This post is the first in a series from Gabor RonaGeoffrey Corn, and Just Security’s Derek Jinks. The debate addresses a fundamental question for US national security law: What set of international rules should apply to the US conflict with Al-Qaeda? The laws of war? International human rights law? A combination of both? We organized this discussion as a three-way debate to identify and engage substantially different perspectives on the topic. Be sure to check back tomorrow for Round 2.

Is There a War against Al Qaeda? I can think of no more fitting topic for the opening salvos of Just Security Blog. This debate is an important tip of a large iceberg, raising fundamental questions about the meaning and scope of international law on the use of force (jus ad bellum), international humanitarian law (the law of armed conflict, or jus in bello) and human rights law. I’m honored to have been asked to weigh in.

The threat of terrorism is real, severe and must be addressed with a broad spectrum of military, policing, political, diplomatic, legal, financial and intelligence gathering tools. But not every use of military force is war, and so, one might reasonably ask whether war is still a proper frame, even while military force may continue to be a legitimate tool in the toolbox.

The French have a word: “lutte.” It means more than the usual translations of “struggle” or “fight.” For example, it might suggest a variety of activities in service of a specific end, like a war on poverty or racism or bad grammar, as well as a war on Germany or the Lord’s Resistance Army or space invaders. It might be likened to one of the most well-known and misunderstood Arabic words, “jihad,” which can be any personal struggle or goal. For example, in The Response, a movie based on the transcripts of Guantanamo Combatant Status Review Tribunals, the detainee is perplexed at the judge’s question: “Do you believe in jihad?”

During my years in the ICRC Legal Division, we rejected, as did most scholars and States, the Bush Administration’s “war on terror” concept, always putting it in scare quotes. We spoke instead of a “lutte contre terrorisme.” You could also say a “jihad against terrorism” (not that we did). The “lutte” or “jihad” or “war” against terrorism is not necessarily a war in any literal/legal sense, any more than is the “lutte” against poverty or drugs.

“Struggle,” “fight” and “jihad” against terrorism don’t cut it in English. Struggle? Too weak. Fight? Too general. Jihad? Too tainted. So we speak of war. And because we speak of war, we err on the side of considering it war, or armed conflict, even when it isn’t.

This is not to say that terrorism, commonly understood to be the targeting of civilians, can’t happen in war. The Nazis, for example, were notorious and expert at terrorizing civilians. In fact, “acts of terrorism,” “measures of terrorism,” and “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are all expressly forbidden by the Geneva Conventions or their Additional Protocols – treaties that are all about war (see ICRC’s International humanitarian law and terrorism: questions and answers). But wars are fought by proper nouns, like Germany, not common ones, like terrorism. Proper nouns can surrender and promise not to do it again. Terrorism, which is a tactic rather than an entity, can’t.

So where does that place Al Qaeda? Isn’t it a proper noun? Literally, yes, but as it now exists and as the United States now construes it? No.

Application of the law of armed conflict presumes two basic criteria. First is the frequency or severity of hostilities/use of armed force. There must be a threshold below which violence is not war – even when military force is used, otherwise we risk erasing the line between crime that is not war and war that may or may not be crime. The second criterion, which is more relevant to today’s conversation, is the requirement of the existence of “parties.” International Humanitarian Law (IHL, or the law of armed conflict or law of war) is framed in terms of the rights and responsibilities of “parties” to the armed conflict. Whether they choose to do so or not, Japan and Germany can implement their rights and responsibilities under IHL through a command structure. But can the “shadow of its former self,” “decimated,” “metastasized,” “diminished,” “devastated,” “decentralized,” “fragmented” and “diffused” entities that we refer to as Al Qaida and other terrorists do that? Perhaps they once could, but today, hardly. This is not to say that terrorists are not dangerous or that terrorist groups are not inter-connected. Rather, it is to say that war is not the right paradigm, either legally or as a matter of policy. And it is not to say that war can only occur between States. Non-State actors can certainly be party to armed conflict. But because IHL is about “parties to the armed conflict,” they must exhibit a level of cohesive organization that enables them to be held responsible as an entity, not merely as individuals.

That Al Qaeda today does not meet those criteria is evident in the newly fashionable U.S. concept of “associated forces,” a term the Administration uses to describe people who are not mentioned or contemplated as the subject of hostilities in the Congressional Authorization for Use of Military Force (AUMF) triggered by the 9/11 attacks. The AUMF authorizes use of military force by the President against:  “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…”  At various times since 9/11, officials (President Obama, John Brennan, Ben Rhodes) have posited that the U.S. is also entitled to use lethal force against alleged terrorists and terrorist organizations that do not neatly fit the AUMF, for example, “terrorists,” “militants,” “jihadists,” and “insurgents” in Yemen, Somalia, perhaps Mali and other places. The theory is that these people are, or are part of, “associated forces” of Al Qaeda. The Administration cites no direct authority for its assertion that such people are targetable in a non-international armed conflict; that is, one against non-State armed groups (as distinct from an international armed conflict, meaning one between States). Instead, it analogizes to the well-established concept of co-belligerency applicable to international armed conflict. The “associated forces” theory is controversial and should be rejected.  (This does not, however, mean the U.S. is powerless against these suspected terrorists. Remember all the tools in the toolbox? Even lethal force remains available in appropriate cases. Otherwise, arrest and prosecution in the normal course of civilian justice remains an extremely effective tactic. Since 9/11, the U.S. federal courts have successfully prosecuted hundreds of international terrorism suspects, many of whom were captured abroad.

In wars between States, it’s relatively easy to distinguish the combatants from civilians. Combatants are the ones in uniforms. But in wars involving non-State armed groups, the IHL principle of distinction is more difficult to implement. Expanding the scope of targetability to include people with some unspecified association to Al Qaeda imposes risks to civilians that they should not have to bear. Indeed, the government’s theory was even criticized by the D.C. Circuit Court in Al Bihani v. Obama (at page 11):

“(t)he laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE § 74 (1906). The 55th (Arab Brigade) clearly was not a state but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.”

On February 22, 2012, General Counsel of the Pentagon, Jeh Johnson defined the term “associated forces” in a speech at Yale Law School:

“An ‘associated force,’ as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners. In other words, the group must not only be aligned with al Qaeda. It must have also entered the fight against the United States or its coalition partners. Thus, an ‘associated force’ is not any terrorist group in the world that merely embraces the al Qaeda ideology.”

That’s why it’s a mistake to speak uncritically of killing “terrorists,” “militants,” “jihadists,” and “insurgents” without sufficient thought to whether they are “part of” or sufficiently associated with Al Qaeda. It’s a mistake whether they are committing acts of violence against Americans, or non-Americans; and it’s a mistake if they are not, in fact, members of an armed force of an identifiable entity capable of implementing its rights and responsibilities under IHL. And yet, these are the descriptions being used to justify U.S. targeted killings well beyond the locus of hostilities in Afghanistan and Pakistan. For example, the group in Yemen that calls itself Al Qaeda in the Arab Peninsula (AQAP) is no doubt a terrorist organization whose members are committing crimes and who might, in specific instances, even be targetable outside the realm of armed conflict. But it is a much further cry to conclude that they are so intimately “associated’ with the Al Qaeda that is the subject of the 2001 AUMF that they can also be considered targetable as a group under the law of war. Similarly, the Pentagon considers as “recidivist” any released Guantanamo detainee who engages in “insurgent’ activity, without defining that term, and more importantly, without apparent regard to whether the activity is related to the aims of Al Qaeda or even directed at Americans or U.S. interests.

Why is it important to know where to draw the line between war and mere crime? That’s simple. Because in war, the normal, peacetime rules of civilization don’t apply. In war, killing of enemy armed forces is permitted based on their status, not on conduct. Members of a State’s armed forces can legally kill an enemy soldier even if she has never committed a hostile act. No arrest, no criminal charge, no trial is required. Likewise, in war, detention is permitted without requirements of criminal charge or trial. Outside of war, where the law of armed conflict doesn’t apply, killing and detention powers are much more strictly limited by human rights law.

To treat today’s “lutte” against Al Qaeda as armed conflict blurs important lines between war, where extrajudicial killing and detention are the norm, and crime. We are now 12 years beyond 9/11. Attempts by Al Qaeda and its ‘associate forces’ to attack Americans have been few, far between and mostly unsuccessful. There have been no successful attacks on U.S. soil since 9/11/2001 and no attempts in several years. Neither the frequency nor severity of hostilities, and neither the organization of “core Al Qaeda” today or of its so-called “associated forces,” are sufficient to unleash the legal tools of war. Threats of terrorism may persist, but all of the tools short of war remain available to confront them. Force –even military force-can be used in appropriate cases. But such force, be it killing or detention, must be consistent with the more stringent rules of human rights law rather than the more permissive rules of IHL.

By recalibrating to a post-war terrorist threat environment, the U.S. would not only come into compliance with international law, but would also serve its own national security interests in three important ways. First, the U.S. war paradigm is not widely accepted. To the extent that the United States needs the cooperation of other countries in intelligence gathering, and in targeting, interdiction and transfer of terrorism suspects, it must comply with their visions of their obligations under their domestic and international human rights law regimes. Second, the war paradigm exalts criminals, acknowledging them as warriors.  Third, it feeds animosity towards the United States, including the vision of a country on a crusade against Islam, and reduces American credibility to promote human rights abroad.

Whether or not a war against Al Qaeda was ever legal or wise, today it is neither.