Kenneth Roth
By Kenneth Roth
What stops the US from declaring war on a person it perceives as a security threat and attacking and killing him? The fact that doing so would violate the target’s right to life and fundamental due process, you might say. But in war, killing an enemy’s combatants is permitted. So can the US declare war and designate a combatant with such perceived threats as a drug kingpin in New York, a Mafia don in Chicago or Assange or Snowden?
More than moral revulsion militates against such abuse of war powers. There are also legal limits on who is properly viewed as a combatant and when war is an appropriate response to a threat. Those limits are rarely discussed, but nearly 12 years after 9/11, with US involvement in the traditional civil war in Afghanistan winding down, it is time to apply those limits to the global “war” against Al Qaeda and its armed affiliates.
President Barack Obama recognised the problem in his May 23 speech at the National Defence University. He warned that “a perpetual war... will prove self-defeating, and alter [the US] in troubling ways.” Quoting James Madison, Obama warned: “ ‘No nation could preserve its freedom in the midst of continual warfare.’ “
But the president did not take the next step of declaring an end to the war with Al Qaeda or even explaining how citizens will know when it is over. International law provides guidance. The standard for when a legally recognised “armed conflict” exists between a state and an armed group appears in the protocols and official commentary to the Geneva Conventions and has been fleshed out by various international tribunals. An armed conflict requires a certain level of hostilities — judged by factors such as the number, duration and intensity of individual confrontations; the use of military weaponry; the number of participants in the fighting; and the casualties and displacement caused. It also requires the antagonists to possess armed forces under a command structure with the capacity to sustain military operations.
The Al Qaeda threat to the US, while still real, no longer meets those standards. Al Qaeda can mount sporadic, isolated attacks and some may cause loss of life, but they are nothing like army operations that define an armed conflict under international law.
Obama has said that the core of Al Qaeda — the original enterprise now based, if anywhere, in the tribal areas of northwestern Pakistan — has been “decimated.” Its affiliates, such as Al Qaeda in the Arabian Peninsula and Al Qaeda in the Islamic Maghreb, are more robust armed groups but have limited capacity to project their violence beyond their regions.
These affiliates are significant actors in Yemen and northern Africa, but it is far from clear that they pose a threat to the US greater than, for example, Mexican drug cartels or international organised-crime networks — organisations for which few would characterise US containment efforts as “war.” That the US continues to deploy military force against Al Qaeda is not enough to qualify that effort as an armed conflict, because if it were, a government could justify the summary killing of “combatants” simply by using its armed forces to do so. Admitting that the contest with Al Qaeda is no longer a war does not mean that the US is defenceless or even that lethal force is forbidden. In the absence of war, US conduct is governed by international human rights law, which favours arrest and prosecution but still permits lethal force, if necessary, to stop an imminent threat to life.
In his May speech, Obama said that the US is already abiding by this standard beyond the Afghan theatre. “Our preference is always to detain, interrogate and prosecute,” he explained, and “we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.”
Those are the standards for policing, not war. Why not take the logical step and declare the war against Al Qaeda over? There may be a price to pay. Obama’s opponents will holler and score points after the next, inevitable terror attack. But the cost of using war rhetoric to shunt aside limits on lethal force is even higher. Plenty of governments are eager for excuses to summarily kill their enemies, however tenuously defined — even those living in the US. The US government has also committed abuses in the name of fighting terrorism. The Obama administration should rethink its elastic definition of war on Al Qaeda and end it. WP-BLOOMBERG
By Kenneth Roth
What stops the US from declaring war on a person it perceives as a security threat and attacking and killing him? The fact that doing so would violate the target’s right to life and fundamental due process, you might say. But in war, killing an enemy’s combatants is permitted. So can the US declare war and designate a combatant with such perceived threats as a drug kingpin in New York, a Mafia don in Chicago or Assange or Snowden?
More than moral revulsion militates against such abuse of war powers. There are also legal limits on who is properly viewed as a combatant and when war is an appropriate response to a threat. Those limits are rarely discussed, but nearly 12 years after 9/11, with US involvement in the traditional civil war in Afghanistan winding down, it is time to apply those limits to the global “war” against Al Qaeda and its armed affiliates.
President Barack Obama recognised the problem in his May 23 speech at the National Defence University. He warned that “a perpetual war... will prove self-defeating, and alter [the US] in troubling ways.” Quoting James Madison, Obama warned: “ ‘No nation could preserve its freedom in the midst of continual warfare.’ “
But the president did not take the next step of declaring an end to the war with Al Qaeda or even explaining how citizens will know when it is over. International law provides guidance. The standard for when a legally recognised “armed conflict” exists between a state and an armed group appears in the protocols and official commentary to the Geneva Conventions and has been fleshed out by various international tribunals. An armed conflict requires a certain level of hostilities — judged by factors such as the number, duration and intensity of individual confrontations; the use of military weaponry; the number of participants in the fighting; and the casualties and displacement caused. It also requires the antagonists to possess armed forces under a command structure with the capacity to sustain military operations.
The Al Qaeda threat to the US, while still real, no longer meets those standards. Al Qaeda can mount sporadic, isolated attacks and some may cause loss of life, but they are nothing like army operations that define an armed conflict under international law.
Obama has said that the core of Al Qaeda — the original enterprise now based, if anywhere, in the tribal areas of northwestern Pakistan — has been “decimated.” Its affiliates, such as Al Qaeda in the Arabian Peninsula and Al Qaeda in the Islamic Maghreb, are more robust armed groups but have limited capacity to project their violence beyond their regions.
These affiliates are significant actors in Yemen and northern Africa, but it is far from clear that they pose a threat to the US greater than, for example, Mexican drug cartels or international organised-crime networks — organisations for which few would characterise US containment efforts as “war.” That the US continues to deploy military force against Al Qaeda is not enough to qualify that effort as an armed conflict, because if it were, a government could justify the summary killing of “combatants” simply by using its armed forces to do so. Admitting that the contest with Al Qaeda is no longer a war does not mean that the US is defenceless or even that lethal force is forbidden. In the absence of war, US conduct is governed by international human rights law, which favours arrest and prosecution but still permits lethal force, if necessary, to stop an imminent threat to life.
In his May speech, Obama said that the US is already abiding by this standard beyond the Afghan theatre. “Our preference is always to detain, interrogate and prosecute,” he explained, and “we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.”
Those are the standards for policing, not war. Why not take the logical step and declare the war against Al Qaeda over? There may be a price to pay. Obama’s opponents will holler and score points after the next, inevitable terror attack. But the cost of using war rhetoric to shunt aside limits on lethal force is even higher. Plenty of governments are eager for excuses to summarily kill their enemies, however tenuously defined — even those living in the US. The US government has also committed abuses in the name of fighting terrorism. The Obama administration should rethink its elastic definition of war on Al Qaeda and end it. WP-BLOOMBERG
