Exploring the future of America's "Long War" on terror

Today, as part of our ongoing IHL & Contemporary Challenges series, we're publishing the first of four articles examining some of the thorny issues surrounding the future of US military operations against al Qaeda and associated forces. In this introductory piece, the ICRC's Deputy Legal Advisor in Washington DC, Gary Brown, explores the international legal implications of the 2001 Authorization for the Use of Military Force (AUMF) – a topic that was recently debated at an ICRC-ASIL co-sponsored event for lawmakers on Capitol Hill.

Originally passed just days after 9/11, the AUMF continues to serve as the domestic basis for US military operations against al Qaeda and associated forces. The AUMF provides the US president with the authority “to use all necessary and appropriate force” against those responsible for the attacks of September 11, 2001. US officials consider the AUMF global in scope, empowering the president to conduct military operations not only on the hot battlefield of Afghanistan but also in other places al Qaeda or associated forces may be located.

As the US winds down combat operations in Afghanistan, there has been debate about whether to revise or repeal the 13-year-old AUMF. As a national law, it's primarily a domestic issue, but it also has potentially profound implications on international humanitarian law (IHL or the Law of Armed Conflict) because of its subject matter.  

In the coming few weeks, we’ll publish pieces from two respected US national security scholars, Bobby Chesney and Jennifer Daskal, on their different views of the best way forward to both protect national security and ensure compliance with IHL.

They'll examine questions like: What powers should or should not be granted to the US president to effectively counter terrorism? With US combat operations in Afghanistan winding down in 2014, can the US still be considered as engaged in an armed conflict with al Qaeda and associated forces? How should that affect the application of the 2001 AUMF, and what is the relationship between IHL and such domestic wartime authorities? In a fourth instalment, the ICRC's public and congressional affairs officer who covers Afghanistan, Trevor Keck, will tie the different pieces of the debate together in his wrap-up.

From the ICRC's perspective here in Washington, there is more than one way to deal with the situation. But, whatever path forward is chosen will have to address at least the following three issues:  the classification of the US conflict or conflicts with al Qaeda and associated forces, how the hostilities will ultimately end, and the status of current and future detainees. Some detail on these is set out below.

1. Conflict classification. Under IHL, armed conflicts are classified as either an international armed conflict (IAC), which opposes two States, or a non-international armed conflict (NIAC), which takes place between governmental forces and armed groups. The current conflict in Afghanistan qualifies as a NIAC because there is a sufficient level of violence and organization of the armed groups fighting against international and Afghan forces to merit classification as a NIAC. 

Outside Afghanistan, the US has long asserted the existence of a transnational non-international armed conflict that supports its use of lethal force against threats globally. Critics say human rights law or a law enforcement paradigm should apply to many US counterterrorism operations outside Afghanistan. The ICRC disagrees with the notion of a transnational NIAC, believing instead that IHL is geographically limited in a NIAC. In other words, IHL may govern US operations in contexts outside Afghanistan, but only in limited circumstances, in particular if a NIAC exists in that country and if the US is involved as a co-belligerent. Going forward, the debate over whether or not to grant the president any new wartime authorities must be informed by whether or not the US is actually engaged in an armed conflict and, if so, the scope of that conflict – matters governed under IHL by objective reference to international law.

2.  Termination of hostilities. A related concern is when a situation of armed conflict ends. The relevant criteria for the end of a NIAC are either that the armed group falls below the required level of organization or when hostilities fall below the required intensity level with little risk of resuming. The US theory of transnational NIAC, with its recognition of low volume, low frequency, geographically dispersed violence as armed conflict, might not provide an effective mechanism to determine the end of hostilities under the law. And, if a war can't end, but rather slowly spirals into an uneasy status quo, it might be worth considering whether it was ever a war in the first place.

3.  Continuing detention. During an IAC, prisoners of war must be released and repatriated or resettled upon the cessation of active hostilities. During a NIAC, persons deprived of their liberty in relation to the armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist. If the AUMF is repealed, it could be seen as a US statement that hostilities have ended, and signal the need to release detainees, unless they have been charged with or convicted of a crime.  The status of current and future detainees is a difficult and critical issue with which the US must grapple.

The ICRC takes a strategic view of IHL, recognizing that law develops as nations act and interact over the long march of time. The importance of issues surrounding the AUMF is elevated by the dominant position the US holds in international military affairs, making US leadership in IHL particularly vital. 

As Bill Lietzau, former Deputy Secretary of Defense for Detainee Affairs, said in a recent op-ed in the Wall Street Journal: “A country is either at war or it is not, and radically different legal paradigms attend each status.” The classification of armed conflicts, and the termination of them, is of critical interest to IHL. In what promises to be a fascinating exchange, we’ll hear what our experts think about the legal issues surrounding what is sometimes called the “Long War.”

Watch this space.