I’ve been thinking about the US justification for being able to targeted terrorists who threaten US citizens across the globe, and while I agree that States should be able to protect their citizens from terrorists, I’m not sure the ‘Transnational Non-International Armed Conflict’ (TNIAC) argument is water-tight.
Firstly, I should explain what I mean, ‘global’ and ‘non-international’ making it sound rather paradoxical. There are two types of armed conflict, as are well described in International Criminal Tribunal for the former Yugolsavia case, The Prosecutor v. Dusko Tadic, (Interlocutory Appeal) (para 70):
‘An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups [IHL] applies for the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or… a peaceful settlement is achieved.’
This shows both types of armed conflict, as defined by law: ‘International’, meaning between two States fighting with their national armies, and ‘Non-International’, meaning between either a State and Organised Armed Groups, or between Organised Armed Groups. Non-International covers insurgencies, insurrections, and civil wars to rise to a level of protracted armed violence, essentially that which is beyond police control.
So, this means that any conflict the US is in with Al-Qaeda and Associated Forces would be a Non-International Armed Conflict (NIAC) as it is between a State and an Organised Armed Group. Currently, the associated forces as stated by CIA General Counsel, Stephen W. Preston are:
al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qa’ida in Somalia and Libya… the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria. We have also resumed such operations against the group we fought in Iraq when it was known as al-Qa’ida in Iraq, which is now known as ISIL.
The targeting of all these groups is done by the US under the authorisation of the 2001 Authorisation of Military Force (AUMF), this is essentially a declaration of war against the perpetrators of 9/11. It states in s.2(a):
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This means that all of the above groups must be sufficiently linked to 9/11 to be targetable under the AUMF. Apart from al-Qa’ida and the Taliban, none of them existed before 9/11, nor are they all located in Afghanistan, where al Qa’ida was given safe haven and supported in its plotting of 9/11. So how could they be targetable under the AUMF?
The US contends that it is in a NIAC with al-Qa’ida, and because al-Qa’ida is transnational, so should the NIAC. If al-Qa’ida can operate between borders, the the US sees itself as having the ability to continue its NIAC with al-Qa’ida even when it is operating in different countries.
The US is of the opinion that all of the Associated Forces spring from al-Qa’ida, and are therefore targetable as if they were al-Qa’ida. But, what is a sufficient link? Is inspiration and influence enough, or financing and facilitating, or must there be command and control?
Here, there are differing opinions, I’ll present a couple in this blog. The first, is given by Gregory McNeal in ‘Targeted Killing and Accountability‘ who states that in order to target an al-Qa’ida affiliate, any strikes at members of that affiliate must also cause harm to core al-Qa-ida. His case study is Anwar Al-Awlaki, a Yemeni-American and senior member of Al-Qa’ida in the Arabian Peninsula (AQAP). Reportedly his death was so damaging to AQAP that it had a knock-on effect damaging al-Qa’ida itself, and AQAP could therefore be said to be sufficiently tied to al-Qa’ida to render it targetable as if it were al-Qa’ida. McNeal does not discuss how the US would target Associated Forces, only that the US sees itself in a transnational NIAC with terrorists.
However, when I was at the ‘Drones and International Law‘ event at the British Institute of International and Comparative Law, Professor Dapo Akande stated that the connection between groups would have to be a shared link of command and control. If there was such a link, groups spread globally could be targeted as if they were the same group, as there is nothing conceptually distinct between being in a NIAC with terrorist group X in State A, and targeting a terrorist camp just over the border where group X are hiding in State B, and targeting group X much further away, and over more borders. The distance and number of borders are superficial in relation to whether there is a legitimate NIAC going on between a State and an Organised Armed Group.
Although, for the NIAC to be legitimate, there must be a sufficient level of violence. Terrorist acts, whilst horrific are not on the State Vs. State level of violence that International Law on Use of Force was intended for, and so low-level terrorist violence may not be sufficient, unless it is aggregated across the terrorist organisation in different countries. It is this aggregation that can lead to a legitimate claim to be acting in Self-Defence by the Victim State, and a legitimate NIAC, leading to a legitimate TNIAC.
It is important to note that the TNIAC (or Global-NIAC) concept is not fully accepted, not is the literature fully agreed upon the factors that make up this concept. For me, I’m not sure if either of these opinions could really operate in the real-world. Reportedly, the recent ISIS attacks in Paris and Belgium were carried out by individual cells financed by ISIS with €50,000, but neither commanded or controlled by them. The cells functioned independently. If cells like this operate transnationally, where there is financing, facilitating, training, and influence, but no command and control link, and therefore damage to the cell would not damage the core organisation, there would need to be a re-think of how to legitimately use force against such terrorist groups.
Until next time!