What’s in a Name: The GWOT, Redefinition Accomplished

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These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

Unresolved, that is, if observed from a purely US perspective. No other state, not even the United States’ closest allies, has adopted the idea of a global, transnational armed conflict with terrorist groups, and I won’t even mention the ICRC. Even within the academia it is mainly (perhaps even exclusively) US authors who entertain the notion of a global armed conflict with Al-Qaeda. Why then hasn’t this practically universal rejection of the global armed conflict idea, coupled with the fact that there is simply no fighting, no armed violence, happening outside the limited areas mentioned above, resulted in a change in the US position?

The answer to this question of course depends on what actor in the US we are talking about. From the administration’s point of view, it is not in its interest to reject a theory which affords it significant flexibility, for which the previous administration has paid most of the political price, and which has not met with much hostility in the US Supreme Court. From the standpoint of the US international legal academia, however, the answer is more complicated, and at least two-fold.

First, there is the perennial debate about whether terrorism should be fought through a crime paradigm, or a war paradigm. The former is often thought to be a distinctly European, rather feeble way of doing things, incapable of meeting the challenges of the modern world, which often require the use of force. This type of thinking is by no means confined to scholars generally supportive of Bush policies – far from it. It is nonetheless completely wrong, for the very simple reason that it starts off from a false premise.

At least as a matter of law, there is no such thing as a choice between a crime paradigm and a war paradigm for fighting terrorism. The choice is false because one does not exclude the other. What does exist is a policy choice as to whether force should be used by states in response to terrorism in any given situation, say in Afghanistan or Pakistan. Once that force is actually used, as a matter of fact, the law of armed conflict will apply, regardless of the will of the parties. Indeed, the whole point of modern IHL is that it applies whether parties to the conflict wish it to apply or not, and regardless of whether their use of force is lawful or unlawful as a matter of the jus ad bellum. But when force is not used, when there is no fighting, when there is no protracted violence, IHL will equally not apply.

Thus, even if the US had no jus ad bellum right to invade Afghanistan after 9/11, it would still have had the right under the jus in bello to preventatively detain Taliban and other Afghan fighters for the duration of the hostilities. IHL applies even if force was used unlawfully as a matter of the jus ad bellum, as, for example, may or may not be the case with the recent, escalating armed violence in Pakistan. Likewise, whether the United States can lawfully use force to combat international terrorism as a matter of the jus ad bellum does not depend one whit on whether it is a party to some sort of global war in the sense of the jus in bello. The US could invade Afghanistan because it was entitled to act in self-defense under Article 51 of the Charter, not because it was previously engaged in some sort of global armed conflict with Al-Qaeda. The jus ad bellum legality of the recent US actions in Pakistan likewise depends on the consent of the Pakistani government or on a US claim to collective self-defense on behalf of Afghanistan, not on the existence of any global armed conflict.

The idea of a global conflict is thus completely unnecessary when it comes to enabling states to use force in response to terrorism. International law already allows them to do so in a variety of circumstances, and will regulate their use of force even when it is deployed unlawfully. The reason why the idea of a global conflict was constructed was not to overcome some supposedly unrealistic constraints of the crime paradigm, but in order to induce deference from the judiciary and to cast a wide net over people who have absolutely no connection to any specific armed conflict, such as the hundreds of individuals detained in Pakistan because of the bounties paid by the US government.

This brings me to the second reason why there is still significant support within the US academia for the global conflict proposition: many proponents of the armed conflict position are actually critical of the Bush administration, and are in favour of labelling the GWOT as an armed conflict precisely in order to impose meaningful constraints on the Executive. This is, for example, why the Supreme Court’s Hamdan ruling that Common Article 3 of the Geneva Conventions applied to all persons detained in Guantanamo was so widely hailed, despite its severe analytical shortcomings. Not only did CA3 vitiate the Bush administration’s military commissions, it also prohibited the outrages upon the personal dignity of detainees that the administration was engaged in.

Thus, because of the administration’s insistent position that the US Constitution and (non-self-executing) human rights treaties did not apply extraterritorially to persons detained outside the United States, the Hamdan ruling that CA3 did apply was embraced with open arms. But this was, with all due respect, remarkably short-sighted, because the price to be paid was the validation of the global conflict position. It is now in the ongoing habeas litigation regarding Guantanamo and Bagram that we clearly see how oxymoronic the idea of a ‘global non-international armed conflict’ truly is, and how few answers we get from the law of non-international armed conflict when it comes to questions such as internment or preventative detention.

So what then should be done if we are to see a change that we can truly believe in? That would, in my view, require for the Obama administration to unambiguously acknowledge that treaties such as the ICCPR and the CAT do apply extraterritorially, and that persons detained abroad are entitled to no less protection from the arbitrary exercise of governmental power merely on account of their location or citizenship. It should likewise be acknowledged that the vast majority of persons detained in Guantanamo or Bagram have no connection to any actual armed conflict, and that the law of war does not apply to them one way or the other. At the very least, from an administration officially committed to candour and transparency, we should be able to expect a public statement regarding its position that is reasoned and well-justified. Though the Obama administration is for now at least entitled to the benefit of the doubt, we should certainly not be content with mere rebranding on its part of the ‘overseas contingency operations’ variety, nor should we take for granted statements about ‘novel types of armed conflict’ that have exactly zero support in state practice or opinio juris.

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Mathias Vermeulen says

April 2, 2009

In the 4 cases before the US District Court which dealt with the question whether Bagram detainees were entitled to habeas rights, the Obama administration denied the application of Boumediene, saying basically that you couldn't compare Guantanamo with Bagram because the latter was an overseas war zone and the prisoners there were being held as part of a military action.

While this arguments maybe hold some truth for captured Afghans in Afghanistan, my believe in 'change' got another blow when I heard the Obama administration was arguing that Boumediene was also not applicable to those who were captured far away from the battlefield, for instance in..... Thailand. So far for reasonableness...

Obama has one more (last?) chance to prove that he's indeed not merely rebranding the GWOT on the 20th of May, when we will know more about his plans for the military commissions...

Charles Gittings says

April 3, 2009

An excellent article Marko. Some comments...

* I still think both Iraq and Afghanistan are "cases of partial or total occupation of the territory of a High Contracting Party" within the meaning of Geneva Common Article 2.

* 18 USC 2441(c)(2) makes it a federal offense for any US citizen or service member to commit any violation of the Hague IV (1907) Annex of Regulations ("HR"), arts. 23, 25, 27, or 28. Of particular significance in the context of detentions, art. 23[h] states:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

And sub-section (c)(2) was specifically enacted to implement certain provisions of customary law in US domestic law -- see the legislative report: Expanded War Crimes Act of 1997, H.R. 105-204 (1997.07.25).

* Today. Judge John D. Bates of the U.S. District Court for the District of Columbia issued an opinion finfing that some detainees at Bagram Air Force Base in Afghanistan were entiled to habeas proceedings pursuant to the Supreme Court's holding in Boumediene; see:

USDC D.D.C. --

AL MAQALEH v. GATES, No. 06-CV-1669 (JDB)
HAJI WAZIR v. GATES, No. 06-CV-1697 (JDB)
AL BAKR v. OBAMA, No. 08-CV-1307 (JDB)
AL-NAJAR v. GATES, No. 08-CV-2143 (JDB)

April 2, 2009





John C. Dehn says

April 7, 2009


I believe the "armed conflict" position was first upheld in Hamdi, when the Court ruled that the AUMF authorized his detention. However, my read is that neither Hamdi nor Hamdan provide direct support for the "global conflict" position as you state. Both were captured in Afghanistan. This is probably why Judge Bates ruled as he did. Whatever broad language might appear in those cases (and my recollection is that it is never all that broad in either), their facts would not provide direct authority for a broader, "global conflict" view of the AUMF. I have been careful in my scholarship and presentations to note this in (or specifically exclude the entire topic from) my analysis.

The real question is the AUMF which, as you know, probably authorizes an "armed conflict" paradigm as a matter of domestic law. Whether and where it does so consistently with international law is another story. Whether it must or should be interpreted to comply with international law requires even further analysis. I think it is a cynical mischaracterization of the facts to say that the armed conflict paradigm was adopted to gain judicial deference. In the wake of 9-11, the AUMF was a natural reaction to attacks supported from enemy elements in multiple contries.

Of course, the broader problem implicit in your analysis is that if states use armed force in violation of the jus ad bellum applicable to any transnational, non-international armed conflict, they may do so in violation of human rights norms. I am not sure it is completely accurate to say that the jus in bello always governs even when armed force is used in violation of jus ad bellum. The armed conflict threshold must first be achieved.

This was the concern I raised in our earlier discussion of war powers in U.S. municipal law. The level of armed conflict needed to permit the jus in bello to displace U.S. constitutional rights preserved in the Bill of Rights, such as occurred in the Civil War, is not entirely clear. (For those familiar, Ex parte Milligan does not truly or squarely address the issue. The Prize Cases come closer but are not entirely clear or comprehensive on the point either.)

Similarly, on the international level, targeting an enemy adversary/fighter (or 'combatant adversary' if you prefer -- as per Art. 8(2)(e)(ix) of the ICC Statute) becomes a prohibited extrajudicial killing if not done in the context of an armed conflict. Thus, the key issue intrinsic to the "global conflict" position is determining exactly where the armed conflict threshold must be met in order for the jus in bello to displace human rights norms. (I here dismiss targeted killing rationale for the time being as potentially an unnecessary conflation of humanitarian and human rights law. Essentially the targeted killing issue -- as usually phrased -- appears to be more one of law enforcement and the appropriateness of shooting a fleeing felon.)

I think it is fairly settled that the jus in bello applies to the entire territory of both parties to an international armed conflict, at least between belligerent forces and between enemy forces and the opposing party's civilian population. It also applies to the high seas or similar areas where the war is prosecuted.

A territorial approach to the jus in bello renders the issue significantly more muddled for a transnational, non-international armed conflict. (I here note that I recognize and disagree with scholars who believe that a non-international armed conflict becomes international for jus in bello purposes the moment it becomes transnational. To my mind, the armed forces of two states must be involved to create an international armed conflict.)

The global conflict position appears to rest on the proposition that if the armed conflict threshold is satisfied between parties to a non-international armed conflict anywhere in the world, the jus in bello applies to the conduct of hostilities between members of those parties' armed groups/forces even in areas of relative peace that have not reached the armed conflict threshold. There is certainly some logic to this position. It would seem to be appropriate and accepted to apply similar logic between parties to an international armed conflict, even if those hostilities temporarily extend to the territory of states not party to the conflict. For instance, if the German saboteurs of the famous ex parte Quirin case had been discovered lurking in and supporting hostilities from Mexico (before it became an Allied power in 1942), I am not prepared to say that there is no state practice supporting the view that the U.S. could have targeted or captured them there even in the absence of open hostilities there. I am also not prepared to say, as you have, that there is "exactly zero support" in state practice and opinio juris for applying the jus in bello to members of a party to a non-international armed conflict supporting armed attacks from outside the territory in which it primarily occurs. The jus in bello is not that strictly territorial.

We can agree on one thing. The U.S. has frequently failed to adequately ensure that those it detains are members of adversarial party to an armed conflict with it. The use of bounties has resulted in too many innocent bystanders being detained on trumped up evidence. Poor screening practices by those afraid of mistakenly releasing the next hijacker amplified these mistakes. However, to say that these mistakes somehow undermine the entire reliance on the jus in bello with regard to those who are clearly members of or substantially supporting the hostilities a party to a non-international armed conflict -- presently confined primarily to Afghanistan and Pakistan at least as a matter of on-going and open armed attacks -- might be going a bit too far.

Charles Gittings says

April 7, 2009

"However, to say that these mistakes somehow undermine the entire reliance on the jus in bello with regard to those who are clearly members of or substantially supporting the hostilities a party to a non-international armed conflict — presently confined primarily to Afghanistan and Pakistan at least as a matter of on-going and open armed attacks — might be going a bit too far."

But that's just the point John: what it undermines -- fatally -- is any notion that the executives claims concerning the alleged guilt of accused criminals at face value. The Constitution is quite clear about such things: no bills of attainder, no punishments without a fair trial. The laws of war reinforce the Constitution on both points. See the Martens clause, HR art. 23[h], IMT art. 6, and Geneva Common Article 3.

The bottom line could not be any more simple and clear: the AUMF is facially unconstitutional, and the existing Bush administration policies regarding detentions are criminal violations of both domestic and international law. You can slice it and dice it any way you want, but indefinite detentions based on executive fiats have no place in our law or our society: we are not Nazi Germany or Stalinist Russia.

It is clear what needs to be done here: the AUMF should be repealed and the people responsible for putting these detention policies in place should be prosecuted for their crimes.