By Charles G. Kels*
The body of law governing how the United States wages war is at a crossroads. This code of conduct, forged in combat and honed over centuries, has gone from a treasured lodestar for honorable warriors to a strategic tool for those seeking to either expand or restrict military freedom of action in counterterrorism operations.
The contours of the debate are by now well-delineated: U.S. policymakers formerly insisted that the country was engaged in a “Global War on Terrorism,” and currently insist that it is in “armed conflict with al Qaeda, the Taliban, and associated forces.” Regardless of terminology, the use of armed force was authorized by legislation “without a geographic limitation” and relies upon “the inherent right of national self-defense” as a matter of international law. This state of armed conflict provides the legal armature for the United States to undertake both targeting and detention, in accordance with jus in bello principles, wherever the enemy finds safe haven and its host nation is either “unable or unwilling” to take effective action.
Critics of U.S. policy, from both academia and human rights organizations, contend that America’s capacious view of armed conflict is a cynical attempt to avail itself of the “more permissive” rules for force applicable in wartime. Certain commentators invoke a “legal geography of war,” whereby the relevance of the law of armed conflict (LOAC) is limited to “hot battlefields” and “zones of conflict.” The basis for such critiques is the existence of a threshold for armed conflict demarcating a specialized legal regime. (There is also considerable disagreement over the extent to which human rights laws continue to apply during armed conflict, a topic that will not be addressed here.)
This Article argues that the position of both U.S. policymakers and their critics rests on a conceptual misunderstanding of LOAC and its sacred value to the armed forces. Such attempts to leverage LOAC in the service of a political agenda or particular worldview risk undermining the legitimacy of its rules, thereby compromising the best and only time-tested system of protections available in war. What is needed is a renewed understanding of what LOAC is, and is not, along with a reaffirmation of its primacy as a value system undergirding the lawful conduct of hostilities.
How Did We Get Here?
Historically, nations were loath to officially acknowledge the presence of an armed conflict with non-state actors, for fear of legitimating rebels fomenting violence within their borders. Perhaps the best description of this phenomenon remains historian J.G. Randall’s nearly century-old account of the Lincoln administration’s dilemma over whether to categorize the secession conflict as “a public war or a mere domestic insurrection.” The status of the Confederates in the eyes of the U.S. government—as either belligerents or criminals—ultimately hinged upon the answer to this question.
Unsurprisingly, the Union tried to have it both ways, regarding secession as a nullity and its participants as conspirators subject to domestic law as a matter of principle, while conceding belligerent standing as a matter of necessity. Immunity for warlike acts was extended to Confederate troops out of the imperative to prevent retaliation. Of course, this dual approach of effectively treating the rebels as belligerents, without recognizing their belligerency, proved unwieldy for the administration in terms of its diplomacy with foreign powers and its position in litigation. Yet as Garry Wills takes pains to point out in his Pulitzer Prize-winning book, Lincoln himself never wavered in his conviction that the Confederate army was an “outlaw band” and the United States remained a single entity.
Thus, the U.S. posture after the terrorist attacks of September 11, 2001, broke new ground by unequivocally embracing the terminology and framework of war with respect to non-state actors. Moreover, the non-state actors at issue were not internal dissidents, but transnational terrorists operating from the territory of lawless—or potentially complicit—regimes. This invocation of war was not simply a rhetorical flourish, as the United States made clear that it intended to leverage its entire military and national security apparatus to “disrupt and destroy terrorist organizations of global reach.”
From the perspective of international law, the assertion of an armed conflict begs the question: which type? When the C.I.A. killed explosives expert Haitham al-Yemeni in Pakistan by a drone strike in 2005, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions (the Special Rapporteur) delivered an allegation letter demanding to know, among other things, “what rules of international law” the United States viewed as controlling. In its response, the Bush administration stated that the United States was “in a continuing state of international armed conflict with al Qa(e)da.”
This assertion, however, cannot be correct, since Common Article 2 of the Geneva Conventions applies the provisions governing international armed conflict (IAC) to armed conflicts “between two or more of the High Contracting Parties.” That is—leaving aside the complex and contentious issue of Additional Protocol I’s extension of Common Article 2 coverage to so-called “wars of national liberation”—an IAC requires a state party on both sides of the dispute. This was clearly the case in the United States’ campaigns to defeat and occupy the territory of the de facto governments of Afghanistan and Iraq, but clearly not the case with respect to the fight against al Qaeda in general.
Thus, by process of elimination, we arrived at the doorstep of non-international armed conflicts (NIACs). This is hazier and newer terrain for the aforementioned reason that sovereign states have traditionally resisted the reach of international law into their domestic matters. Indeed, a NIAC is defined by Common Article 3 of the Geneva Conventions solely in the negative, as an “armed conflict not of an international character.” Even Jean Pictet conceded that the Conventions’ negotiators “deliberately refrained from defining the non-international armed conflicts which were the subject of Article 3 . . . .”
The problem we are left with is that the NIAC model is ill-suited to accommodate the struggle against a transnational terrorist network, because it was never meant for such things. The “mini-Convention” of Common Article 3 was intended to rein in the worst excesses of civil wars, and there is a degree to which the whole concept of a global NIAC is oxymoronic on its face. “Non-international,” in this view, is synonymous with (or at least inclusive of) “internal.”
Nonetheless, the Supreme Court’s Hamdan decision in 2006 was widely interpreted—some say erroneously—as deeming the conflict with al Qaeda a NIAC. The Obama administration doubled down on this formulation, asserting in its motion to dismiss the suit brought by the father of Anwar al-Aulaqi that the Court had “recognized” a NIAC between the United States and al Qaeda in Hamdan, and then applying that designation to the conflict. In a recent speech at Oxford University, the Pentagon general counsel explicitly cited Hamdan for the proposition that the United States is in a NIAC with al Qaeda.
What is War (i.e., What is Armed Conflict)?
Determining the existence of an IAC is relatively straightforward. Pictet’s Commentary on Common Article 2 notes that the term “armed conflict” was deliberately substituted for “war” so as to head off arguments by states that their hostile acts did not amount to making war. Rather, “any difference arising between two states and leading to the intervention of armed forces” constitutes armed conflict, regardless of “how long the conflict lasts, or how much slaughter takes place.” The decision to divorce the application of the 1949 Conventions from the pronouncements of states was prompted by past experience. In 1937, imperial Japan eschewed a declaration of war and classified its invasion of China as an “incident” (and Chinese soldiers as “bandits”) precisely in order to deny the relevance of international legal constraints. A Japanese Army directive explicitly repudiated the Hague regulations on land warfare and mandated discontinuation of the term “prisoner of war” to categorize captured Chinese troops.
Some scholars nonetheless assert that even violence “between sovereign states” must rise to a certain level before crossing the threshold into armed conflict. The purpose of drawing this distinction is presumably to prevent states from claiming belligerent privileges in mere “‘incidents’, ‘border clashes’ or ‘skirmishes’.” However, this position runs counter to that of the Red Cross (ICRC), which maintains that IACs “exist whenever there is resort to armed force between two or more states.” It is generally accepted that “the level of intensity required for a conflict to be subject to the law of international armed conflict is very low.” Hence, most experts appear comfortable with the notion that virtually “any fighting between armed forces of states is automatically covered” by the Geneva Conventions.
The tests for a NIAC, however, “are not as categorical.” Pictet provided some “convenient criteria,” while noting they were “in no way obligatory.” It bears reemphasizing that the concern among the drafters of the Geneva Conventions was not that states would invoke the existence of a NIAC where there was none, but rather that that “any form of anarchy, rebellion, or even plain banditry” would provide a basis for the intrusion of international norms into sovereign affairs, thereby undermining state support for the Conventions.
As such, the attempt several decades later in Additional Protocol II (AP II) to elaborate upon Common Article 3 made sure to provide a stringent threshold for application. The Protocol pertains only to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Moreover, it does not apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”
On its face, AP II does not define NIACs. Rather, it delineates that subset of NIACs to which AP II applies. Indeed, the scope of AP II aims to “develop and supplement” Common Article 3, but does not modify “its existing conditions of application.” However, to the extent that many provisions of AP II are widely regarded as encapsulating the customary international law on NIACs more generally, that instrument’s criteria for application—in terms of the violence reaching “a certain threshold of confrontation,” but leaving aside AP II’s additional requirement of territorial control—have increasingly been proffered as approximating the baseline elements for identifying this type of armed conflict.
This perspective is buttressed by the work of the International Criminal Tribunal for the former Yugoslavia (ICTY), particularly in its influential 1995 Tadić decision. The appeals chamber in Tadić, resolving a jurisdictional challenge, found that an armed conflict exists where there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” Two years later, the ICTY trial chamber applied and refined that test, hinging the existence of armed conflict on two elements: “the intensity of the conflict and the organization of the parties to the conflict.” The Rome Statute of the International Criminal Court then essentially codified the ICTY’s formulation, referring to “protracted armed conflict between governmental authorities and organized armed groups or between such groups.”
Thus was born the current consensus among legal scholars and the ICRC that a NIAC requires a minimum level of both intensity of fighting and organization of the parties involved. As the Venice Commission of the Council of Europe opined, in response to the perceived U.S. overreach in the “war on terror,” the concept of armed conflict categorically excludes “violent acts which terrorist networks perpetrate in different places around the globe and the ensuing counter-terrorism measures, even if they are occasionally undertaken by military units.” Similarly, the Special Rapporteur has observed that the “loosely linked” network of al Qaeda and its affiliates lacks the degree of cohesion and ability to sustain protracted operations that characterize a ‘party’ to an armed conflict.
Both U.S. officials and their detractors agree that the status of the armed conflict is significant because it determines the applicable legal regime. The Obama administration asserts its compliance “with all applicable law, including the laws of war.” It notes, quite rightly, that attacking “specific senior operational leaders” (i.e., targeted killing) can be perfectly legal under LOAC; indeed, untargeted killing, in the sense of indiscriminate violence, is precisely what LOAC forbids. Critics of U.S. counterterrorism practices contend, with equal certainty, that targeted killings “violate the right to life” wherever armed conflict does not exist. Moreover, the Special Rapporteur asserts that under human rights law (HRL), “an intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation.”
The current impasse reflects the difference in perspective between LOAC and HRL. Taking for granted a backdrop of institutionalized killing, LOAC focuses pragmatically on “alleviating as much as possible the calamities of war.” Belligerents are subject to lethal attack at any time and place, and even the death of innocents (i.e., collateral damage) is permissible so long as proper precautions are taken and the anticipated toll is not “excessive” in relation to the military advantage sought.
On the other hand, HRL operates as the international law of peace, undergirding domestic law with protections for the individual. Pursuant to the law enforcement paradigm, the use of lethal force against an offender is not the first, but the last resort, to be exercised only “when strictly unavoidable in order to protect life.” The distinction between LOAC and HRL has been aptly summarized as “the difference between ‘kill or capture’ and ‘capture or kill.’” While there are limited circumstances in which law enforcement officers enjoy greater freedom of action than soldiers—e.g., in the use of riot control agents to quell domestic disturbances, which is prohibited as a method of warfare—military force is generally understood to permit more liberal use of firepower.
The upshot of all this is that when assessing the legality of U.S. counterterrorism policy—particularly with respect to targeting, but to detention as well—well-meaning and learned people are applying different rubrics and thus “talking past each other altogether.” If the ability to kill without warning and detain without trial rests on the primacy of LOAC, which in turn rests on the presence of armed conflict, then the basis for common dialogue breaks down early in the debate.
Human rights advocates insist that war “takes two to tango,” such that reliance upon its norms requires the presence of clearly definable, robust parties engaged in intense hostilities. They worry that the “over-application” of LOAC is an invitation to “war-creep,” whereby “the more relaxed rules of targeting” available in armed conflict will supplant “the more stringent ‘imminence’ standard” of law enforcement. Indeed, a world in which the rules for everyday life were provided by LOAC would be neither pleasant nor safe to live in; it would be a warzone. U.S. assurances that it does not intend to apply LOAC “everywhere in the world,” but only in places where governments are “unable or unwilling” to counter the terrorist threat themselves, are of little comfort to the international community.
At the same time, requiring the United States to apply an arrest-first, shoot-last approach to hunting terrorists in remote regions would neutralize its technological edge and blunt its ability to practice highly precise drone warfare. A sniper who is told he can only fire his rifle as a last resort could be forgiven for retorting, “What you’re really saying is I can’t use force at all.” The strictures of LOAC do “not require a ‘fair fight,’” only that combatants “fight fairly.” Understandably, the United States is determined not to “deprive ourselves of any tool in our fight against al Qaeda,” which includes the ability to pick apart enemy operatives at long range. Soldiers’ lives matter too. Although they go in harm’s way, their safety cannot be risked gratuitously when the target is already in their crosshairs.
Furthermore, given that effective law enforcement requires control on the ground—and that capturing al Qaeda operatives in fortified locations could very well involve fighting our way in and out of contested areas—there is a real argument to be made that targeted killing saves lives on all sides. This is presumably what President Obama meant when he said of al Qaeda in Pakistan, “For us to be able to get them in another way would involve probably a lot more intrusive military actions than the one we’re already engaging in.”
Far from fading away, this fundamental legal dispute between the U.S. and the human rights community is likely to ratchet up as we withdraw from Afghanistan and al Qaeda becomes further decentralized. The “facade” of a hot battlefield with a recognizable enemy will become harder to sustain as a legal basis for counterterrorism operations, even as those operations continue unabated or even expand. As such, some enterprising thinkers have sought new paradigms to break through the morass.
One such suggestion is “naked” self-defense, the idea that the resort to self-defense under Article 51 of the U.N. Charter can sometimes comprise its own regime governing the use of force. This theory purports to take support from State Department legal adviser Harold Koh’s remark that states may be “engaged in an armed conflict or in legitimate self-defense,” as if the latter represents a stand-alone category of conflict. It postulates that the exercise of self-defense is not “necessarily undertaken through” either LOAC or HRL, but is regulated instead by the jus ad bellum principles of necessity and proportionality. This, however, is the very problem with “naked” self-defense as a viable theory. It mixes ad bellum and in bello concepts in direct contravention of the foundational principle of LOAC; namely, that the “justice” of one’s cause has no bearing on the rules for conduct in hostilities. This “posture of startling moral modesty” lies at the heart of LOAC as a coherent legal regime, enabling the extension of belligerent immunity to all parties who are authorized to fight, irrespective of whether they are considered subjugators or liberators.
Another suggestion is the creation of a new category of “transnational armed conflicts,” alongside IACs and NIACs, to account for the reality of global terrorist networks. The underlying objective of this novel categorization is not to require a new set of rules applicable to such conflicts, but rather to trigger LOAC across the board in “extraterritorial armed conflicts between states and non-state belligerents” that do not clearly exhibit the Tadić indicators. This idea would undoubtedly do much to solve the ‘square peg in a round hole’ problem of contorting NIACs beyond recognition. In so doing, it could theoretically provide a basis for the application of LOAC in situations that are ill-suited to pure law enforcement, but difficult to categorize as an armed conflict under current nomenclature. For the time being, however, it is not a recognized category under international law.
Thus, we find ourselves in the current predicament, with the “pro-LOAC” and “pro-HRL” forces locked in a counterproductive and seemingly irreconcilable contest for ideological supremacy, attempting to carve out maximal space for their preferred legal paradigm. As international law experts argue among themselves about the existence of a NIAC and the application of LOAC, what has been lost in the shuffle is the real meaning of jus in bello principles to those who live by them.
Whereas policymakers and theorists view LOAC as a gateway to mete out violence “that would be utterly unthinkable in peacetime,” the military teaches and internalizes it as a code of honor in combat. In this sense, all the discussion of applicable “regimes” and “paradigms” reveals a larger misconception: LOAC does not enable hostilities, but acts as the prism through which they are lawfully conducted. The laws of war provide “rules of conduct by warriors for warriors,” informing a moral code that enables warfighters to differentiate “legal acts of killing and destruction from criminal acts of killing and destruction.” To the extent that politicians and their critics treat LOAC as something malleable that can be used to either expand or restrict the scale of counterterrorism operations, they undermine a system that—until the relatively recent advent of HRL—embodied the epitome of protection for civilians and restriction of bloodletting under international law.
The armed forces value “clear, bright line rules” precisely because the business they are engaged in is so fraught with moral and physical peril. This is why judge advocates (JAGs) subscribe to a mentality of staying well within legal bounds and not even getting close to the proverbial line, as was reflected in the fierce detention debates with their civilian counterparts during the Bush administration. The military paradigm is an eighteen year-old private far from home and under unthinkable pressure, not a seasoned interrogator who can take liberties with the rules and still know where to stop.
The Department of Defense (DOD) states clearly and unequivocally that it complies with LOAC in all “military operations,” regardless of classification. This was never intended to lower the standards of conduct for DOD personnel, but rather to moor U.S. policy to time-tested law and provide a baseline upon which the rules of engagement can be built and further refined. Indeed, the DOD used to employ a term, since discontinued, that captures the essence of the ongoing conundrum: “military operations other than war” (MOOTW). While there was a definite recognition that MOOTWs oftentimes did not rise to the level of armed conflict, the DOD nonetheless made a policy determination to comply with LOAC universally. Given the sensitive political nature of many MOOTWs, especially those conducted with international partners, the rules of engagement could be considerably more restrictive. But that was a function of strategy, not legal obligation.
Of course, there is no doubt that LOAC is an “exceptional” body of law meant to govern a specific activity—the conduct of hostilities—as opposed to the “law of ordinary life.” But the strategic standoff between the “pro-LOAC” and “pro-HRL” forces over the freedom of action available in counterterrorism operations is fundamentally at odds with the more holistic view of LOAC adopted by the armed forces. Soldiers, including the uniformed lawyers who advise them, are less concerned with “thresholds” for application and which specific treaty provisions apply in different scenarios, than with a set of guiding principles (necessity, distinction, proportionality) that differentiate righteous warriors from common killers. That is, the U.S. armed forces subscribe to the conviction that a military properly “trained to comply with the law of war will do so, however a particular operation may be characterized.”
This, I believe, is why the tenuous alignment between JAGs and human rights lawyers is now beginning to fray. Both made common cause in their objections to the Bush administration’s detention policies. For JAGs, though, the problem was not that the administration invoked LOAC, but that it did so selectively, in order to strengthen its hand without acknowledging the corresponding obligations. This is what Hamdan stands for: not necessarily that the fight against al Qaeda is a NIAC, but that with belligerent rights come belligerent responsibilities. The human rights community, as it turns out, was not primarily concerned with the perceived violations of LOAC, but with the application of LOAC altogether.
The real nub of the current critique of U.S. policy, therefore, is that the Bush administration’s war on terror and the Obama administration’s war on al Qaeda and affiliates constitute a distinction without a difference. The latter may be less rhetorically inflammatory, but it is equally amorphous in application, enabling the United States to pursue non-state actors under an armed conflict paradigm. This criticism may have merit, but it is really about the use of force altogether, not the parameters that define how force is applied. It is, in other words, an ad bellum argument cloaked in the language of in bello.
LOAC is apolitical. Adherence to it does not legitimize an unlawful resort to force, just as its violation—unless systematic—does not automatically render one’s cause unjust. The answer for those who object to U.S. targeted killing and indefinite detention is not to apply a peace paradigm that would invalidate LOAC and undercut the belligerent immunity of soldiers, but to direct their arguments to the political leadership regarding the decision to use force in the first place. Attacking LOAC for its perceived leniency and demanding the “pristine purity” of HRL in military operations is actually quite dangerous and counterproductive from a humanitarian perspective, because there remains the distinct possibility that the alternative to LOAC is not HRL but “lawlessness.” While there are certainly examples of armies that have acquitted themselves quite well in law enforcement roles—and while most nations do not subscribe to the strict U.S. delineation between military and police forces—the vast bulk of history indicates that in the context of armed hostilities, LOAC is by far the best case scenario, not the worst.
Transnational terrorist networks pose unique security problems, among them the need to apply preexisting legal rubrics to an enemy who is dedicated to undermining and abusing them. Vital to meeting this challenge—of “building a durable framework for the struggle against al Qaeda that [draws] upon our deeply held values and traditions”—is to refrain from treating the deeply-ingrained tenets of honorable warfare as a mere mechanism for projecting force. The laws of war are much more than “lawyerly license” to kill and detain, subject to varying levels of application depending upon political outlook. They remain a bulwark against indiscriminate carnage, steeped in history and tried in battle.
*Charles G. Kels is an attorney for the Department of Homeland Security and a major in the Air Force Reserve. Opinions expressed in this Article are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force, or Defense.
Photo courtesy of Judge Advocate General’s Legal Center and School.