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.