminal Tribunals for the former Yugoslavia3 and Rwanda,4 as well as under the definitions of the permanent International Criminal Court,5 hostile acts must be “protracted” in order for the situation to qualify as an “armed conflict.” In fact, the Yugoslavia Tribunal has specifically stated that the reason for this requirement is to exclude the application of IHL to acts of terrorism.1 On the other hand, the Inter-American Commission on Human Rights says that intense violence of brief duration will suffice.2 Likewise, it remains to be seen whether the mere gravity of damage resulting from the September 11 attacks will, in retrospect, become a “decisive point of reference for the shift from the mechanisms of criminal justice to the instruments of the use of force.”3
Whether or not the conflict needs be protracted, and whether or not intensity can take the place of duration, the beginning and end must be identifiable to know when IHL is triggered, and when it ceases to apply.
V. GWOT Cannot Be Across-the-Board “Armed Conflict”
The most important and most commonly forgotten element is that application of CA 3, like all other aspects of IHL, depends on the existence of a particular quality of hostilities that amount to armed conflict. And yet, nowhere in the GCs or APs is the term “armed conflict” defined. Where the question arises – “Is there a state of international armed conflict (i.e., between or among states)?” – the analysis is relatively easy. The answer is “yes” whenever there is “[a]ny difference arising between two States and leading to the intervention of armed forces.”4
The determination of non-international armed conflict, however, is more complex. One can start with the disqualifying criteria of AP II, Article 1.2 (internal disturbances and tensions such as riots, etc.),5 but they are hardly precise. One can proceed to the inclusive criteria of the ICRC Commentary, but there is no consensus on their legal authority. The ICRC Commentary also appears to presume that the non-state party to the conflict is acting within a determinate territory in revolt against, and attempting to displace, its own government. Must military means be used? Can the line between military and non-military means be neatly drawn? This potential criterion is related to the question of intensity, which has been suggested as an alternative to the requirement that the conflict be “protracted.” Traditionally, acts of international terrorism were not viewed as crossing the threshold of intensity required to trigger application of the laws of armed conflict.1 Some authority to the contrary is suggested by historical precedents involving the use of military force against extraterritorial non-state actors as indicative of “war.” But these examples still fail to make the case that use of such force necessarily triggers the law of armed conflict.2
VI. Having Their Cake and Eating It Too
The GCs stipulate that if you are detained by an enemy state at war with your state, then you will fall into one of two categories: POW or civilian internee.3 Pursuant to the belief that detainees in the “war on terror” should not be entitled to any legal protections that the law of armed conflict might provide them, a new, third status – one that essentially places detainees outside the framework of IHL – has been proposed. The designation of such persons as “enemy combatants” is used to displace both POW and civilian-internee status. At the same time, individual protections under criminal and human rights law are denied on the basis that those laws do not apply in armed conflict.4 Thus, detainees are rendered into the infamous “legal black hole.”
It is, of course, absolutely correct that persons who are not members of armed forces or assimilated militias, and whose hostile acts violate the most fundamental principle of IHL – namely, that civilians may not be attacked – are not entitled to be designated POWs, a status reserved for lawful combatants.1 In that event, they default into the legal status of persons covered by the Fourth Geneva Convention.2 As such, and unlike lawful combatants, they can be prosecuted for the mere fact of having taken part in hostilities.3 Like lawful combatants, they can also be prosecuted for war crimes, such as the targeting of civilians.4
But the U.S. administration claims the privileges conferred by invoking IHL, while refusing to accept its commensurate burdens. Most exemplary in this regard are instances of targeting carried out by the U.S. military or paramilitary forces, and the status of detainees in U.S. military custody.
Targeting beyond the bounds of armed conflict
Since an international armed conflict under IHL must be between two or more states, the better terminology for those aspects of the so-called GWOT that do amount to armed conflict and that cross state boundaries, but that do not implicate two or more governments as parties to the conflict, would be “transnational” or “interstate.”5 The decision of the United States to refer to the GWOT as an international armed conflict is neither insignificant nor innocent. The U.S. view, if accepted as a statement of law, would serve as a global waiver of domestic and international criminal and human rights laws that regulate, if not prohibit, killing. Turning the whole world into a rhetorical battlefield cannot legally justify, though it may in practice set the stage for, a claimed license to kill people or detain them without recourse to judicial review anytime, anywhere. This is a privilege that, in reality, exists under limited conditions and may only be exercised by lawful combatants and parties to armed conflict.
In war, soldiers may be targeted whenever doing so creates a military advantage – in other words, almost always. Civilians, on the other hand, may not be targeted unless they are taking an active part in hostilities.1Since terrorists are likely to be civilians, they can benefit from the fact that it is unlawful to target them whenever they are not actively engaged in hostile behavior. The attack by a missile reportedly launched from a CIA-operated drone on an SUV containing al-Qaeda suspects in Yemen highlighted the debate on this point. It was argued that the civilian legal framework of arrest, criminal charges, and trials is simply “impractical” in dealing with terrorist groups of global organization and reach.2
But where does that argument lead? It leads to O'Hare International Airport in Chicago, where U.S. citizen Jose Padilla was arrested and ultimately designated an enemy combatant, now having been held essentially incommunicado, in indefinite detention without trial or even without charge, for three years in a military brig.3 And it leads not only to such detentions, but also to the potential for targeted killings, either in the deserts of Yemen or the streets of Chicago. When asked whether, consistent with the laws of war, terrorist suspects could be targeted, the U.S. Department of Defense deputy general counsel for international affairs, Charles Allen, said they could.4 This is true with two critical caveats: one, only if it is truly in the context of armed conflict, and two, only if the suspects are actively engaged in hostilities
. I understand that this second caveat frustratingly permits terrorists to play a kind of “peek-a-boo” game with the authorities, but I also believe that limiting the circumstances in which targeted killing is lawful, even in war, is a valid tradeoff when the alternative is a permanent, global free-fire zone against an amorphous enemy.
The targeted killing of suspected terrorists in Yemen is a case in point. The killings are of dubious legality under IHL for several reasons. First, unless the event is part of an armed conflict, IHL does not apply, and its provisions recognizing a privilege to target may not be invoked. The event must then be analyzed under other applicable legal regimes.1 Second, even if IHL applies, the legality of the attack is questionable because the targets were not directly participating in hostilities at the time they were killed,2and because the attackers' right to engage in combat is doubtful.3
Extra-judicial detention in a legal “black hole”
The GCs are constructed so as to provide for no gaps in its coverage of enemy soldiers and civilians. The notion that someone who fails to qualify for POW status is therefore beyond the coverage of the GCs is incorrect. An enemy national is either a POW covered by the Third Geneva Convention, or a civilian covered by the Fourth.4
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