In an op-ed in the Guardian last week, I argued that the United States appears to have become militarily directly involved in fighting a domestic insurgency in Yemen as an ally of the Yemeni government (a classic non-international armed conflict).

I accept that the United States has long been involved in a non-international armed conflict (NIAC) with al-Qaeda and associated forces, including al-Qaeda of the Arabian Peninsula (AQAP) in Yemen (sometimes termed a “global NIAC”). And the United States has for many years supplied extraordinary levels of military equipment, training, and financial resources to Yemen to address its domestic insurgency.

However, the direct involvement of US forces in combating the Yemen insurgency (a “classic NIAC”) would open up a materially different front. Indeed, as Daniel Klaidman’s book explains (pp. 252-56), this was the very line that President Obama and John Brennan apparently did not want to cross in 2011.

Of course, close observers will note that a sound basis already exists for the conclusion that the US is a party to Yemen’s internal armed conflict with AQAP (Bobby Chesney, Michael Lewis, and Deborah Pearlstein have made similar points). Indeed, if one only applied the administration’s own standard of  “associated forces” in a NIAC to the US relationship with Yemen, it is difficult to conclude otherwise (the US would be a “co-belligerent” of Yemen).

The more direct military engagements, which I identify in the op-ed, raise distinct issues for domestic and international law. Those legal implications present both opportunities and constraints for US policymakers. Indeed, it may provide the United States an important opportunity to pivot as it winds down its operations in Afghanistan and reaches a tipping point in ending the conflict with al-Qaeda central. [Update: In response to feedback from a reader, I should add that I am certainly not urging the US involvement in Yemen’s internal armed conflict. Far, far from it. The following post will simply outline the legal and policy implications in both directions: analysis of domestic and international legal issues concerning such operations, and analysis of the policy opportunities and constraints that flow from those legal implications.]

I will discuss and detail some of the legal and policy implications in a following post.

In the meantime, here is a short extract from the op-ed detailing some of the military actions that gives rise to this discussion:

According to [Human Rights Watch’s] investigators on the ground, “some if not many of those killed by the United States outside AQAP’s core membership may have been fighters in the domestic insurgency against the Yemeni government.” In one of six cases specifically reviewed, the President of the Yemeni think tank, Abaad Studies and Research Center, states that a lieutenant colonel in the Yemeni military, the target of a lethal US strike in November 2012, was killed “for working not in favor of extremist groups but against the current regime.” He was allegedly killed, in other words, for his role in Yemen’s civil war; not because he was a threat to American national security.  The report also references the New York Times story that some US strikes apparently killed militants wearing suicide vests as they were preparing to attack Yemeni military forces. The report also covers US involvement alongside the Yemeni army in large-scale counterinsurgency operations. Human Rights Watch alleges, for example, that a “combination of Yemeni troops, pro-government militias, and US and allegedly Saudi airstrikes routed” AQAP insurgents from the Abyan province in June 2012. The report suggests similar operations occurred in the central city of Radaa that same year.

These allegations are consistent with other recent accounts. Just last week the United Nations released a major report on drones which stated, “In 2012, United States remotely piloted aircraft and other air strikes intensified as the United States supported actions by Yemeni ground forces to dislodge militants from their positions in the south of the country.” And, in August 2013, a highly regarded source that tracks US strikes in Yemen, the Long War Journal, reported on a “trend” since spring 2012 whereby the US has targeted “not only senior AQAP operatives who pose a direct threat to the US, but also low-level fighters and local commanders who are battling the Yemeni government,” contrary, as the Journal notes, to US officials’ claims that “drones are targeting only those AQAP leaders and operatives who pose a direct threat to the US homeland, and not those fighting AQAP’s local insurgency against the Yemeni government.”