(New York) – The United States government should reassess the applicability of the laws of war to its operations against al Qaeda and fully comply with international human rights law, Human Rights Watch said today in a letter this week to Defense Secretary Chuck Hagel.
President Barack Obama, in a speechon counterterrorism at the National Defense University on May 23, 2013, put forward legal and policy rationales for using force in various ways. Yet despite his stated concerns about a “perpetual war,” he never explained why he believed a war paradigm was still applicable in many areas where the US deploys force in its counterterrorism efforts.
“President Obama has disavowed the notion of a ‘global war on terror,’ but US operations against al Qaeda have continued to apply a war model,” said Kenneth Roth, executive director at Human Rights Watch. “As attacks by al Qaeda have dwindled over the years, this model has become even less relevant – and legally questionable.”
For the laws of war to apply to fighting between the United States and al Qaeda or other non-state armed groups, the hostilities must reach the level of an “armed conflict” as defined by international law, Human Rights Watch said. An armed conflict in such situations requires that the hostilities have reached a certain intensity and that the armed groups involved possess some organization. This standard is based on the facts on the ground, not the views of the involved government.
Obama has said that al Qaeda’s strength has seriously diminished since the September 11, 2001 attacks on the United States. In his May speech he said: “The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP [Al Qaeda in the Arabian Peninsula] must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States.”
These developments have meant there may not be protracted fighting at a sufficient intensity to qualify as an armed conflict under international law, Human Rights Watch said. Under such circumstances, US forces in operations against terrorist suspects would instead need to apply rules for law enforcement that conform to international human rights law. These rules do not prohibit the use of lethal force, but limit its use to situations in which the loss of human life is imminent and less-than-lethal means would be insufficient.
“Now that the Obama administration is reassessing its tactics because of al Qaeda’s reduced threat, it should also reconsider what body of law should govern future counterterrorism operations,” Roth said. “For any targeted killings outside of an armed conflict situation, the United States should apply human rights law.”
