«Jessica Dorsey and Dr. Christophe Paulussen ICCT Research Paper April 2013 This ICCT conference report provides a detailed overview from the two-day ...»
John O. Brennan, Remarks addressing the Harvard Law School Brookings Conference (16 October 2011), http://www.lawfareblog.com/2011/09/john-brennans-remarks-at-hls-brookings-conference/. Additionally, a recently leaked White Paper from the US Department of Justice has surfaced reiterating this notion of imminence, but going even a step further: “First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future”. Searchable text of the White Paper available at: http://en.wikipedia.org/wiki/020413_DOJ_White_Paper.
ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 3 The issue to be debated is at what point a terrorist threat is “imminent”. Brennan argues that a flexible approach must be taken towards the imminence concept in the terrorism context, for a terrorist threat differs from traditional conflicts.12 On the one hand, al Qaeda does not have a traditional command structure, its members do not wear uniforms or carry arms openly, leading one to say they do not meet the requisite organisational criteria outlined in IHL. On the other hand, al Qaeda is capable of attacking unexpectedly and causing significant civilian and military damage, likening their acts to hostilities, which could be governed by IHL.
According to Brennan, this calls for a broader possibility to strike against terrorists out of self-defence and therefore a broader concept of imminence.13 The US argues that a pattern of behaviour over several years can form an imminent threat when alleged terrorists had previously planned, conspired and perhaps acted in other places.14 One panellist opined that the US government has used this standard but defined it beyond recognition. What John Brennan has said, and what a recently leaked White Paper from the US Department of Justice reiterates, is that its use needs to be broad and flexible – but this has led to a situation of too broad and too flexible that is beyond any Caroline manifestation of imminence. Another panellist stated that the exception formed in article 51 of the UN Charter is for an imminence likened to tanks massing on the border of one country aimed at another. In this panellist’s view, the post-9/11 approach has been to de-couple imminence from the idea that an armed attack would happen by supplanting it with the idea that great harm might happen and the concept of this occurring was so bad, the temporal element of self-defence must be relaxed – essentially for security reasons. The majority of the panellists agreed that when it came to the imminence requirement, a careful, measured and strict interpretation was advised in order to prevent attacks and reprisals.
The question becomes whether the broadening of the principle of imminence has, to an extent, indeed become recognised by the international community or if it is forecasted to do so in the (near) future. This segues nicely into the third main issue discussed in the panel: temporal considerations of armed conflict.
When trying to define the beginning or ending of an armed conflict, many challenges arise, especially regarding conflicts between a state and a non-state actor. Derek Jinks has outlined guidelines about the initiation and cessation of armed conflict as well as defining what an armed conflict actually is.15 He writes that regarding the initiation, international armed conflict (IAC) is more straightforward.16 In case of a NIAC, one can turn to Common Article 3 of the Geneva Conventions, which provides that in armed conflicts not of an international character, minimum standards apply to each party. One integral issue identified in the literature is that there is no authoritative definition of armed conflict. The International Law Association’s Use of Force Committee concluded a five-year study into this issue and delivered its findings in the 2010 Committee Report. In that report, the committee confirmed that at least two characteristics are found with respect to all armed conflicts: 1) the existence of organised armed groups that are 2) engaged in fighting of some intensity. In addition to these minimum criteria respecting all armed conflict, IHL includes additional criteria so as to classify conflicts as either international or non-international in nature.17 With regard to the end of the application of IHL, in both IACs and NIACs, the general rule is that IHL applies until the “general close of military operations”.18 However, the point at which that occurs, especially with regard to a conflict between a state and a non-state actor, is not clear. A peace treaty (though uncommon) is the Brennan, ibid.
Derek Jinks, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts”, Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law (Cambridge, January 27-29, 2003), http://www.hpcrresearch.org/sites/default/files/ publications/Session3.pdf. See also Rosa Brooks, “War Everywhere: Rights, National Security Law and the Law of Armed Conflict in the Age of Terror”, University of Pennsylvania Law Review 153, no. 675 (2004).
This is based on the fact that the Geneva Conventions apply in full to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them”, or in “any cases of partial or total occupation of the territory of a High Contracting Party”. Essentially, as Jinks points out, “Hostilities between states are, for the most part, governed by the laws of war irrespective of the intensity, duration, or scale of the conflict”.
International Law Association Use of Force Committee Report (2010), http://www.ila-hq.org/download.cfm/docid/2176DC63-D268A664754F9F87.
However, there are exceptions: the obligation to repatriate persons protected under the Third (POWs) and Fourth (Civilians) Geneva Conventions triggered by the “cessation of active hostilities” and the obligations of occupying powers extend beyond the “general close of military operations”.
The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 4 clearest method of ending a conflict.19 But even in the absence of such a peace treaty, a complete cessation of hostilities and a de facto resumption of normal relations between the parties may occur.20 During the symposium, one panellist remarked that it is never easy to draw a line at the beginning or the end of armed conflict but the correct law nevertheless must be applied.21 Another thought the relevant question was not necessarily about the beginning or end, but rather whether there is an IAC or a NIAC in any given situation.22 Yet another reiterated that the need for organisation criteria applies and though the question is difficult regarding when to apply IHL, it is an important one that should not be abandoned.23 Finally, the discussion with respect to the temporal dimension refocused on the US, demonstrating that the US government cites situations that occurred pre-9/11 in its justification of this current conflict with al Qaeda, going back to 1996 with Osama Bin Laden’s fatwa.24 Regarding the end of hostilities, some officials say “when Al-Qaeda has degraded to such an extent it is much more difficult to carry out an attack”.25 The US and NATO plan to drawdown troops in Afghanistan by the end of 2014,26 and it will be interesting to see how the rest of the conflict on-going between the US and al Qaeda morphs once that occurs. Without the most solid link until now to an existing IAC, it remains to be seen what kind of legal framework the US will try to use once the IAC with Afghanistan draws to a close.27
3. Wherever War?: Geographical Limitations to Armed Conflict
3.1 Introduction The idea behind this panel was to discuss issues related to the geographic scope of armed conflict, such as: where can a war be fought? Where is the battlefield in an armed conflict (i.e., does it have a territorial scope tied to a nation state or a geographic region)? Is an armed conflict related to a “hot battlefield” or does the conflict follow the participants wherever they may go? Does the consent of a territorial state matter in the use of force when a Jinks, “Temporal Scope of Application of International Humanitarian Law” (2003), at 3.
Ibid. He writes: “[I]t is important to note that many commentators have suggested that the ‘general close of military operations’ standard is distinct from the ‘cessation of active hostilities’ standard. The latter refers to the termination of hostilities—the silencing of the guns—whereas the former refers to the complete cessation of all aggressive military maneuvers. On this reading, an ‘armed conflict’ might persist beyond the ‘cessation of active hostilities.’” One panellist pointed out that even in the absence of a clear definition of armed conflict, the panellist would still be in favour of applying IHL—though of course torture and killing of prisoners of war is and remains illegal under all circumstances.
The panellist went on to elaborate that in a NIAC there must be much more evidence of a conflict higher than IAC’s threshold of hostilities based on the fact that states did not desire to tie their hands when it came to controlling internal disturbances. He illustrated his point by employing the following hypothetical situation: that with Pakistan’s consent, the US killed an individual in Pakistan. This would not amount to an IAC, given that Pakistan consented, but traditionally it would not be seen as a NIAC either, and this goes back to the earlier comment about why US desires the whole world to be a battlefield—to treat al Qaeda as a single entity—for expediency, again harking back to Terry Gill’s point. He also used the example of Israel-Hezbollah as a cross-border NIAC and asked: can you even qualify something as disparate as the “global war on terror” as a NIAC. No, not in its entirety, he argued. This may be true for some of the situations but not all. And that means that not every person killed by a drone strike is killed in a NIAC.
With respect to Afghanistan, the criterion of intensity also matters—and once it is classified as an armed conflict, it remains so until a conclusion of peace. Even if there is an armed conflict, however, that does not mean the jus ad bellum becomes obsolete, especially when desiring to export the armed conflict to a third country. Either you have consent or you do not. If you have consent, one panellist’s views were that IHRL will apply because a host-state cannot accept a third state’s violations of IHRL as this would violate its own human rights obligations. Without consent, there are jus ad bellum restrictions as well.
Osama Bin Laden’s Fatwa, declaring a “holy war” against America and the West, 1996, translated into English, available at:
However, it was noted by the panellist, this can also pose problems especially with respect to terrorism as it can take as few as one or two people planning and executing an attack. So in that sense, it was a concern that this construction of a conflict with al Qaeda would never end. But on 30 November 2012, Department of Defense General Counsel Jeh Johnson stated: “on the present course, there will come a tipping point... at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed”. Johnson added that “[a]t that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda”. He also insisted, however, that he offered “no prediction about when this conflict will end, or whether we are... near the ‘beginning of the end.’” Jeh Charles Johnson, General Counsel of the U.S. Department of Defense, The Conflict Against Al Qaeda and its Affiliates: How Will it End?
(Oxford Union: Oxford University, 30 November 2012), http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/.
See M. Spetalnick and M. Ryan, “NATO sets “irreversible” but risky course to end Afghan War”, Reuters (21 May 2012), http://ca.reuters.com/article/topNews/idCABRE84J02C20120521?sp=true.
For more information on the various comments and coverage of the end of the conflict between the US and al Qaeda, see the “End of War Timeline” on Lawfare, available at: http://www.lawfareblog.com/the-end-of-war-timeline/.
ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 5 member of a non-state actor group finds him/herself there? The use of analogy between IAC and NIAC was also explored. Three main issues were identified in the discussion during the symposium: 1) the implication of territorial state consent, 2) the issue of the “hot battlefield”, and 3) combatant status and location of hostilities.
3.2 Discussion Consent provided by the territorial state (state A) to the state seeking to use force (state B) against non-state actors present in state A precludes the violation of the sovereignty of state A.28 In other words, the use of force by one state on the territory of another is allowed when that state thereto consents and the violation of article 2(4) of the UN Charter’s prohibition on the use of force is precluded.