A Turning Point in the Afghan War?

[Editors’ NoteThis post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.]

I thought to use the opportunity of this Monday’s Reflection to look back at two important recent posts at Just Security concerning the “end” of war in Afghanistan (by Marty Lederman and by Nathalie Weizmann), and offer a couple thoughts of my own about the prospects of ending U.S. involvement in armed conflict in that country anytime soon. I do not attempt to wrestle with larger strategic and policy questions such as whether it is a good thing for the U.S. to aim to end the Afghanistan conflicts in 2015. I hope simply to offer some thoughts on what U.S. actions and facts on the ground might point to either a continuation or an end to “armed conflict”—understood as a legal category—in Afghanistan.

1. What is at stake?

As Marty explained in his post, important legal authorities flow from the determination whether the United States is a party to an armed conflict with the Taliban/al Qaeda. As a formal legal matter, the implications include the authority to engage in status-based targeting and long-term preventive detention. It may the case that the Obama administration is heavily constraining itself—as a matter of policy—from engaging in status based targeting such that the remaining practical relevance of this distinction principally concerns the last few dozen Guantanamo detainees (Marty’s argument). However, I wouldn’t be so sure those self-constraining preferences will always remain in place. The next occupant of the White House and his or her Defense Secretary, for example, may see the world in a different way. If the United States is engaged in an armed conflict at the time, they will have vast more legal authorities at their disposal (for good or ill).

So, are we still in an armed conflict in Afghanistan—and will we be throughout 2015 and beyond?

2. The Fourth Dimension

In his post, Marty very precisely analyzes two armed conflicts that might persist in Afghanistan: the United States vs. al Qaeda (conflict number 1) and the United States vs. the Taliban (conflict number 2). Marty writes that the prospect of bringing an end to the former is far more remote than an end to the latter.

In a footnote, he also raises the prospect of a third dimension, which Nathalie addresses in detail in her post: the United States may become a party (or “co-belligerent”) to an existing armed conflict: Afghanistan vs. the Taliban/AQ (conflict number 3). That is, the United States may still be in an armed conflict due to our direct military support of Kabul in its hostilities with insurgents–even if we no longer engaged in direct kinetic operations against the Taliban (or even AQ).

A fourth dimension exists for how the United States may still remain in an armed conflict with the Taliban: United States vs. al Qaeda with the Taliban acting as a co-belligerent of AQ or lending direct support to AQ (conflict 1 plus). Just as the United States may be a party to armed conflict number 3 due to its relationship with one of the parties to the conflict, so may the Taliban be a party to conflict 1. In short, if Marty is right that the prospect of ending conflict 1 is still a ways off, we may be caught in an armed conflict with the Taliban in any case under this scenario.

In sum: the United States may remain in an armed conflict with AQ, but the Taliban may nevertheless be a co-belligerent of AQ (by lending AQ support etc.). In that case, it does not matter if the fighting directly between the Taliban and US rises to the level of an armed conflict. On the contrary, the core armed conflict would be between the United States and AQ, and there is not a separate armed-conflict threshold test for “co-belligerents” or other parties to the conflict.

It is also notable in this regard that the President stated — despite loudly trumpeted proclamations that Operation Resolute Support is a “non-combat mission” – that the United States would continue “to conduct counterterrorism operations against the remnants of al Qaeda” in Afghanistan. And an important New York Times story by Mark Mazzetti and Eric Schmitt refers to a senior administration official who “insisted that American forces would not … conduct offensive missions against the Taliban next year.” That same official nevertheless stated:

 “‘To the extent that Taliban members … provide direct support to Al Qaeda, however, we will take appropriate measures to keep Americans safe.’” (My emphasis added.)

Under international law, that may very well mean the armed conflict with the Taliban will continue (as Marty reasoned under conflict 2) if the US engages in direct hostilities against the Taliban on a intense and protracted basis. However, I am suggesting here that even if the US does not directly respond to the Taliban through that type or level of armed force, the fact of the Taliban’s direct support to AQ could mean the US is in an armed conflict with the Taliban regardless.

(For an analysis of the potential differences between US-led combat operations in Afghanistan and NATO’s Operation Resolute Support, see this important paper published by the Afghanistan Analysts Network (esp. pp. 2-3) and Kenneth Katzman, Afghanistan: Post-Taliban Governance, Congressional Research Service, December 2, 2014.)

3. Enter the PPG?

In trying to read the tea leaves on the future of U.S. hostilities in Afghanistan, one data point that should not go unnoticed: last week’s statement by a senior administration official to journalist John Knefel in the Rolling Stone (which may have been lost in the reporting on the Paris attacks and Palestinian accession to the Rome Statute). The official discussed the Presidential Policy Guidance (PPG) which, as a matter of policy, imposes heightened standards on the use of force outside so-called “areas of active hostilities.” Here’s the key quote from the senior administration official:

 “Afghanistan will continue to be considered an ‘area of active hostilities’ in 2015,” the official tells RS. “The PPG does not apply to areas of active hostilities.”

What does that mean? The term “area of active hostilities” is a creature of the Obama administration, not something you would find in an international law textbook. So it is unclear what, exactly, is meant by it. That said, it certainly would be awkward for the administration to claim that Afghanistan will remain an “area of active hostilities” for the United States but not in a state of “armed conflict.” As a legal matter, the answer would presumably turn on the threshold required for military actions to rise to the level of an “armed conflict” versus the threshold required for “active hostilities.” One is left to wonder how much daylight there is between the two.

4. What does the future hold?

Knefel’s analysis in the RS shows some of the tensions in (A) the administration’s stance on the PPG and the NYTimes’ revelations of continuing combat operations, on the one hand, and (B) the President’s statements and his administration’s setting up Operation Resolute Support as a “non-combat mission” on the other. The latter positions may be potentially understood as an effort to lay the groundwork with the public and the military for calling an end to the armed conflict at some point in the future—or at least introducing a greater mix of counterterrorism and law-enforcement actions outside the war-fighting model. If nothing else, at least time will tell. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.