The War (?) against Al-Qaeda. Noam Lubell. Draft, forthcoming, in E. Wilmshurst (ed.), International Law and the Classification of

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1 The War (?) against Al-Qaeda Noam Lubell Draft, forthcoming, in E. Wilmshurst (ed.), International Law and the Classification of Conflicts (Oxford University Press, 2012) 1

2 Introduction This chapter examines the legal ambiguities surrounding a war that might not be a war, against an elusive enemy whose existence as an organised entity is sometimes cast in doubt. Military operations are carried out under the mantle of this war and casualties and destruction have followed, rendering the analysis and classification a crucial matter. The very use of the phrase War against Al-Qaeda or the more general War on Terror can cause controversy. The former is a more plausible option, as at the very least it denotes the existence of parties to the conflict. The latter phrase will, however, rear its nebulous head at certain points in the chapter, since the conflict with Al-Qaeda has at times been described as part of a war on terror. 1 While the term war will feature repeatedly, this is a result of its inescapable and frequent occurrence in the surrounding debates. Nonetheless, when the actual classification of the situation is to be examined, the analysis will rest upon the term of armed conflict as the more accurate legal categorisation. It must also be stressed at the outset of the chapter that although this conflict encompasses numerous if not endless challenges in the area of international law, the focus therein is on those issues that have direct bearing upon the classification of the conflict Background to the hostilities The majority of the combat operations by the US and its allies against Al-Qaeda in its various forms have occurred in Afghanistan. The armed conflict in Afghanistan is, however, the subject of chapter 9 in this book and is not at the focus of the current analysis. Rather, this chapter has at its core operations conducted against Al-Qaeda outside the Afghan battlefields. These include operations carried out in Yemen, Somalia and Pakistan. Since the US is the 1 The inverted commas surrounding these phrases are a pertinent reminder of the controversy surrounding them; the rest of the chapter will avoid using them but their existence is assumed. 2 For further detailed analysis of a number of issues raised in this chapter, see N. Lubell, Extraterritorial Use of Force Against Non-State Actors (2010) (Lubell, Extraterritorial Use of Force). The current chapter builds upon the previous analysis, further developing the arguments and examining the issue within new contexts. 2

3 fulcrum upon which this declared war turns, it will also be the State at the focus of the current chapter. The temporal background to the hostilities presents a preliminary challenge to any analysis. Some benchmark the war on terrorism as beginning in March 1973 when Yassir Arafat ordered the murder of two United States diplomats in Khartoum, 3 and references to Al- Qaeda s attacks against the US in this context mention incidents such as the bombing of US embassies in East Africa and of the USS Cole. 4 Certain US administration officials have taken a position which appears to be more restrictive, if not altogether unambiguous, noting that the war with al-qaeda is since at least that day referring to 11 September If there is to be considered an armed conflict with Al-Qaeda, this date would appear to be less controversial than the earlier ones, and shall be the temporal starting point for the current analysis. The geographical scope of this conflict is a further challenge to be addressed. Afghanistan has clearly been the epicentre of operations against Al-Qaeda, although it might be argued that Pakistan now occupies an equally central position. A recent media article points to operations against Al-Qaeda spanning across an area stretching from Algeria to Somalia, and Yemen to Tajikistan. 6 Whilst some of these operations are primarily in the realm of intelligence gathering and support for the efforts of other governments, a number of the 3 A.N. Pratt, 9/11 and Future Terrorism: Same Nature, Different Face in M. Schmitt and G. Beruto (eds), Terrorism and International Law: Challenges and Responses (2002), , R. Wedgwood, Military Commissions: Al Qaeda, Terrorism, and Military Commissions (2002) 96 AJIL 328, Remarks by Alberto R. Gonzales, Counsel to the President, before the American Bar Association Standing Committee on Law and National Security, Washington, DC (24 February 2004) 3, available at (Remarks by Alberto Gonzales), see also discussion below on threshold of violence. 6 Secret Assault on Terrorism Widens on Two Continents New York Times (14 August 2010) (Secret Assault on Terrorism) 3

4 situations concern direct use of US forces against Al-Qaeda bases and operatives. 7 Of these, the most active of areas is Pakistan. According to the May 2010 US National Security Strategy, Al Qa ida s core in Pakistan remains the most dangerous component of the larger network, but we also face a growing threat from the group s allies worldwide. 8 The most publicised operation in recent time is, of course, the killing of Osama Bin-Laden in Abbottabad, Pakistan. 9 The other and more frequent type of operation is the use of unmanned aerial vehicles (drones) to carry out strikes against militants. Since 2004 until the first half of 2011, there have been over 250 strikes by the US against Al-Qaeda/Taliban/related targets, mainly in the areas of North and South Waziristan. 10 The number of strikes has been rising, with large jumps in 2008 and since The estimate of casualties from these strikes ranges between 1,500 to 2,500, and the ratio between militants to non-militants is disputed some place non-militant casualties at around 7%, while others have arrived at a far higher number, comprising approximately 20% of the fatalities, and even more. 11 The question of fatalities amongst the US forces carrying out these strikes is virtually a non-issue, since unmanned aerial drones are regularly employed. Notwithstanding, the use of drones raises other questions of international law which will be addressed at a later point in this chapter. 7 Ibid. 8 The White House, The National Security Strategy of the United States of America (May 2010) 20 (US National Security Strategy). 9 Press Briefing by Senior Administration Officials on the Killing of Osama bin Laden, Office of the Press Secretary, The White House (2 May 2011). See further discussion of the operation in the section on rules on application of force. 10 The link between Al-Qaeda and Taliban and the unclear affiliation of individuals will be revisited below when examining the nature of the parties, and later in the classification of the situation in Pakistan in the context of the connection to the conflict in Afghanistan. 11 Formal and verifiable information is virtually impossible to find, but a number of organisations present information said to be based on reliable sources. See e.g. The New America Foundation, The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, , available at (NAF, The Year of Drone); an additional source of statistics is The Long War Journal, available at however these statistics, especially in relation to the civilian fatalities, are called into question by other organisations. See M. Ahmad, The magical realism of body counts Al Jazeera (13 June 2011) 4

5 Yemen has been an additional staging ground for operations against Al-Qaeda. The most well-known of strikes occurred in 2002, when a US Predator drone launched a Hellfire missile at a vehicle travelling on a desert road in Yemen. In the vehicle, were Qaed Salim Sinan al-harethi, an alleged al-qaeda leader, and five of his associates. 12 This particular strike received significant attention as it was one of the first publicised incidents of its kind. It was not, however, the last. In the nine months since December 2009, there have been at least four strikes by the US in Yemen, and dozens of casualties have been reported. Most of these were said to be targeting Al-Qaeda operatives. 13 Attacks have also been carried out against Al-Qaeda targets in Somalia using missiles and, in September 2009, a helicopter raid by special forces in which they attacked trucks carrying militants including an alleged Al- Qaeda cell ringleader and then carried away the bodies of some of these militants for identification. 14 Allegations have also been made of US involvement in a military operation which led to the death of Al-Qaeda operatives in Syria. 15 The geographical scope of detention operations is as wide, if not more so. Many individuals have been detained in this war against Al-Qaeda. As noted at the outset, the conflict in Afghanistan is the subject of a separate chapter and, accordingly, the current section does not cover the issues surrounding those detained in Afghanistan. Detentions said to be part of a war against Al-Qaeda do, however, go beyond the Afghan battlefields. Individuals from countries such as Pakistan, Somalia and Yemen have ended up in US detention, as have others from European States. In some cases they have been transferred as part of a formal 12 U.S. Strike Kills Six in Al Qaeda Washington Post (5 November 2002) 13 Secret Assault on Terrorism, civilians have also been killed in these attacks, although precise figures are unclear. Ibid. 14 US bombs Islamist town in Somalia BBC News (3 March 2008); U.S. Kills Top Qaeda Militant in Southern Somalia New York Times (14 September 2009) 15 Syria Halts Diplomacy After U.S. Military Strike The Wall Street Journal (28 October 2008) (Syria Halts Diplomacy) 5

6 process between the US government and the authorities of the State which detained them, whether under a pre-existing extradition agreement or a formal similar ad hoc agreement. In other cases, however, individuals have been transferred to US hands and beyond outside of a formal and judicially supervised process as part of what has become known as extraordinary rendition. There is no single method or pattern to this practice and it varies on a number of aspects, for example: individuals might be initially detained formally by the security forces of the State they are in before being handed over; 16 they might be captured and then handed to the US by a non-state armed group, or even by other individuals with hidden personal agendas; 17 they may even be abducted directly by covert US agents. 18 Once captured, they could find themselves in a known US controlled facility such as in Guantanamo Bay; they might be held by the US in a secret location; and they may find themselves transferred by the US to a third State. 19 Secret CIA detention facilities, known as black sites, are alleged to have existed in Thailand, Romania, Poland, and Lithuania, amongst other countries. 20 Individuals have also been transferred to or detained by other States where they have allegedly been held on behalf of the CIA for the purposes of interrogation or detention without trial, with concerns arising over such cases in relation to Jordan, Egypt, Morocco, Syria, Pakistan, Ethiopia, Djibouti and Uzbekistan Al-Qaeda 16 See for example case of Murat Kurnaz and other alleged cases mentioned in Joint Study on Global Practices in Relation To Secret Detention in The Context of Countering Terrorism of The Special Rapporteur on The Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin; The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak; The Working Group on Arbitrary Detention represented by its Vice-Chair, Shaheen Sardar Ali; and The Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc.A/HRC/13/42 (19 February 2010), paras 127,133 (UN, Study on Secret Detention) 17 See allegations of capture and transfer for money in Georgia. Ibid, para CIA agents guilty of Italy kidnap BBC News (4 November 2009) 19 See detailed reports and examples in UN, Study on Secret Detention; see also Committee on Legal Affairs and Human Rights, Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, Rapporteur: Mr Dick Marty (11 June 2007) (CoE, Second Report) 20 UN, Study on Secret Detention, paras , ; CoE, Second Report. 21 UN, Study on Secret Detention, paras

7 While the targets of these military strikes, operations and detentions are often described as Al-Qaeda operatives, their precise affiliation and the nature of Al-Qaeda itself raises a number of questions. First and foremost is the need for an examination of Al-Qaeda as a party to a conflict. Who and what is Al-Qaeda? Most notable is the fact that its description ranges from being a distinct group, to a network of groups, or even a network of networks, and in some cases an ideology rather than an entity. 22 Al-Qaeda has been described as an organised entity with central direction, training, and financing 23, and up until 2001 it appears that it could be identified as an organised group with a clear leadership and even a fixed location, including training camps and headquarters. 24 The US invasion of Afghanistan precipitated the physical dispersal of the group and the transition towards a decentralised network of many groups and individuals operating on the basis of a shared ideology and, in some cases, past training in the Afghan camps. 25 However, there may still be loose connections to the leadership of a mother Al- Qaeda (Al Qaeda al Oum), 26 or, as the US has referred to it, The Al Qa'ida Associated Movement (AQAM), comprised of al Qa'ida and affiliated extremists, which displays decentralizing control in the network and franchising its extremist efforts within the 22 US National Military Strategic Plan for the War on Terrorism, Chairman of the Joint Chiefs of Staff, Washington, DC (1 February 2006) 13 (US National Military Strategic Plan); Transnational Terrorism: The Threat to Australia, Publication of the Government of Australia (2004) 31, available at (The Threat to Australia). For a detailed study of Al-Qaeda in the past, see J. Burke, Al-Qaeda: Casting a Shadow of Terror (2003); for a recent study see J. Rollins, Al Qaeda and Affiliates: Historical Perspective, Global Presence, and Implications for U.S. Policy, Congressional Research Service Report (5 February 2010) (Rollins, Al Qaeda and Affiliates) 23 Remarks by Alberto Gonzales, 3; see also D. Jinks, September 11 and the Laws of War (2003) 28 Yale Journal of International Law 1, M. Mohamedou, Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States. Program on Humanitarian Policy and Conflict Research, Harvard University (July 2005) 13 (Mohamedou, Non-Linearity of Engagement) 25 It is said that the number of people trained in the camps ranges between ten to twenty thousand. Ibid. 26 Ibid,14. 7

8 movement. 27 The Australian government, which at times has been supportive of the US position in the war on terror, sets forth a similar assessment, going so far as to point out that For many Muslim extremists, Al Qaeda has become more an idea or ideology than a physical entity. 28 According to a 2010 Report to the US Senate Foreign Relations Committee: Over the past eight years, Al Qaeda has evolved into a significantly different terrorist organization than the one that perpetrated the September 11 attacks. At the time, Al Qaeda was composed mostly of a core of veterans of the Afghan insurgency against the Soviets, with a leadership structure made up mostly of Egyptians and bin Laden, a Saudi of Yemeni descent. Most of the organization s plots either emanated from or were approved by the leadership. The Al Qaeda of that period no longer exists. Due to pressures from U.S. and international intelligence and security organizations, it has transformed into a diffuse global network and philosophical movement composed of dispersed nodes with varying degrees of independence. [ ]The Al Qaeda network today also is made up of semi-autonomous cells which often have only peripheral ties to either the leadership in Pakistan or affiliated groups elsewhere. Sometimes these individuals never leave their home country but are radicalized with the assistance of others who have travelled abroad for training and indoctrination US National Military Strategic Plan, The Threat to Australia, US Senate Foreign Relations Committee, Al Qaeda in Yemen and Somalia: A Ticking Time Bomb: Report to the Senate Committee on Foreign Relations, S. Rep. No. 111, 111th Congress, 2d Session (21 January 2010) 5 (SFRC, A Ticking Time Bomb) 8

9 At best, it appears that if Al-Qaeda is to be described as a distinct entity, perhaps the most appropriate depiction that has been offered is of a structure that is murky with a loosely organised but highly focused network. 30 Indeed, even the Director of the FBI spoke of a three-tiered threat, with the core al-qaeda organisation as the first tier, a second tier of small groups who have some ties to an established terrorist organization, but are largely selfdirected. Think of them as al Qaeda franchises hybrids of homegrown radicals and more sophisticated operatives, and a third tier of homegrown extremists. They are selfradicalizing, self-financing, and self-executing. They meet up on the Internet instead of in foreign training camps. They have no formal affiliation with al Qaeda, but they are inspired by its message of violence. 31 Regional groups operating under the Al-Qaeda name operate in a number of places, including Al Qaeda in the Arabian Peninsula (AQAP, who are a merger of the Saudi and Yemeni Al-Qaeda groups), 32 Al-Qaeda in the Islamic Maghreb, 33 and Al- Qaeda in Iraq (sometimes referred to as Al Qaeda in Mesopotamia). 34 Members of Al-Qaeda, together with members of other militant groups and parties to more than one conflict, appear to be moving and regrouping in different formats. As noted in the Foreign Relations Committee Report: The U.S. military has largely pushed Al Qaeda out of Afghanistan and Iraq. While the military efforts should be praised, they have not eliminated the threat. Many fighters 30 Transnationality, War and the Law, A Report on a Roundtable on the Transformation of Warfare, International Law, and the Role of Transnational Armed Groups, Program on Humanitarian Policy and Conflict Research, Harvard University (April 2006) 9 (Transnationality Roundtable) 31 R. Mueller, Director, Federal Bureau of Investigation, From 9/11 to 7/7: Global Terrorism Today and the Challenges of Tomorrow Transcript of Chatham House event (7 April 2008), available at See also Rollins, Al Qaeda and Affiliates: Al Qaeda network today also comprises semi-autonomous or self radicalized actors, who often have only peripheral or ephemeral ties to either the core cadre in Pakistan or affiliated groups elsewhere. 32 SFRC, A Ticking Time Bomb, Rollins, Al Qaeda and Affiliates, 14-18; Profile: Al-Qaeda in North Africa BBC News (3 June 2009) 34 Rollins, Al Qaeda and Affiliates, 13-14; E. Schmitt, Iraqi Qaeda Group Shifts to Remain a Threat New York Times (20 December 2009) 9

10 affiliated with Al Qaeda and other militant groups have taken refuge across the Afghan border in Pakistan s Federally Administered Tribal Authority, which remains a major safe haven. At the same time, intelligence and counter-terrorism officials said hundreds and perhaps thousands of veterans of the wars in Iraq and Afghanistan have relocated to other places, primarily Yemen and Somalia. 35 In addition to the difficulty of describing Al-Qaeda as a distinct organisation, it is therefore apparent that many of the Al-Qaeda operatives targeted by the US operations may have links or be directly affiliated with other groups. In particular, the strikes in Pakistan are often aimed at a mixture of Al-Qaeda and Taliban militants. In fact, a significant proportion of the targets of these strikes are described as members of Taliban, rather than Al-Qaeda. The differentiation between the groups and individuals runs along numerous lines, from ideological aims to tribal affiliations. Indeed, under the heading Taliban there are a number of different groups operating in both Afghanistan and Pakistan. There are additional groups and networks, such as the Haqqani network, who are described as being affiliated with both Taliban and Al-Qaeda. 36 Groups based in Pakistan have been engaged in fighting against the Pakistani government, as well as against NATO forces in Afghanistan. The government of Pakistan is said to view some of them as a threat, while others are good Taliban who do not carry out their attacks inside Pakistan. 37 Al-Qaeda operatives appear to be embedded within Taliban strongholds in Pakistan. Moreover, the identity of the group does not necessarily clarify their scope of operations Pakistani Taliban do not restrict their operations to Pakistan, but also cross into Afghanistan and have been accused of being behind the 35 SFRC, A Ticking Time Bomb, B. Woodward, Obama's Wars (2010) 11 (Woodward, Obama s Wars); Pakistan Fight Stalls for U.S. The Wall Street Journal (13 August 2010) 37 B. Roggio, US airstrikes targets Haqqani Network, kill 17 in North Waziristan The Long War Journal (23 August 2010), available at 10

11 attempted bombing in New York s Times Square in May Attempts to neatly categorise the militant groups are further compounded by the presence of militants belonging to groups active in additional countries. For example, it appears that one of the targets of a strike in Pakistan was the head of the Islamic Movement of Uzbekistan. 39 Pakistan has developed into a major recruiting ground and operational base for widespread militant activity, and it has been estimated that In just over half of the serious plots against the West since 2004, alleged militants received training at camps in Pakistan. 40 Based on the above, it is clear that Al-Qaeda plays an important role in this setting, but the precise nature and involvement is hard to determine. The connections between the groups and their activities revolve around various factors, ranging from tribal affiliations to shifting political alignments amongst factions within Al-Qaeda and the Taliban. A study into the relationship between Al- Qaeda and the Taliban, notes that There is no single way to characterize the al-qaeda- Taliban relationship after 2001, because neither al-qaeda nor the Taliban is a homogeneous and centrally controlled organization. Rather, they consist of networks of like-minded groups and individuals that answer, to some degree or other, to a centralized leadership, but at the same time have autonomy to act on their own. 41 Other areas of operations in the war against Al-Qaeda raise similar questions about the nature and identities of the parties involved. Thus, in Somalia there appear to be ties between Al- Qaeda and one of the local Islamist insurgent groups engaged in the Somali conflict Woodward, Obama s Wars, ; Holder Backs a Miranda Limit for Terror Suspects New York Times (9 May 2010) 39 Uzbek rebel killed in Pakistan BBC News (2 October 2009) 40 The New America Foundation, The Battle for Pakistan: Militancy and Conflict in Pakistan's Tribal Regions, available at 41 A. Stenersen, Al-Qaeda's Allies: Explaining the Relationship Between Al-Qaeda and Taliban Factions After 2001, Policy Paper by The New America Foundation (April 2010), available at 42 Rollins, Al Qaeda and Associates, 19-22; Somali Islamists al-shabab join al-qaeda fight BBC News (1 February 2010); U.S. Kills Top Qaeda Militant in Southern Somalia New York Times (14 September 2009) 11

12 Connections exist not only with the fighting in Afghanistan, but also to Iraq. The operation against al-qaeda operatives in Syria targeted an al Qaeda-linked head of a Syrian network that smuggled fighters, weapons and cash into Iraq, and was said to be aimed at preventing the flow of Al-Qaeda fighters through Syria into Iraq. 43 In light of the above, and unlike many other conflict situations, the case of Al-Qaeda presents a unique challenge of identifying who, in fact, are the parties to the conflict. This amorphous identity of the groups and their individual affiliation will be of direct relevance to the classification analysis and returned to in later sections. 3. Views of the parties and of others on conflict classification The complexities and lack of clear answers in the factual background to this situation are reflected in the views of States and others as to the classification. Not only is it virtually impossible to find an agreement on the classification, it is in fact difficult to find any coherent opinion on the matter by States, whether or not they are directly involved. 3.1 The United States The primary findings are a collection of statements made by various officials and in policy papers, all of which differ in time and by speaker. In the early years following September 2001, there were numerous statements asserting that the US was engaged in war with Al- Qaeda, and on occasion with a wider group of terrorists. Examples include: 43 Syria Halts Diplomacy; see also U.S. says raid in Syria targeted smuggler Reuters (27 October 2008) 12

13 The nation is at war with terrorist organizations that pose a threat to its security and that of other societies that cherish the principle of self-government 44 The United States has been at war with al Qaeda. 45 The enemy includes al-qaeda and other international terrorists around the world, and those who support such terrorists [...] and certainly terrorists who can strike not only within the United States but who can threaten our forces abroad and our friends and allies. 46 The US administration under President Obama is reported to have sought to distance itself from the previous administration s rhetoric of a war on terror and some of the more controversial policies that accompanied it. 47 The 2010 National Security Strategy uses terms such as global campaign, but does not do away with the rhetoric of war. Rather, the change is in the attempt to better define the enemy: [T]his is not a global war against a tactic terrorism or a religion Islam. We are at war with a specific network, al-qa ida, and its terrorist affiliates who support efforts to attack the United States, our allies, and partners US National Military Strategic Plan. 45 Remarks by Alberto Gonzales, Excerpts from interview with Charles Allen, Deputy General Counsel for International Affairs, US Department of Defense, By Anthony Dworkin (16 December 2002), available at 47 Under Obama, War on Terror Phrase Fading Associated Press (1 February 2009); Obama Administration Says Goodbye to War On Terror : US Defence Department Seems to Confirm use of the Bureaucratic Phrase Overseas Contingency Operations The Guardian (25 March 2009) 48 US National Security Strategy,

14 The notion of being at war with Al-Qaeda has therefore been retained by the US. 49 The question of precise classification is, perhaps deliberately, most often avoided. Notwithstanding, there have been references to it in certain statements and cases which may shed light on the matter. In a speech given at the Annual Meeting of the American Society of International Law, the Legal Adviser of the US Department of State took the unequivocal view that the United States is in an armed conflict with al Qaeda. Although in his presentation of the legal framework there was no clear statement of classification, reference was made to reliance on Common Article 3 of the Geneva Conventions, and Additional Protocol II, whose subject matter is non-international armed conflicts. Furthermore, the current conflict was differentiated from traditional international conflicts. 50 It should, however, be noted that this speech covered a number of situations together: the US operations with consent of the Afghan government, ISAF forces in Afghanistan, and the wider conflict with Al-Qaeda. It is therefore left open whether the inference on classification was intended to cover all situations or just some of them. The clearest evidence of thought being given to the issue of classification arose in the context of the Hamdan case before the US Supreme Court. Although the individual was captured in Afghanistan, the Court s reasoning is relevant to all operations against members of Al-Qaeda. The Government was resistant to a categorisation as international armed conflict, in particular due to the ramifications this might have on entitling individuals to status of prisoner of war. Simultaneously, the idea of a noninternational conflict was portrayed as meeting the obstacle of not being an internal situation. 49 See also The United States is currently at war with Al Qaeda and its associated forces in HRC, National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1 - United States of America (Universal Periodic Review), UN Doc. A/HRC/WG.6/9/USA/1 (23 August 2010) para 82 (US Periodic Review Report). 50 H. Koh, The Obama Administration and International Law Remarks at the Annual Meeting of the American Society of International Law, Washington, DC (25 March 2010) 14

15 In the context of applying Common Article 3 of the Geneva Conventions, the Court accepted that the conflict could potentially be classified as non-international armed conflict. 51 The US Government appears to have since accepted this classification of non-international as applying to its self-declared war against Al-Qaeda. 52 The debate over the possibility of extraterritorial non-international armed conflict will be returned to in the next section. 3.2 Al-Qaeda and territorial States Al-Qaeda itself does not engage in legal classifications of armed conflict, although it has in the past adopted the war rhetoric in the form of a Fatwa declaring war. 53 As for the governments in whose territory the US operations against Al-Qaeda have taken place, their views have largely been concerned with the issues relating to the resort to force within their territories, rather than its classification. In Pakistan, the debate has been whether or not Pakistan and the US are acting in cooperation, based on a contradicting mixture of public statements and back room dealings. 54 The strikes in Yemen appear to have been approved by the country s leaders, 55 while the chaos that is Somalia renders questions of approval a matter of legal theory. There may also be internal situations within these countries that are to be classified as non-international armed conflicts regardless of US involvement, and which may, as will be seen in the later analysis, affect the classification of US operations. 3.3 Other States and entities 51 Hamdan v Rumsfeld, 548 U.S. 557, 126 S.Ct (29 June 2006) (Hamdan). 52 US Periodic Review Report, para Declaration of War against the Americans Occupying the Land of the Two Holy Places: A Message from Osama Ben Mohammad Ben Laden (August 1996), translation available at 54 Woodward, Obama s Wars, 26, 52, 117, 286, 367; A Quiet Deal With Pakistan The Washington Post (4 November 2008); B. Ghosh and M. Thompson, The CIA's Silent War in Pakistan Time (1 June 2009) 55 Secret Assault on Terrorism. 15

16 The views of other States cannot be readily discerned since they do not usually differentiate between a war against Al-Qaeda, and the wider context which includes Afghanistan and often Iraq. In debates at the Security Council, the most common approach is a general call for adherence to international law, including human rights law and humanitarian law. This does little to clarify the existence of an armed conflict situation, let alone its classification. Of the UN human rights bodies, the Special Rapporteur on extrajudicial, summary or arbitrary executions has noted the difficulty of claiming the existence of a conflict with Al-Qaeda outside Afghanistan and Iraq Author s analysis of the classification (or existence) of the conflict There are five possible outcomes to the classification analysis in this case: (i) This is an international armed conflict between the US and Al-Qaeda. (ii) This is a non- international armed conflict between the US and Al-Qaeda. (iii)this is not a separate armed conflict, but is part of other existing conflicts such as the one in Afghanistan. (iv) This is an armed conflict between the US and Al-Qaeda that requires a new classification since it is neither international nor non-international. (v) This is not an armed conflict at all, and none of the discussed operations should be classified as such. 4.1 International armed conflict 56 HRC, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston UN Doc. A/HRC/14/24/Add.6 (28 May 2010) para

17 The short answer to this proposition would be that international armed conflict must be between two (or more) States, and since Al-Qaeda is not a State, we do not have an international armed conflict. This conclusion is based on the fact that according to article 2 of the Hague Regulations 57 and article 2 common to the 1949 Geneva Conventions, the conventions apply to armed conflicts between contracting parties. 58 Since Al-Qaeda, as a non-state actor, cannot be a contracting party to these treaties, 59 it follows that these treaty rules will not apply to armed conflicts between it and the US. 60 As for customary international law, it tends to focus on the substantive elements of international humanitarian law rather than conditions for applicability. Furthermore, the content of the rules for international armed conflict are obviously predicated on inter-state conflicts, as is clear from the detailed rules on prisoners of war, and in the rules of the Fourth Geneva Convention on civilians which rely heavily on the notions of countries operating in sovereign territories (or occupying each other s territory). 61 Applying the rules of international conflicts would place, in most cases, impossible burdens on the non-state actor to comply with a myriad of detailed provisions such as those of the Third Geneva Convention. Two caveats require mention. First, there is the possibility that Al-Qaeda might be considered as part of State forces. The clearest potential for this interpretation would be in the first stages of the war in Afghanistan, when the Taliban was the de facto government, and Al-Qaeda and 57 Regulations Annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, Unlike the Geneva Conventions, the 1907 Hague treaties only apply if all the parties to the conflict are parties to the treaties. The Hague Regulations are recognised as reflecting customary international law. 59 Though they can declare an intent to abide by treaties, or enter into specific agreements with states on adherence to rules of IHL, see discussion of the possibilities in M. Sassoli, Transnational Armed Groups and International Humanitarian Law, Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, No. 6 (Winter 2006) (Sassoli, Transnational Armed Groups) 60 With the exception of Common Article 3 to the Geneva Conventions, which will be dealt with in the next section. 61 S. Murphy, Evolving Geneva Convention Paradigms in the War on Terrorism : Applying the Core Rules to the Release of Persons Deemed Unprivileged Combatants The George Washington University Law School Public Law and Legal Theory Working Paper No. 239 (2007) 8 (Murphy, Evolving Paradigms) 17

18 Taliban were fighting alongside each other. 62 This is largely a factual question as to the nature of their relationship, and is of relevance to chapter 9 on Afghanistan. Outside of Afghanistan, there does not appear to be evidence that would support an assessment of Al- Qaeda as State forces. The second issue concerns the possibility of an international armed conflict being triggered by virtue of military operations by one State taking place in the territory of another State, for example the US in Pakistan. 63 This goes to the question of whether there might be an international armed conflict between the US and Pakistan (or Yemen or Somalia), but does not necessarily transform the conflict with Al-Qaeda into an international one two conflicts can exist alongside each other. This matter will be returned to later. Lastly, a separate matter arises in the context of the ius ad bellum. The fact that these operations take place against a non-state actor located on the territory of another State gives rise to legal issues of the ius ad bellum and how the relevance of the laws on the resort to force might affect the classification. Issues beyond classification and therefore not dealt with under the current scope include questions such as responsibility for harbouring alleged terrorist groups; attribution of group acts to a State; and the right to self-defence against nonstate actors. 64 Much of the debate over classification will rest upon the question of consent by the territorial State. If the latter consents to the operation, then the focus turns to classifying the existing situation within the State. If, however, the territorial State does not consent, there 62 See discussion of that conflict in ch 9 on Afghanistan 63 See discussion of the possibility in ch 3 on Legal Concepts and in ch 13 on Lebanon 64 See arts of International Law Commission s Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), and the commentaries thereto, ;Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ Rep 1986, p.14, paras ;.Prosecutor v Tadić, IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, paras ; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Rep 2007, p.43, paras ; SC res (2001); for detailed analysis of self-defence against non-state actors see Lubell, Extraterritorial Use of Force. 18

19 arises the question of whether the use of force on its territory is a violation of the ius ad bellum which, in turn, might lead to the finding of an international armed conflict. There are two reasons that such an automatic conclusion is not supported in this chapter. First, the separation between the ius ad bellum and the ius in bello lies at the heart of the need to remember that we are faced with two separate questions: i) whether the resort to force on the territory of another State violated the ius ad bellum; and ii) how to classify the hostilities taking place in this territory under the ius in bello. These are separate matters and must not be confused. The lack of consent may or may not lead to the determination that the rules on resort to force have been violated; much of this will rest on issues such as a possible right to self-defence against non-state actors and whether a particular case meets the legal requirements mandated by such a right. 65 The question of classification rests not on this, but on a factual determination of hostilities, and if these are between the foreign State and the non-state actor, with both the foreign State and territorial State not engaging in fighting between them and not claiming to be at war with each other, then there may be little support for the argument that there is an international armed conflict. Although some may argue that any use of force by a State on the territory of another without the consent of the latter brings into effect an international armed conflict between the two States, 66 it is submitted that such a position unnecessarily mixes the ius ad bellum and the ius in bello and can lead to problematic results. The underlying question for classification must be that of identifying the parties to the conflict, rather than consent. For example, when US forces apparently crossed the border into Syria and killed members of the Al-Qaeda in Iraq group, 67 this was not claimed to be an armed conflict between the US and Syria, despite the lack of Syrian consent and a possible violation of the ius ad bellum. Moreover, if one were to accept the view that 65 Ibid. 66 See discussion in ch 3 above. The same chapter also recognises that this appears to be a minority opinion at least in this volume if not also in the literature. 67 Syria Halts Diplomacy.. 19

20 violations of the prohibition on the use of force in article 2(4) of the UN Charter necessarily trigger an international armed conflict between the two States involved, it should be recalled that such violations are not limited to large-scale military operations. Indeed, Israel s abduction of Eichmann was an illegal use of force on Argentinian territory. Surely nobody would argue that Israel and Argentina were then engaged in an international armed conflict? The determination and classification of an armed conflict must remain separate from possible violations of the ius ad bellum. Nonetheless, the view may exist that extraterritorial operations against non-state actors in certain circumstances do trigger an international armed conflict, especially if consisting of large-scale attacks that damage national infrastructure and cause widespread harm. If that is the case, this would still not necessarily affect the classification of the conflict we are examining; it could bring about an international armed conflict between the two States, but this would take place alongside the separate non-international armed conflict with the nonstate actor. This picture could of course change if the non-state actor became aligned with a State. 68 The second reason the classification of the conflict currently examined is unlikely to be affected, is that apparently, at least in the case of Pakistan, some form of consent does exist. Public displays of dissatisfaction are likely to be the result of domestic politics, and cannot hide the fact that there appears to be cooperation at the highest level. On balance, politicians 68 A similar discussion may be had in the context of the 2006 conflict between Israel with Hezbollah in Lebanon. As long as Hezbollah was not a State agent and could be said to be a non-state actor, it is submitted that the conflict between it and Israel should be classified as non-international. It might be argued that there was an international armed conflict between Israel and Lebanon on account of some of the targets chosen by Israel, or occupation of Lebanese land in the final days of the conflict, but this would be separate to the noninternational conflict between the State of Israel and the non-state actor Hezbollah. See debate over the classification of this conflict in ch 13 on Lebanon. 20

21 statements cannot overcome the factual reality of Pakistani approval for drones to take off from within Pakistan and involvement of Pakistani intelligence officers in the choice of targets. 69 There have also been reports of a fusion cell in a jointly operated command centre across the Afghan border, and possible Pakistani involvement in operational matters such as routes and targets, 70 although the amount of information and control given to Pakistan may be limited to video feeds and communications intercepts Non-international armed conflict The possibility of the US and Al-Qaeda being engaged in a non-international armed conflict must be addressed in two stages. The first is whether this is conceptually possible, as a matter of legal classification. If the answer to this question is positive, the second question is whether the facts of the case match the required criteria. At first glance there may appear to be two instinctive and contradictory responses to the initial question. On the one hand, seeing as the conflict involves a State fighting a non-state actor, it would seem that classification as a non-international armed conflict is the most obvious route. On the other hand, since the operations by the US are taking place in the territory of other States, there might also be an inclination to classify the situation as international. The possibility of non-international armed conflicts including extraterritorial situations is not a new idea, for example when one State sends forces into another State to assist, by request, in the conflict against a rebel group, or spillover conflicts. 72 While a detailed theoretical analysis of extraterritorial non-international 69 Woodward, Obama s Wars; The drones of war (2009) 15(4) Strategic Comments 1-2; Secrecy and denial as Pakistan lets CIA use airbase to strike militants The Times (17 February 2009) 70 J. Barnes and G. Miller, Pakistan Gets a Say in Drone Attacks on Militants Los Angeles Times (13 May 2009) 71 E. Schmitt and M. Mazzetti, In a First, U.S. Provides Pakistan With Drone Data The New York Times (13 May 2009) 72 See discussion in ch 4 on Applicable Law. 21

22 armed conflict is not possible here, 73 the following points serve to show that the noninternational armed conflict model can be both applicable and suitable to cases such as the one at hand. The notion that extraterritorial hostilities between a State and a non-state actor can be regulated by the rules of non-international armed conflict finds support in the views of numerous commentators. 74 The essence of this claim rests primarily on viewing the category of non-international armed conflict as non-international, i.e. a conflict that is not between States, whether or not it is purely internal. As noted earlier, this approach is supported by the fact that the substantive differentiation between the rules of international armed conflict and non-international armed conflict is linked to the nature of the parties engaged in the fighting. Non-state actors would be unable to comply with the many of international armed conflict provisions, and States would be unwilling to grant non-state actors immunities from prosecution granted to prisoners of war in conflicts of this type. The rules of noninternational armed conflict are precisely designed for conflicts in which one of the parties is a non-state actor. As for the textual interpretation of the treaties, Additional Protocol II would not apply extraterritorially, as it requires that the non-state actor control territory of the State it is fighting. 75 Common Article 3 requires that the conflict be taking place in the territory of one of the High Contracting Parties. However, this provision does not mention that it need be the territorial State which is engaged in the fighting. Insofar as the Geneva Conventions have 73 For further analysis see Lubell, Extraterritorial Use of Force. 74 Sassoli, Transnational Armed Groups, 8-9;.Murphy, Evolving Paradigms, 14-32; D. Jinks, The Applicability of the Geneva Conventions to the Global War on Terrorism' (2005) 46 Virginia Journal of International Law 165, 189; Human Rights First, Memorandum to the Human Rights Committee (18 January 2006) 3 fn Moreover, the US has not ratified this Protocol. 22

23 achieved global recognition with 194 States parties, 76 virtually any territory would be that of a high contracting party. 77 Indeed, it is not altogether preposterous to advance an interpretation of this type, and it appears to nest comfortably with the original intention of Common Article 3, as explained by Sassoli: Does this imply that conflicts between a High Contracting Party and an armed group, which do not occur on the territory of that High Contracting Party, but on the territory of another State, are not non-international armed conflicts? Or, does it simply recall that according to the principle of the relative force of treaties, those treaty rules apply only on the territories of States that have accepted them? From the perspective of the aim and purpose of IHL, the latter interpretation must be correct, as there would otherwise be a gap in protection, which could not be explained by States concerns about their sovereignty. 78 Indeed, although most of the Common Article 3 situations might be internal, the provision uses the term non-international rather than internal and, as supported by the commentaries, the Article should be applied as widely as possible. 79 The question of whether the role 76 See ICRC database at see also view of the ICRC that As the four Geneva Conventions have universally been ratified now, the requirement that the armed conflict must occur in the territory of one of the High Contracting Parties has lost its importance in practice. Indeed, any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention. ICRC, How is the Term Armed Conflict Defined in International Humanitarian Law? Opinion Paper (March 2008) 77 Exceptions might be conflicts taking place on the high seas, or in a new State which did not become party to the Conventions. 78 M. Sassoli, Use and Abuse of the Laws of War in the War on Terrorism (2004) 22 Law and Inequality: A Journal of Theory and Practice J. Pictet (ed), Geneva Convention for the Amelioration or the Condition of the Wounded and Sick in Armed Forces in the Field: commentary (1952) 50; See also ibid, 43: In the end the draft text submitted by the International Committee of the Red Cross was approved with the exception of the words especially cases of civil war, colonial conflicts, or wars of religion which were omitted. The omission of these words, far from weakening the text, enlarged its scope. 23