Targeting the terrorist enemy: the boundaries of an armed conflict against transnational terrorists.

AuthorThynne, Kelisiana

Abstract

Following the terrorist attacks of 11 September 2001, the US declared Al-Qaeda and its associates as 'the terrorist enemy'. Under the previous and current Administrations, the US's security strategies have focused on combating this 'terrorist enemy' in various ways including the so-called 'war on terror' or 'war with Al-Qaeda': an armed conflict against transnational terrorists to which international humanitarian law ('IHL') supposedly applies. This article considers the notion of targeting transnational terrorists under IHL. The article addresses the issue of whether an armed conflict against terrorists exists and what sort of armed conflict it may be. It then examines whether terrorists are legitimate targets in and outside an armed conflict, drawing on the recent 'Interpretive Guidance on Direct Participation in Hostilities' by the International Committee of the Red Cross. The article concludes that terrorist attacks in general do not give rise to armed conflict; that there is no legitimate war against transnational terrorists; and, therefore, that military targeting of such transnational terrorists can only occur in limited circumstances.

Introduction

Following the terrorist attacks of 11 September 2001 ('September 11') on the World Trade Center and the Pentagon in the United States of America ('US'), the US declared Al-Qaeda and its associates (1) as 'the terrorist enemy' (2) and launched attacks against them. In so doing, they also launched an attack against Afghanistan, where Al-Qaeda was based with support of the Taliban, the de facto Government of Afghanistan. Since September 11, under the previous Administration, the US's security strategies have focused on combating this 'terrorist enemy' in various ways. (3) While several different approaches were taken, including immigration policies, freezing finances, and mutual assistance and police cooperation, (4) one major approach was the so-called 'war on terror': (5) an armed conflict against transnational terrorists to which international humanitarian law ('IHL') supposedly applies.

Under the new Administration of President Obama, the approach to terrorism is multifaceted and varied, including improving food security, greater diplomacy, strengthening partnerships and addressing the underlying causes of terrorism. (6) The approach is more nuanced than a 'war on terror', and specifically, the Administration has rejected the use of this term and the term 'global war'. (7) However, the language remains that of conflict, and the need to combat terrorism. The 'war on terror' has now become a 'war with Al-Qaeda'. (8) Indeed, in his inaugural speech, President Obama said: '[o]ur nation is at war against a far-reaching network of violence and hatred'. (9)

The Administration also maintains the rhetoric of the 'terrorist enemy'. (10) The Office of the Coordinator for Counterterrorism under the US Department of State states that the 'terrorist enemy' is in the process of creating a 'global insurgency', employing 'subversion, sabotage, open warfare and, of course, terrorism'. (11) The US State Department Country Report on Terrorism 2008 notes that 'Al-Qa'ida and associated networks continued to lose ground, both structurally and in the court of world public opinion, but remained the greatest terrorist threat to the United States ... in 2008'. (12) One of the approaches to the 'terrorist enemy' threat has been to increase the size of the Army and Marines. (13) Further, while the Administration no longer uses the term 'unlawful enemy combatant', it continues to use military commissions to try those accused of committing terrorist offences outside the US and in the wars in Afghanistan and Iraq. Although, on 22 January 2009, President Obama issued an executive order to close the detention facilities at Guantanamo Bay, which, at the time of writing, had not yet happened.

The US has argued that this proposed war or armed conflict against transnational terrorists, and now specifically Al-Qaeda, would give the US the ability to target terrorists with military force when they are planning, or have performed, terrorist attacks against US interests. (14)

Military targeting can only occur during an armed conflict against a legitimate target. It involves identification of a particular person or military object that is part of an existing armed conflict, and directing military force against that person or object for the purpose of killing or putting out of action that person or object. (15) The policy arguments behind targeted killings include that the persons carrying out the targeting are not killed and that there is less risk of 'collateral damage' of persons protected from the conflict. In other words, it generally meets requirements of proportionality and military necessity. (16)

The war in Afghanistan is such an armed conflict and was entered into on the basis of self-defence, against the September 11 attacks, under the international law on the use of force. (17) Beyond any controversy around the legitimacy of the conflict and reasons for the armed conflict, the conflict in Afghanistan now represents an armed conflict to which IHL applies. The US Government under the previous Administration had, however, proposed that the 'war on terror' was an extension of this war in Afghanistan, (18) an armed conflict in which they could target Al-Qaeda and associated terrorist organisations under IHL. (19)

The notion, continued under the current Administration, of a 'legal armed conflict' arises out of the fact that the US considers itself engaged in a war against Al-Qaeda since the September 11 attacks, outside of the territorial boundaries of Afghanistan and separate to the war fought against the Taliban. (20) In other words, there is an armed conflict against the 'global insurgency' that is Al-Qaeda. (21) The 'war' is fought across borders against transnational terrorists who are non-State actors, for which a State is not legally responsible.

Al-Qaeda is considered by the US to be such a terrorist. It is a collection of individuals and groups that operate across national borders inside and outside of Afghanistan. (22) This so-called legal armed conflict (23) would allow the US to use military force against such 'transnational terrorists' (24) wherever they are in the world: 'mountains in Afghanistan, a village ... in Pakistan, the streets of Milan'. (25) However, it is essentially a policy of targeting terrorists with military force in the context of an armed conflict, rather than engaging in an armed conflict involving armed forces on the ground.

The rhetoric surrounding military targeting and the 'war on terror' has confused the two areas of law around the use of force--the jus ad bellum, which applies to when the use of force is permitted to begin, and the jus in bello (or IHL), which determines how the force is to be applied when the initial use of force results in an armed conflict. It has been said that military targeting can be performed under jus ad bellum notions of self-defence, but such force can only be used in response to an actual or imminent armed attack. (26) With military targeting under IHL, there does not need to be any initial use of force engaging a right of self-defence, the person who is targeted merely needs to be a legitimate target in the course of an existing armed conflict. The law relevant to military targeting is IHL, not jus ad bellum. (27)

At least two examples of where the US has already attempted to use military targeting (albeit through the CIA, not the US military, and increasingly through the use of private military contractors) (28) occurred in 2002, after the attacks of September 11 and while the US was engaged against Al-Qaeda in Afghanistan as an international armed conflict. In February 2002, a CIA unmanned predator drone fired a missile at three suspected Al-Qaeda leaders on the Pakistan-Afghanistan border. (29) In November 2002, a CIA-operated plane launched a missile into Yemen specifically targeting and killing Abu Ali al-Harithi, an Al-Qaeda member, allegedly Osama bin Laden's body guard and implicated in the 2000 attack on a US destroyer off the coast of Yemen. (30) In the second case, Yemeni forces had already tried to arrest Ali al-Harithi and had been killed. He was alleged to be 'an active combatant engaged in ongoing plans against the United States'. (31) The US has stated that it considered it had the right to target terrorists anywhere in the world under IHL. (32)

This article considers the notion of targeting transnational terrorists, such as Al-Qaeda, under IHL, and, in so doing, rejects the notion that 'war on terror', now dubbed 'the war with Al-Qaeda', is a real war. It is a rhetorical war, under which there may be elements of armed conflict, but not all aspects of terrorism create an armed conflict, and not all terrorists are legitimate targets. The first section of the article addresses the issue of whether an armed conflict against terrorists exists and what sort of armed conflict it may be. This analysis is necessary to consider what aspects of IHL apply to the armed conflict. The second section examines whether terrorists are legitimate targets in and outside an armed conflict, drawing on the recent 'Interpretive Guidance on Direct Participation in Hostilities' by the International Committee of the Red Cross ('ICRC'). (33) The article concludes that terrorist attacks in general do not give rise to armed conflict; that there is no legitimate war against transnational terrorists; and, therefore, that military targeting of such transnational terrorists can only occur in limited circumstances.

  1. Framing the scope of the 'transnational' armed conflict

    In order to determine whether the US can militarily target terrorists, it is important to consider the circumstances under which military force can be used. The use of military force is regulated by IHL (34) and IHL only applies when there is an armed...

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