The Hon. Chuck Hagel
Secretary of Defense
US Department of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
Dear Secretary Hagel,
We are writing with regard to the applicability of the laws of war to US operations against al Qaeda and so-called associated groups.
Since taking office, President Barack Obama has disavowed the notion of a “global war on terror,” perhaps out of recognition that an armed conflict paradigm did not accurately reflect each and every situation where the United States encountered al Qaeda or other militant groups. As operations by these groups have dwindled over the years, this paradigm has become even less relevant, to the point where its legal applicability needs to be called into question.
Recognizing the need to move away from a war paradigm, President Obama in his speech on US counterterrorism policy at the National Defense University on May 23, 2013, warned that “a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter [the United States] in troubling ways.” He explained that the United States “must define the nature and scope of this struggle, or else it will define us. We have to be mindful of James Madison’s warning that ‘No nation could preserve its freedom in the midst of continual warfare.’”
The president 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 is using force in its counterterrorism efforts.
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 that term is defined under international law. Since World War II, armed conflicts between a state and an armed group (or between two armed groups) — so-called non-international armed conflicts — have largely been defined in the negative. The 1952 Commentary of the International Committee of the Red Cross (ICRC) on Common Article 3 of the Geneva Conventions of 1949 “distinguish[es] a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection.” The Second Protocol Additional of 1977 to the Geneva Conventions (Protocol II) notes that armed conflicts do not include “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”
In 1995, the International Criminal Tribunal for the former Yugoslavia (ICTY) offered a clearer definition of non-international armed conflict. The Appeals Chamber in the Tadic case stated that “an armed conflict exists whenever there is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” When the Tadic Trial Chamber applied the definition to the facts of the case, it stated it was “focus[ing] on two aspects of a conflict: the intensity of the conflict and the organization of the parties.”
The criterion of protracted armed violence was interpreted in the ICTY’s Haradinaj judgment as “referring more to the intensity of the armed violence than to its duration.” Non-essential indicative factors include the “number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones.”
The Tadic standard has since been adopted by international and hybrid courts such as the Special Court for Sierra Leone and the International Criminal Court, as well as by various international commissions, UN mechanisms, and military field manuals, such as that of the United Kingdom.
The ICRC has articulated this definition of non-international armed conflict:
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.
Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.
Application of this standard is an objective or functional determination, not a subjective or formal one. That means it is based on the facts on the ground, not declarations of war or a government’s recognition of belligerency.
President Obama made the case in his speech that al Qaeda’s strength has been seriously degraded since 9/11. 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.” Previously the president has said that “al Qaeda has been decimated.” An armed conflict continues against al Qaeda forces that may be fighting alongside the Taliban in Afghanistan, but as the US drawdown proceeds until the end of 2014, the situation’s status should be monitored.
Given these developments, it is not evident to what extent there is now “protracted armed violence” with al Qaeda at a sufficient level of intensity to qualify as armed conflict. Attacks by al Qaeda have become periodic and small-scale. As President Obama noted, “There have been no large-scale attacks on the United States, and our homeland is more secure.” While the deployment of military forces by a state against a non-state armed group is a factor in determining whether an armed conflict exists, the genuine need to use that level of force is crucial; otherwise a state could turn any criminal activity into a “war” — indeed, any criminal into a military target — simply by responding with high levels of force.
In the absence of an armed conflict between the United States and al Qaeda and associated forces, the laws of war (the lex specialis, or specific law) would not apply to ongoing hostilities. Instead, consistent with the rulings of the International Court of Justice in its Nuclear Weapons (1999) and Wall (2004) Advisory Opinions and the conclusions of the United Nations Human Rights Committee, international human rights law (the lex generalis, or general law) would be applicable in these situations.
Under such circumstances, US forces in operations against terrorist suspects would need to apply rules for law enforcement that conform with human rights law. These rules would not prohibit the use of lethal force: they would only limit the use of lethal force to situations in which the loss of human life was imminent and less extreme means would be insufficient. The administration has spoken of a “more flexible understanding of imminence” in the context of self-defense under the UN Charter, but has not explained how its use of lethal force complies with the more stringent requirement of imminence under international human rights law governing law enforcement.
President Obama’s own remarks suggested that many threats to US interests no longer reach the intensity of an armed conflict:
In some cases, we continue to confront state-sponsored networks like Hezbollah that engage in acts of terror to achieve political goals. Other of these groups are simply collections of local militias or extremists interested in seizing territory. And while we are vigilant for signs that these groups may pose a transnational threat, most are focused on operating in the countries and regions where they are based. And that means we’ll face more localized threats like what we saw in Benghazi, or the BP oil facility in Algeria, in which local operatives – perhaps in loose affiliation with regional networks – launch periodic attacks against Western diplomats, companies, and other soft targets, or resort to kidnapping and other criminal enterprises to fund their operations.
At a time when the United States is reassessing its use of the military detention facility at Guantanamo Bay and the 2001 Authorization for the Use of Military Force (AUMF) because of the significantly reduced threat posed by al Qaeda, the administration should also review and provide greater public clarity about the applicable body of law governing future counterterrorism operations. For any targeted killings outside of an objective armed conflict situation, the United States should apply human rights law. This reexamination of the legal regime governing the use of force is necessary to meet the president’s goal of “continu[ing] to fight terrorism without keeping America on a perpetual wartime footing.”
International Committee of the Red Cross (ICRC), Commentary on the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1952), vol. 1, p. 50, http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-I.pdf.
Protocol Additional to the 1949 Geneva Conventions relating the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, art. 1(2), http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c10c125641e0052b545. Although the US has signed but not ratified Protocol II, most of its provisions are considered reflective of customary international law. In March 2011 the Obama administration reiterated its support for Protocol II and urged Senate ratification. See The White House, Office of the Press Secretary, “Fact Sheet: New Actions on Guantanamo and Detainee Policy,” March 7, 2011, http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy.
Prosecutor v. Tadic, IT-94-1AR72,Decision on Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 70, http://www.icty.org/x/cases/tadic/acdec/en/51002.htm; Prosecutor v. Kunarac et al., Case No. IT-96-23 and IT-96-23/1, Appeals Chamber, Judgment, June 12, 2002, para. 56, http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf.
Prosecutor v. Tadic, IT-94-1-T, Opinion and Judgment, May 7, 1997, para. 562, http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf; see also, Prosecutor v. Limaj, IT-03-66-T, Judgment of November 30, 2005, paras. 135-170, http://www.icty.org/x/cases/limaj/tjug/en/lim-tj051130-e.pdf.
Prosecutor v. Ramush Haradinaj et. al., IT-04-84-T, Judgment of April 3, 2008, paras. 49 and 60, http://www.icty.org/x/cases/haradinaj/tjug/en/080403.pdf.
See e.g., Special Court for Sierra Leone, Prosecutor v. Sesay, Kallon and Ghao, SCSL-04-15-T, Judgment, March 2, 2009, para, 95, http://www.sc-sl.org/LinkClick.aspx?fileticket=D5HojR8FZS4%3d&tabid=215.
See e.g., International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the Confirmation of Charges, January 29, 2007, para. 233, http://www.iclklamberg.com/Caselaw/DRC/Dyilo/PTCI/ICC-01-04-01-06-803-tEN_English%20Decison%20on%20the%20confirmation%20of%20charges,%2029%20January%202007.pdf.
See, e.g., Report of the Secretary-General’s Panel of Experts on Sri Lanka, March 31, 2011, para. 181, http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.
See, e.g., Report on the Situation of Human Rights in Somalia, E/CN.4/1997/88, March 3, 1997, paras. 53-54, http://www.unhchr.ch/huridocda/huridoca.nsf/b617b62bcb39ea6ec1256610002eb7a6/48010b5fba66f1e2802566db005876b5?OpenDocument.
See UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), p. 29, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/JSP3832004Edition.pdf.
ICRC, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” Opinion Paper, March 2008, p. 3, http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf.
See ICRC, Commentary on the Geneva Conventions of 12 August 1949, vol. 1, pp. 28-29, http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-I.pdf.
Remarks by President Barack Obama, Springfield, Illinois, November 2, 2012, http://www.presidency.ucsb.edu/ws/index.php?pid=102618.
The International Court of Justice first affirmed the applicability of international human rights law during armed conflicts in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: “The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency,” http://www.icj-cij.org/docket/files/95/7495.pdf.
In the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the 2004 Wall Advisory Opinion), the Court confirmed the applicability of international human rights law to situations of military occupation, http://www.icj-cij.org/docket/files/131/1671.pdf.
The Human Rights Committee has address this issue in General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (May 26, 2004), para. 11, http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f,
and in its observations on States’ Periodic Reports. See, e.g., Concluding observations of the Human Rights Committee, United States, UN Doc. CCPR/C/USA/CO/3 (2006), para. 10: "The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war," http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/0d83f7fe89d83ed6c12571fb00411eb5/$FILE/G0644318.pdf.
See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990), http://www1.umn.edu/humanrts/instree/i2bpuff.htm. Law enforcement officials, including military personnel, “shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
See “Strengthening our Security by Adhering to our Values and Laws,” Remarks of John O. Brennan,
Assistant to the President for Homeland Security and Counterterrorism, Harvard Law School, Cambridge, Massachusetts, September 16, 2011, http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an.
Charter of the United Nations, art. 51, narrowly permits self-defense “if an armed attack occurs,” and only “until the Security Council has taken the measures necessary to maintain international peace and security,” http://www.un.org/en/documents/charter/chapter7.shtml. This definition of self-defense has been expanded by the concept of anticipatory self-defense, which hinges on the meaning of “imminent” attack. Under the conditions set out in the mid-19th century Caroline Case, an attack is imminent when “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
See Ralph Crawshaw et al. Human Rights and Policing (Leiden: Martinus Nijhoff, 2d ed. 2007),pp. 148-50.