One of the most striking features of President Obama’s 28 May 2014 commencement address at West Point was its “turning the page” theme. The speech sought to look at the major post 9/11 conflicts (i.e. Iraq, Afghanistan and to a certain extent the “targeted killing” campaign against Al Qaeda’s “core”) through a rear view mirror and focus instead on security threats the graduating cadets, and by extension the rest of us, face in what was described as a “new world.”  It took place in a context where old Cold War emotions have been stirred over the Ukraine and China is flexing its growing military power in support of excessive maritime claims.  It is also a period during which many Western military forces are withdrawing from a decade of engagement in counterinsurgency and counterterrorism operations.  Naturally they are recalibrating where their doctrinal priorities should lie. However, it is terrorism, and in particular “decentralized Al Qaeda affiliates and extremists” that are identified as “the most direct threat to America at home and abroad.”

It is transnational terrorism that has presented the greatest challenge to the international legal community. This is a community that has struggled to shake off its 20th Century obsession with inter-State conflict, witnessing deep divisions over how to characterize conflict with non-State actors; deal with threats operating from “ungoverned spaces”; or agree on who may be targeted with lethal force and when such action is justified. Like State security forces international lawyers will not be able to return to the much more comfortable and highly regulated world of inter-State conflict. To address this challenge lawyers will need to reconcile two competing legal approaches: the first that favors an exclusive application of “armed conflict” law to destroy Al Qaeda, and the second which only wants to apply human rights law based law enforcement. As the page is turned on Afghanistan and greater attention is placed on an evolved Al Qaeda there is a requirement to consider the limitations of these exclusionary approaches.

The President’s speech stakes out a middle ground between realists and interventionists, placing an emphasis on actions based on proportionality and effectiveness. The unilateral American use of military power will, according to the President, still occur “when our core interests demand it: when our people are threatened; when our livelihoods are at stake; when the security of our allies is in danger.”  However, there is a suggested definition of American exceptionalism that for many non-Americans will likely appear much more positive in tone than how it is ordinarily perceived.  Leadership is expressed in terms of American engagement in multilateral action and a reliance on international institutions, as well as approaches beyond just employing military force. The question remains how easily a similar middle ground can be reached within the international legal community.

What is often missing in the discussion by lawyers and non-lawyers about the Al Qaeda threat is the requirement to know your enemy and accurately establish the kind of conflict in which you are involved. Unfortunately, too often the focus has been on two narratives about “Al Qaeda Central.”  The first is that Al Qaeda is a relatively small “criminal” group solely amenable to a law enforcement response, not unlike terrorist groups of the 1970s and 80s.  The other is that Al Qaeda’s activities can be curtailed primarily through killing a supposedly finite number of key leaders.  In fact, the threat posed by Al Qaeda is far more complex. This is clearly evident in President Obama’s reference to a possible byproduct of the Syrian civil war being “the capacity of battle-hardened extremist groups to come after us only increases.”  Implied in the speech is the message that even with its core being degraded Al Qaeda is not only far from being eliminated, the threat it poses exceeds that of rival States.

This is consistent with the recognition that Al Qaeda is not just a small transnational terrorist organization, but rather is part of a broader Salafi-based jihadist movement seeking to restore a global Caliphate. As a leading part of that “movement” Al Qaeda represents a complex network of franchises, allies, affiliated groups, homegrown terrorist cells, and even lone-wolf attackers.  The recognition of Al Qaeda as part of a revolutionary vanguard raises significant questions regarding its strategy and the scope of the conflict.  While the jihadist movement is itself riven with disagreements over dealing with the “near” or “far” enemy, the President’s speech also indicates that Western interests will remain threatened regardless of that debate. The 9/11 style attacks on the homeland are not eliminated and importantly American interests, and similarly those of other Western states, extend beyond state borders to other parts of an increasingly globalized world.

The speech serves as an entry point to discuss Al Qaeda not simply as terrorists (for which of course there is no universally accepted legal definition), but more accurately as a complex amalgamation of insurgents and other groups engaged in violence to oust forms of governance based on the Eurocentric State model. As Michael S. Ryan suggests in his 2013 work, Decoding Al-Qaeda’s Strategy: The Deep Battle Against America, their violent strategy is “a recast, protracted guerrilla war along Maoist lines and fought using fourth-generation warfare principles…” Importantly, this very secular strategy involves conflict occurring at the boundaries of where law enforcement and armed conflict interface and overlap.

In some cases jihadist violence clearly falls within the category of armed conflict.  In other situations it will be human rights based law enforcement that will uniquely apply, such as in efforts to cut off sources of support (including from criminal elements), or deal with those not engaged as direct participants in the hostilities.  Because of the overlap of potential law enforcement and hostilities responses, States will often be confronted with a policy choice of which framework to apply.  That choice should default to a law enforcement paradigm, with hostilities rules only being resorted to in exceptional circumstances, such as when the human rights based rules will not adequately address the threat. Law enforcement is the default position in the United States, Canada, Europe and other States when dealing internally with this threat.  Even when an insurgency is occurring, the “police primacy” approach has often proven to be the most effective option for addressing the threat.   With respect to counterterrorism the trend is increasingly to look to law enforcement type action, as is represented in the United States capture missions. President Obama’s 2013 Drone Speech was noteworthy for its incorporation of human rights based norms, even though the strikes were said to be conducted in the context of an armed conflict with Al Qaeda.  The law enforcement option is not only less violent it represents “normalcy” and perhaps the most visual indicator of success.

This does not mean State armed forces will never be authorized to conduct operations using the broad authorities inherent in situations of armed conflict in order to disrupt or disable Al Qaeda groups. This can occur while supporting other governments or when taking action in national self-defense.  However, it is only when there is an armed conflict that security forces can, at law, apply such conduct of hostilities rules. The legal discussion will need to center on a realistic application of the widely accepted, although by no means, sole criterion for the existence of a non-international armed conflict (i.e., the ICTY Tadic decision: “protracted armed violence between governmental authorities and organized armed groups”). On this issue there needs to be a greater connection between legal theory and the factual reality confronting security forces on the ground.  Unfortunately, there continues to be a strategic legal battle between those who would set the bar for armed conflict unrealistically high seeking to force the application of a law enforcement approach, and others who appear to want to apply armed conflict rules to all international uses of force.  Problematically, the latter option looks too much like an application of the proverbial military hammer.

Exclusionary approaches, which favor either human rights law or the law governing armed conflict do not match either the complexity of the threat, or the required sophistication of the response. Those seeking to exclusively apply the human rights option rarely address the issue of its effectiveness across the full range of potential violence or discuss the long-term impact on peacetime based human rights law if it is to be seriously applied to address armed conflict based threats.  Similarly, those who look exclusively through a “war” lens need to pause as the next phase of the conflict unfolds. With international participation in the Afghan conflict winding down discussion will increasingly turn to the exercise of “legitimate self-defense” as an alternative basis for drone strikes and why capture is not a preferred option in countries where hostilities are not widespread. The possibility of acting in “self-defense” rather than as part of a more generalized armed conflict will intensify the discussion about when such action is permissible and whether it is carried out under armed conflict rules.  It is will also require proponents of the hostilities approach to address the fact that some Al Qaeda related uses of force must involve law enforcement, particularly against criminal gangs or others providing indirect support to the jihadists.  The Maersk Alabama and Jessica Buchanan missions against criminal/pirate gangs have established that international law enforcement responses are a realistic, although exceptional option.

It is the “one of” exercises of self-defense directed at Al Qaeda that will provide the greatest challenge for the international community in the near term.  The Cold War obsession with inter-State conflict has resulted in international law not adequately addressing defensive uses of force against non-State actors. A key issue is how the principles governing the State self-defense (i.e. imminence), which operate at the strategic level, interact with the law regulating the conduct of hostilities, or that governing law enforcement. Further, the Tadic threshold for armed conflict was developed in the context of existing hostilities rather than defensive uses of force.  As a result, additional criteria such as nature of the threatening group (i.e. not by a criminal group for profit motive), their intended target (i.e. a warship rather than private citizen), whether military forces are required to defeat the threat, and the potential for collateral damage also may need to be considered.

Perhaps John Fishel said it best in his foreword to Max Manwaring’s book on modern asymmetric warfare:

“in a major insurgency, one cannot kill one’s way to victory; however, as Sir Robert Thompson has pointed out, one cannot defeat an established insurgency without killing.”

The same may be said for Al Qaeda.  The legal solution to this 21st Century challenge must inevitably be found in a middle ground where a law enforcement response is the preferred approach, but the conduct of hostilities may also be necessary.