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command of ‘acts or operations amounting to direct participation in hostilities’. Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’. - The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities." | command of ‘acts or operations amounting to direct participation in hostilities’. Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’. - The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities." | ||
Given the far-reaching consequences associated with the loss of (civilian) immunity from military attack, the requirements to convert a group of terrorist criminals into a party to a conflict governed by IHL should be strict. Thus, the respective group’s features ought to resemble those of a state as the paradigmatic party to a conflict. | |||
The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner, | The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner, | ||
and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’. | and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’. | ||
Admittedly, one may apply with certain flexibility the classical criteria that qualifies an organised armed group in | |||
may apply with certain flexibility the classical criteria that qualifies an organised armed group in | |||
situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial | situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial | ||
control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible | control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible | ||
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part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria | part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria | ||
of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted | of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted | ||
military operations’. | military operations’. | ||
While, with the attacks of 11 September 2001, Al Qaeda has shown | |||
this organisational structure and its capacity to pose a military threat, and it has therefore rightly | this organisational structure and its capacity to pose a military threat, and it has therefore rightly | ||
been regarded as an organised armed group (like the military branches of the Hezbollah and the | been regarded as an organised armed group (like the military branches of the Hezbollah and the | ||
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which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction | which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction | ||
but not under his control.69 He did not, like the commander of an organisation within the | but not under his control.69 He did not, like the commander of an organisation within the | ||
meaning of IHL, dispose of direct authority on subordinated individuals. | meaning of IHL, dispose of direct authority on subordinated individuals. | ||
While, admittedly, the traditional criterion of some | |||
form of territorial control, notwithstanding its recognition in Additional Protocol II, has lost importance in light of the new ‘asymmetric’ and highly dynamic conflicts in the so-called | |||
‘new wars’, it still serves as a useful indicator61 for the existence of an ‘organisational policy’. Be that as it may, from the above it follows that what is clearly required in terms of internal | |||
organisation is a centralised military command and a chain of command from top to bottom. These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda. Al Qaeda lacks the required hierarchic, centralised command structure; as far as is known, it is a global interconnected network of a decentralised character, operating on different continents and in different countries by way of loosely interconnected cells. | |||
There is no headquarters and command structure. | |||
While it is beyond dispute that an armed conflict between the Karzai government and the Taliban | While it is beyond dispute that an armed conflict between the Karzai government and the Taliban | ||
takes place in Afghanistan, | takes place in Afghanistan, the international or non-international nature of this conflict is less | ||
clear. One may consider the NATO-led International Security Assistance | clear. One may consider the NATO-led International Security Assistance Force as an extension of the Karzai government and thus as a party on the government side in its non-international armed conflict against the Taliban; or one may argue that the alliance is an actor which internationalises | ||
of the Karzai government and thus as a party on the government side in its non-international | the conflict. Be that as it may, what is of relevance for the spillover argument is that the Taliban, or at least a part of it, has been an ally of Al Qaeda. As may be recalled, the NATO war against the Taliban government in Afghanistan, authorised by the UN Security | ||
Council after September 11,76 was waged because the then Taliban government offered Al Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring | |||
armed conflict against the Taliban; | |||
the conflict. | |||
that the Taliban, or at least a part of it, has been an ally of Al Qaeda. | |||
NATO war against the Taliban government in Afghanistan, authorised by the UN Security | |||
Council after September 11,76 was waged because the then Taliban government offered Al | |||
Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring | |||
state responsibility. Thus, at that time, one could have plausibly argued that the war | state responsibility. Thus, at that time, one could have plausibly argued that the war | ||
against Afghanistan was in fact a war against the Taliban, as the then Afghan government, | against Afghanistan was in fact a war against the Taliban, as the then Afghan government, | ||
and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al | and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al Qaeda existed. Yet, this situation changed with the fall of the Taliban government and the | ||
Qaeda existed. | retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. At the current | ||
retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. | |||
state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at | state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at | ||
best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational | best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational | ||
armed | armed conflict (although Pakistan itself does not engage, by and large, in armed operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement | ||
operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement | operation’). | ||
operation’). | |||
As for the involvement of the US, one would have to argue, with a view to an armed conflict | As for the involvement of the US, one would have to argue, with a view to an armed conflict between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, ‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in Afghanistan to Pakistan, fighting the same parties there.81 Yet, this would misread the spillover | ||
between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, | |||
‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in | |||
Afghanistan to Pakistan, fighting the same parties there.81 Yet, this would misread the spillover | |||
argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the | argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the | ||
Tadić criteria, | Tadić criteria, may entail ‘spillover effects’ such as those caused by the retreat of one of the | ||
parties to the conflict into the territory of a neighbouring state,83 the extraterritorial reach of | parties to the conflict into the territory of a neighbouring state,83 the extraterritorial reach of such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot | ||
such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot | |||
exist independently.84 In this case, the location where the killing took place (Abbottabad) is | exist independently.84 In this case, the location where the killing took place (Abbottabad) is | ||
not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the | not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the Afghan border), but also outside the actual Pakistan battle zone. | ||
Afghan border), but also outside the actual Pakistan battle zone. | |||
Thus, we are, in fact, not concerned | |||
with a simple extension of the Afghan conflict involving the Taliban into neighbouring | with a simple extension of the Afghan conflict involving the Taliban into neighbouring | ||
Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial | Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial | ||
link whatsoever. | link whatsoever. | ||
involving all states in which terrorists reside without a formal or substantive armed conflict | |||
between these host states and the state waging this war on terror, namely the US. Our whole | Following this view means proclaiming a worldwide ‘war on terror’87 | ||
involving all states in which terrorists reside without a formal or substantive armed conflict between these host states and the state waging this war on terror, namely the US. Our whole | |||
Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74) | |||
In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in | |||
Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74); similarly | |||
stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine | stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine | ||
Fair and Seth G Jones, ‘Pakistan’s War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the | Fair and Seth G Jones, ‘Pakistan’s War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the | ||
US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed | US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed | ||
Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff. | Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff. | ||
84 In this vein, denying an armed conflict between a state and an international terror network because of the | 84 In this vein, denying an armed conflict between a state and an international terror network because of the | ||
impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an | impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an | ||
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TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram% | TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram% | ||
3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster. | 3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster. | ||
planet would thus become a battlefield without bounds, and the classic understanding of an | The whole planet would thus become a battlefield without bounds, and the classic understanding of an | ||
armed conflict linked to state territory and involving a specific military confrontation would | armed conflict linked to state territory and involving a specific military confrontation would | ||
lose all its restraining and humanising force. | lose all its restraining and humanising force. | ||
2.4 COMBATANT AND CIVILIAN STATUS | 2.4 COMBATANT AND CIVILIAN STATUS | ||
Let us, for the sake of argument, assume that there exists an armed conflict between the US and | Let us, for the sake of argument, assume that there exists an armed conflict between the US and | ||
Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the | Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the | ||
basic assumption that only individuals holding the status of combatants can, under certain circumstances, | basic assumption that only individuals holding the status of combatants can, under certain circumstances, | ||
lawfully be killed during an armed conflict. While this status does not exist formally | lawfully be killed during an armed conflict. While this status does not exist formally in a non-international armed conflict,89 there can be no doubt that civilians do take part in hostilities | ||
in a non-international armed conflict,89 there can be no doubt that civilians do take part in hostilities | |||
in such conflicts and that they then are – for all practical reasons, notwithstanding the rather | in such conflicts and that they then are – for all practical reasons, notwithstanding the rather | ||
terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto) | terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto) | ||
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* [http://www.thenation.com/article/160447/osamas-assassins. Scahill, Jeremy (2011) ‘Osama’s Assassins’, The Nation, New York, 4 May] | * [http://www.thenation.com/article/160447/osamas-assassins. Scahill, Jeremy (2011) ‘Osama’s Assassins’, The Nation, New York, 4 May] | ||
*[http://www.newyorker.com/ Schmidle, Nicholas (2011) Getting Bin Laden – What Happened That Night in Abbottabad, The New Yorker 8 August]. | *[http://www.newyorker.com/ Schmidle, Nicholas (2011) Getting Bin Laden – What Happened That Night in Abbottabad, The New Yorker 8 August]. | ||
*Wieczorek,Judith Unrechtmäßige Kombattanten und humanitäres | |||
Völkerrecht (Duncker & Humblot 2005) | |||
*Zimmermann, Andreas (2008) ‘Article 8’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International | |||
Criminal Court (Beck/Hart) | |||
*Werle, Gerhard (2007) ‘Individual Criminal Responsibility in | |||
Article 25 ICC Statute’ 5 Journal of International Criminal Justice | |||
*Guénaël Mettraux, International Crimes and | |||
the Ad Hoc Tribunals (Oxford University Press 2005) 36ff | |||
*Herfried Münkler, The New Wars (Polity 2004). | |||
*Claus Kreß, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement. Some | |||
Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden Journal of International Law 855, 862) | |||
*Jordan J Paust, ‘Self-Defence Targetings of Non-State Actors and Permissibility of US Use of Drones in | |||
Pakistan’ (2009–10) 19 Journal of Transnational Law & Policy 237, 260 (‘some non-state actors, such as al | |||
Qaeda, do not meet the test for insurgent status’); Lubell (n 55) 118 (‘As for Al-Qaeda it is hard to conclude | |||
that it currently possesses the characteristics of a party to a conflict’). Dissenting, however, see Solis, The Law | |||
of Armed Conflict (n 7) 205, for whom Al Qaeda – without further arguments – constitutes an organised | |||
armed group. | |||
65 See statement of Alain Chouet, former head of the French secret service DGSE (‘But which organisation are you | |||
talking about?’), quoted by Nadia Bletry, Marie Verdier and Olivier Tallès, ‘La mort de ben Laden ne met pas | |||
fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/ | |||
2012] | |||
Christian Schaller, ‘Gezielte Tötungen und der Einsatz | |||
von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht- | |||
Informationsschriften 91, 95. | |||
Rudolf and Schaller (n 25) 16 (identifying a non-international armed conflict | |||
throughout the entire Pakistan territory independent of any spillover effect from the Afghan conflict). | |||
80 E-mail of the Pakistan Permanent Mission to the international organisations in Geneva to the authors, 31 May | |||
2011. |