Click to EnlargeEven if the administration declares the end of combat operations with the Taliban/al Qaeda in Afghanistan, will the United States nevertheless remain a party to the Afghan government’s conflict with the Taliban/AQ forces? The administration’s continued support for Kabul in confronting domestic insurgents raises this question—and as a consequence, we will all have to grapple with its legal and policy implications.

As discussed by Marty Lederman in an important post, last week President Obama declared a turning point for U.S. combat operations in Afghanistan. The President stated: “Now, thanks to the extraordinary sacrifices of our men and women in uniform, our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”

As a matter of international law, whether the United States remains a party to an armed conflict in Afghanistan requires an assessment of the facts on the ground.  If the U.S. is still a party to an armed conflict in Afghanistan, then its targeting and detention activities in this context will continue to be governed by international humanitarian law (IHL).

The end – or not – of U.S. participation in an armed conflict in Afghanistan

Despite the announced turning point, significant US operations, including those in direct support of the Afghan government, will persist in Afghanistan. As a senior official recently described the U.S.’s continued role in Afghanistan, the U.S. will no longer target individuals solely because they are members of the Taliban, but will take appropriate measures when “Taliban members directly threaten the United States and coalition forces in Afghanistan or provide direct support to al Qaeda.”  Senior officials have added that, with the use of ground forces, manned aircraft and drones, approved combat operations will consist of counterterrorism operations against al Qaeda and other groups, protection of U.S. forces, and assistance to Afghan forces. The number of U.S. troops remaining in Afghanistan in 2015 is expected to be 10,800.  These facts suggest that the U.S. may remain a participant in an armed conflict in Afghanistan, both by independently engaging in military operations against the Taliban/AQ, and by providing military support to the conflict between Afghanistan and the Taliban/AQ.  If true, they suggest that any declaration of the end of U.S. participation in the armed conflict in Afghanistan is premature.

Even assuming that the United States’ future military engagement in Afghanistan is limited to providing assistance to the Afghan government, what does international law offer to assess whether these actions will mean that the U.S. remains a party to the Afghan government’s conflict with Taliban/al Qaeda forces?

I am assuming for the purpose of this blog post that a non-international armed conflict (NIAC) will persist in Afghanistan regardless of a U.S. presence. In other words, that as a factual matter the Afghan government will remain in a NIAC with the Taliban/al Qaeda for the foreseeable future. Moreover, I do not here attempt to resolve the ongoing debate on how to classify the last several years of U.S. hostilities against the Taliban, al Qaeda and associated forces for IHL purposes, i.e. whether there is (i) one transnational NIAC against the Taliban, al Qaeda and associated forces, (ii) one NIAC against the Taliban in Afghanistan, and a separate transnational NIAC against al Qaeda and associated forces, wherever they may be, or (iii) several distinct NIACs against the Taliban, al Qaeda, and forces in Afghanistan, Yemen, Somalia, and, more recently, in Iraq and Syria.

International law is not well developed on the question of when a state becomes, or ceases to be, a party to an ongoing armed conflict.  Nevertheless, two approaches may assist in determining, from the facts, whether the U.S. continues to be a party to the NIAC in Afghanistan for the purposes of applying IHL: (i) the “support-based approach” recently proposed by International Committee of the Red Cross (ICRC) Legal Adviser Tristan Ferraro; and (ii) the concept of “co-belligerency” under the international law of neutrality.

“Support-based approach”

Ferraro developed a “support-based approach” to determine if a state is a party to a pre-existing NIAC. The threshold requirements of organization and intensity of hostilities for the existence of a NIAC therefore are presumed to be satisfied by the conduct of one or more other states and non-state armed group(s).  Published in the International Review of the Red Cross, Ferraro contended that this approach is “consistent with IHL logic and in line with the imperative” to distinguish combatants and civilians.

According to the support-based approach, a state would be a party to a pre-existing NIAC, and therefore be bound by IHL, when the following four conditions are met:

i. There is a pre-existing NIAC ongoing in the territory in which the country’s forces intervene;
ii. The intervening country’s forces undertake actions related to the conduct of hostilities in the context of the pre-existing NIAC;
iii. The intervening country’s forces’ military operations are carried out in support of a party to the pre-existing NIAC;
iv. The intervening country’s actions are undertaken according to an official decision to support a party involved in the pre-existing NIAC.

The first and last criteria are largely self-explanatory. Under the second criterion, Ferraro explains that “actions related to the conduct of hostilities” would have to go beyond a general contribution to the war effort and have a “direct impact” on the opposing party’s ability to conduct hostilities. Military operations that directly result in harm to the opposing party would qualify, as would actions that affect the enemy “only in conjunction with other acts undertaken by the supported party.” Ferraro proposes that actions such as transporting armed forces of the supported party to the front line, or providing planes for refueling of jetfighters, would satisfy this requirement. These acts would need to be recurrent over a significant period of time, although a single action entailing a “fundamental role” in the supported country’s capacity to carry out military operations would constitute actions related to the conduct of hostilities.

The third criterion requires that the intervening country’s actions be carried out in support of a party to the pre-existing NIAC. For instance, signing an agreement designed to improve cooperation between the two countries would suggest the existence of support. What is important is that the intervening country is not acting solely for its own interest or benefit.

If ongoing U.S. activities in Afghanistan consist of counterterrorism operations against al Qaeda and other groups to protect U.S. interests, protection of U.S. forces, and targeting of Taliban members who directly threaten the U.S. and coalition forces or provide direct support to al Qaeda, then the situation could constitute a free-standing armed conflict between the United States and these groups, but it will not necessarily satisfy the “support-based approach.” On the other hand, the more direct support the U.S. provides for the Afghan government’s hostilities with the Taliban/al Qaeda, the more likely the U.S. is to be considered a supporting party to that conflict and the more difficult it will be, according to the support-based approach, to assert an end to the U.S.’s participation in armed conflict in Afghanistan in 2015.  In either situation, IHL would continue to govern U.S. targeting and detention operations.

Nevertheless, if the U.S. implements its original plans to gradually withdraw from Afghanistan and maintain only an advisory role, the facts may reveal that, in 2015 or later, the U.S. will no longer be a party to the armed conflict between Afghanistan and insurgent forces.

Co-belligerency under the international law of neutrality

The concept of “co-belligerency” is found under the international law of neutrality, which regulates relations between states that are participating in an international armed conflict (IAC) (belligerent states) and those that are not (neutral states). A previously neutral state becomes a belligerent under the law of neutrality by (1) declaring war; (2) participating in hostilities to a significant extent; or (3) through systematic or substantial violations of its duties of impartiality and non-participation. Such violations can consist of supplying warships, arms, ammunition, military provisions or other war materials to a belligerent, engaging one’s own military forces, supplying military advisors to a party to the armed conflict, or providing or transmitting military intelligence, among other acts.

To illustrate, a 2004 Memo of the U.S. Office of Legal Counsel written by then-Assistant Attorney General Jack Goldsmith explored the type of participation required for a country to qualify as a belligerent or co-belligerent in occupied Iraq:

mere participation in any aspect of the occupation itself will not always suffice to constitute co-belligerency, especially when a State’s specific contribution has no direct nexus with belligerent or hostile activities. For instance, if a State merely assists the Coalition in fulfilling the requirement under article 50(1) of GC to “facilitate the proper working of all institutions devoted to the care and education of children,” it would not be a belligerent. But a State that sends military forces to assist in rounding up Baathist remnants and imposing general security in Iraq, and especially one that participates in hostile activities in Iraq, will engage in conduct properly characterized as belligerent. In sum, the determination whether a State is a “co-belligerent” by virtue of its participation in the occupation of Iraq turns on whether the participation is closely related to ‘hostilities.’ (emphasis added)

On what renders a belligerent a co-belligerent with other states, author Morris Greenspan has proposed that a co-belligerent is a “fully fledged belligerent fighting in association with one or more belligerent powers.” According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, “Co-belligerency is a concept that applies to international armed conflicts and entails a sovereign State becoming a party to a conflict, either through formal or informal processes. A treaty of alliance may be concluded as a formal process, while an informal process could involve providing assistance to or establishing a common cause with belligerent forces.” In a 2010 article, Tess Bridgeman observed, “Every time a state cooperates militarily with the United States, for example by detaining or transferring a suspected al Qaeda member, that state arguably becomes a co-belligerent of the United States in the conflict.”

The law of neutrality predates the UN Charter and was designed for international armed conflicts, and it would be a mistake not to note that the transposition of these rules of neutrality to modern NIACs and nonstate actors remains a point of great controversy among international legal experts.

That said, if the concept of “co-belligerency” is to serve as guidance for NIACs, acts such as significant participation in hostilities or the systematic or substantial supply of war materials, military troops, or military intelligence, in association, cooperation, or common cause with Afghanistan, would similarly render the U.S. a party to the conflict.

Detention and targeting under IHL

Despite President Obama’s declaration that the U.S. war in Afghanistan is coming to an end, at present the U.S. likely remains a party to an armed conflict in Afghanistan. If the U.S. continues to be a party to the conflict in Afghanistan – either as a result of its own affirmative engagement with the Taliban/AQ to protect U.S. forces and interests, or as a result of its support to Afghanistan — then IHL will continue to govern any targeting and detention activities that it carries out. As a caveat, it is important to note that some authorities such as the UN Human Rights Committee (in its recent General Comment) maintain that a void exists in IHL’s regulation of detention authority in NIAC, and that international human rights law fills that void (see posts by Shaheed Fatima and by Jonathan Horowitz). On this view, whether the US is a party to a NIAC may not affect the applicability of human rights constraints. Nevertheless, there are a host of other implications, including for targeting and detention activities, as Marty Lederman details in his post.