Testifying to the House Armed Services Committee this morning on the state of the Special Operations Command, Admiral William McRaven said that now that core al Qaeda has been largely defeated and the group has “metastasized” into lots of smaller regional splinter groups, the fight against al Qaeda is a fight against “an ideology.”
That would make the war against al Qaeda more like the Cold War than like an actual armed conflict. Indeed, international law nowhere recognizes an actual armed conflict against an ideology, as opposed to a clearly-identifiable group with a central command structure.
The International Committee for the Red Cross (ICRC) explains that for a non-international armed conflict, or NIAC, to exist, thereby triggering the applicability of the laws of war, “the parties involved must demonstrate a certain level of organization,” and “the violence must reach a certain level of intensity.” The factors determining whether the necessary level of organization exists include “the existence of a command structure and disciplinary rules and mechanisms within the armed group, the existence of headquarters, the ability to procure, transport and distribute arms, the group’s ability to plan, coordinate and carry out military operations, including troop movements and logistics, its ability to negotiate and conclude agreements such as cease-fire or peace accords, etc.”
Does al Qaeda meet these requirements anymore? Probably not.
Do its “associated forces”? Maybe some do. But the U.S. government hasn’t even identified which “associated forces” it is fighting, let alone that they are sufficiently organized, or that the level of hostilities between those forces and the United States has reached the level of intensity required to constitute a NIAC. For the U.S. government to continue to maintain the existence of a non-international armed conflict beyond Afghanistan that authorizes the use of lethal force pursuant to the laws of war, it must be able to demonstrate those minimum criteria.