Thursday, June 14, 2012

Let’s Talk About War (Armed Conflict)

So, last week I briefly responded to Spencer Ackerman’s Danger Room post on Secretary of Defense Panetta’s concession that the United States is engaged in a war (armed conflict) in Pakistan. This week, Ackerman jumps on the idea of a U.S. war in Pakistan and argues, given that there have been more drone strikes in Yemen than in Pakistan this year then: “Surely, if America is at war in Pakistan, it’s at war in Yemen, too.”

That’s a persuasive a fortiori argument in the abstract, in this moment in time, with that antiquated terminology: war.

“War” is antiquated? Indeed it is. Once upon a time, before World War II, “war” as a legal state existed. But war was essentially a legal status invoked by states and, because war had been outlawed—and because it is a choice of law mechanism imposing certain responsibilities on states—it was often not invoked even when states were quite clearly at war (in a colloquial sense). In this era, states would engage in extraordinary amounts of hostilities over a prolonged period using their regular armed force and refuses to concede what was plain: they were at war. In turn, captured soldiers were denied prisoner of war status; laws respecting neutrality were ignored; civilians were denied the protections of war that the legal status of war affords them.

In the wake of World War II, the drafters of the Geneva Conventions of 1949 set about to rebuild the edifice of the laws of war in a way that they could not be avoided in such a pretextual way. Thus, the drafters chose—and the world acceded to—the notion that international humanitarian law would be invoked when an armed conflict occurs. And this idea, the occurrence of an armed conflict, would be determined objectively without reference to whether the states involved declared themselves to be at war. The drafters also differentiated between armed conflicts of an international character (those taking place between states) and armed conflicts not of an international character (those taking place between a state and a non-state actor or among non-state actors). The International Criminal Tribunal for Yugoslavia famously fleshed out these notion in its “Decisionon the Defence Motion for Interlocutory Appeal on Jurisdiction” otherwise knownas Tadic.

International armed conflicts exist whenever states resort to force against each other. But Tadic teaches us that the existence of a non-international armed conflict is determined with reference to the organization of the non-state actor and the intensity of the violence between the parties. Tadic and further ICTY determinations, as well as the authoritative commentary to the 1949 Conventions provide guidance for measuring relative organization and intensity of hostilities to determine an armed conflict’s existence. Relevant factors include geographic scope and duration of hostilities, whether military-type weaponry is used, whether the non-state actors are hierarchically organized, whether they are responsive to some sort of command, whether a governmental force (if involved) uses its regular armed forces as opposed to its police force, and more.

Importantly, Tadic also makes clear that the geographic and temporal scope of an armed conflict are not limited the immediate time and vicinity of armed clashes. Instead, if a non-international armed conflict exists, it exists throughout the state(s) in which it is occurring. And, it exists until “a peaceful settlement is achieved.”

And that brings us back to Ackerman’s quote. Despite Panetta’s statement, a real analysis of whether the United States is engaged in an armed conflict in Pakistan requires a Tadic analysis. Fortunately, such an analysis has been done and it concluded that, at least by 2010, and at least with respect to hostilities between the United States and Tehrik-e-Taliban Pakistan, the United States was indeed engaged in an armed conflict. For the sake of argument, let us assume that hostilities between the TTP and the United States are ongoing. If that’s true then, no “peaceful settlement [has been] achieved.” Thus, an armed conflict is ongoing in Pakistan.

But that does not mean an armed conflict is necessarily ongoing in Yemen. Although more drone strikes may have occurred so far this year in Yemen than in Pakistan, we would still have to conduct an independent analysis of the intensity of the hostilities between the United States and non-state actors in Yemen to determine whether an armed conflict exists. If, for example, 23 drone strikes in Yemen represent insufficiently intense hostilities between the United States and a non-state actor in Yemen, then there is no armed conflict in Yemen. And, although there have been fewer strikes in Pakistan, because there was an armed conflict in Pakistan previously and there has been no peaceful settlement, an armed conflict in Pakistan between the United States and a non-state actor persists!

This raises an ancillary point: What about the violence occurring between the state of Yemen (or Pakistan) and non-state actors in Yemen (or Pakistan) and what about the United States’s role in that violence? If that violence rises to the level of an armed conflict (and if those actors are sufficiently organized), then an armed conflict exists between the state and the non-state actors. U.S. use of force in that armed conflict constitutes an intervention in that armed conflict, and places the United States in an armed conflict. Depending on whether the United States is using force in support of or against the territorial state in question, dictates the nature of the United States’s armed conflict. For example, use of force against AQAP on Yemen’s behalf places the United States in a non-international armed conflict with AQAP so long as Yemen and AQAP are engaged in an armed conflict.

Notice that this implicates another point Ackerman made in his piece:
Katherine Zimmerman, an analyst at the American Enterprise Institute, doesn’t believe all this fighting adds up to the US being at war in Yemen, although she admits it’s “understandable” why others might hold that view. She sees the difference between the Pakistan war and the Yemen conflict as one of partnership, and intent. “It’s slightly different because of the local cooperation. The effort in FATA [Pakistan's Federally Administered Tribal Areas] are more heavily driven by Americans,” Zimmerman tells Danger Room. “In Yemen, we’re essentially acting as a stop gap until Yemenis can take full responsibility. We’ve got a very willing partner in Yemen. We’re working on making it an able partner.”
Sort of. So, Zimmerman is right that whether we are operating in concert with the local government is important. But whether the Pakistani government is actively or passively cooperating with the United States is irrelevant—at least to an analysis whether there exists an armed conflict. Zimmerman’s point might be directed to questions of jus ad bellum as opposed to jus in bello. In that case, she might be suggesting that in Pakistan the United States is relying on self-defense whereas in Yemen the United States is relying on state consent. Regardless, whether those actions—given the consent or not of the territorial state—rise to the level of an armed conflict is a wholly separate question.  

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