Over at Danger Room, Spencer Ackerman blogsthat Defense Secretary Panetta today admitted that the United States isfighting a war in Pakistan. As Ackerman notes, this is hardly revelatory—by 2010, I was arguing that U.S. use of force in Northwest Pakistan rose to thelevel of an armed conflict, at least against Tehrik-e-Taliban Pakistan.
Ackerman states this, however:
In case you’re wondering, there aren’t many legal implications or obligations prompted by Panetta’s admission. The 2001 Authorization to Use Military Force, the legal wellspring of the war on terrorism, clearly authorizes attacking the perpetrator organization of 9/11 unbounded by geographic limits. Besides that, the short document is vague enough to fly a Predator through. There is little upside and much risk for any politician arguing it’s time to end the 9/11 Era. To paraphrase Oliver Wendell Holmes, the life of the war has not been law; it has been politics.
His butchering Holmes aside, Ackerman is correct—but not for the reasons he thinks. The fact is, the existence of an armed conflict, irrespective of the AUMF, does have legal implications for the United States. More importantly, whether an armed conflict exists is a question of fact determined by the intensity of hostilities and the degree to which the parties are organized. If the conflagration in question exceeds this so-called Tadic threshold, then an armed conflict exists. And, if an armed conflict exists, then international humanitarian law—otherwise known as the law of armed conflict or the law of war—is triggered, giving rise to very particular legal implications and obligations. Noticeably absent from this analysis is whether a state has declared itself to be at war.
More importantly, Ackerman’s characterization of the AUMF as being territorially boundless is at least controversial. The Bush and Obama administrations have certainly treated the AUMF as such but they’re practice is hardly the final word. IHL clearly recognizes territorial bounds to armed conflict. In inter-state conflict, the geographic limits are defined by the law of neutrality. In intra-state armed conflict, the geographic scope of the armed conflict is limited to the state(s) in which, under Tadic, the armed conflict exists. Thus, an armed conflict in Pakistan is limited to Pakistan, meaning that a member of the TTP—one party to the armed conflict in Pakistan—who happens to be walking around Iran, say, would not be subject to use of force in the same way he would if he were walking around South Waziristan.