IHL must be considered in debate over future of AUMF

Copyright: Reuters

Copyright: Reuters

By Trevor Keck

ICRC Public and Congressional Affairs Officer

A discussion over the future of the 2001 AUMF, and the relationship between US wartime authorities and international humanitarian law (IHL), couldn’t be timelier. The Obama Administration is seeking to wind down combat operations in Afghanistan, but continues to remind the broader public that the US armed conflict with al-Qaeda and associated forces may continue for some time.

A campaign of fresh U.S. drone strikes in Yemen should only reinforce that point. Meanwhile, US courts continue to press the Executive Branch for clarity on the hard legal questions associated with US counterterrorism operations that straddle the blurry line between combat and law enforcement.

With this as context, I would like to thank Gary Brown, Bobby Chesney and Jennifer Daskal for their excellent contributions to this important and timely discussion. To start, I wish to highlight one point that all the authors agreed upon, but is often not emphasized enough in discussions on the AUMF. As Bobby reminds us in his post, the application of IHL to US military operations is linked to US participation in an armed conflict, not the existence of an AUMF. Given that the US constitution grants the Congress – not the President – the power to declare war, the 2001 AUMF is important in settling constitutional questions related to US combat operations against al-Qaeda. 

In enacting the 2001 AUMF, Congress provided the President with authority to “use all necessary and appropriate force” against those responsible for the September 11 attacks. Executive branch powers to detain and target consistent with IHL flowed from the armed conflict that the Congress permitted the President to engage in. 

But, as Jennifer highlights in her post in this series, the Supreme Court has affirmed that the AUMF should be interpreted in light of IHL. Since IHL only applies during armed conflict, it is logical that the legality of US reliance on IHL in counterterrorism operations hinges on US participation in an armed conflict. In other words, the 2001 AUMF only grants the US president wartime detention and targeting authorities provided US forces are engaged in an armed conflict linked to the September 11 attacks. This will have significant implications for Afghan detainees in US custody given that the US is soon due to cease combat operations in Afghanistan.

But, of course, few agree on the precise scope or end point of the US armed conflict or armed conflicts with al-Qaeda and associated forces. Some members of Congress and human rights groups argue that the US armed conflict with al-Qaeda and associated forces ends with the cessation of US combat operations in Afghanistan. Meanwhile, consistent with the US theory of a transnational non-international armed conflict (NIAC), US officials assert that the nation's armed conflict with al-Qaeda and associated forces could go on for some time. Last May, senior US defence officials told Congress that it could last 10 to 20 years, and US officials are reluctant to identify how exactly it will terminate. 

Perhaps, as Gary highlights in his post on the topic, part of the problem may be simply that the US theory of a transnational NIAC that is low volume, low frequency and geographically dispersed is fundamentally problematic. As constructed, the US theory may not provide a clear endpoint.

This brings us to the question of how US counterterrorism operations may be evolving as the US winds down combat operations in Afghanistan. Bobby and Jennifer both make some insightful points on this issue. First, it is worth recalling President Obama`s comments on the AUMF during his May 2013 counterterrorism speech. During this speech, President Obama noted:

“The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”

In this speech, President Obama implies that US counterterrorism operations will not end with the cessation of combat operations in Afghanistan. But, the President suggests that such operations will become more limited and focused as the US closes the chapter on the Afghan war. Further, the President agrees with his critics that the 2001 AUMF is no longer fit for purpose and should ultimately be repealed.

So what does this mean for US counter terrorism operations going forward, and what laws would guide such operations if and when the AUMF is repealed? Bobby suggests that US counterterrorism operations may continue in places like Yemen and Pakistan for some time in order to address what the US perceives as “continuing” and “imminent threats” to US security. If the AUMF were repealed, Bobby notes that such US operations could rest on the President`s Article II authorities under the constitution, and US notions of self-defense under international law. Bobby further suggests that the “facts on the ground” in Yemen and Pakistan may support the US claim of an armed conflict to which the US is a party or a co-belligerent, thus justifying continued US reliance on IHL during such operations. In this, Bobby submits that President Obama may lawfully continue the current nature and pace of US combat operations in Yemen or Pakistan even in the face of AUMF repeal. However, many critics of the US Administration that reject the US notion of a transnational armed conflict would likely find these arguments problematic, perhaps even more so after US combat forces leave Afghanistan. 

The most significant implication of AUMF repeal, Bobby suggests, would be the “political and diplomatic ramifications” that would make it harder to use armed force. In this statement, Bobby raises a very interesting and important point—while the existence of an armed conflict is a “fact-based” question, determined most significantly by levels of violence in a NIAC, political statements or actions can also be informative. This is because of the subjective threshold for determining the existence of a NIAC. As a result, the US Administration probably treads carefully in the debate over the future of the 2001 AUMF because repeal could be viewed as a US statement that its armed conflict with al-Qaeda has ended. In addition to these political ramifications, Jennifer correctly highlights that repealing the AUMF would require the US to harden the self-imposed policy constraints on counterterrorism operations.

Jennifer`s suggestion that the US is moving towards a hybrid of IHL and law enforcement to govern counterterrorism operations makes sense within the context of recent capture operations, such as Ahmed Wasame in 2011 and Abu Anas al-Libi last fall. The more targeted approach would be consistent with President Obama`s 2013 counterterrorism speech, where he outlined US policy constraints on counterterrorism operations that mirror law enforcement standards. But, of course, some might question whether this hybrid model applies to US operations in Yemen given a series of recent US drone strikes characterized as massive and unprecedented.” While President Obama`s policy standards may broadly guide US counterterrorism policy, it is unclear if these standards will constrain US operations in Yemen. Perhaps then, US counterterrorism operations will look more like “cherry-picking” going forward, with the Executive Branch picking and choosing between the various frameworks until the AUMF is revised or repealed.

To wrap up, let me again thank all of our contributors for their excellent points. Gary highlights some of the most critical issues of the AUMF debate from the ICRC`s perspective. I will conclude in reemphasizing what I see is the most important takeaway from this debate. The AUMF is not, in and of itself, decisive on the question of whether IHL applies to US counterterrorism operations. IHL and the permissive wartime authorities to target and detain exist only during an armed conflict. Such authorities will cease to exist when the US is no longer engaged in an armed conflict with al-Qaeda and associated forces, which is a contentious question without a simple, concrete answer. But, as policy and lawmakers consider the future of the 2001 AUMF, they should consider whether and where the US is engaged in armed conflict beyond Afghanistan, and bring domestic law and policy in line with their answers to these questions.

Trevor Keck serves as Public and Congressional Affairs Officer with the Washington Delegation of the International Committee of the Red Cross (ICRC). He follows ICRC operations in the Middle East and South Asia, and humanitarian issues in those regions. Prior to joining the ICRC in May 2013, he was an Afghanistan researcher for Center for Civilians in Conflict, an organization that seeks to make warring parties more responsible to civilians. Based in Kabul, he conducted research on civilian protection issues, conducted interviews with victims of conflict across Afghanistan, and authored two reports as well as op-eds based on his original research. Trevor holds a Masters in Law and Diplomacy from the Fletcher School of Law and Diplomacy at Tufts University, and has published on international humanitarian law in the Military Law Review, the official publication of the US Judge Advocate General Corps.