More on the organisational requirement: Al-Qaida and two new articles dealing with the killing of Osama Bin Laden

About the author(s):

Rogier Bartels

Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.

Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.

This is a short follow up to my earlier post on the organisational requirement of the parties as part of the threshold test for non-international armed conflicts, and at the same time a means to mention two very interesting new articles. This time the post relates to Al-Qaida, another armed group which is reported to be active in Syria.

One of the problems in calling the fight against Al-Qaida a world-wide armed conflict that is not limited to one or more specific States but based on the fact that it concerns the same parties, is that Al-Qaida is a very diffuse organisation. It has been argued by courts and academics that it fulfills the organisational requirement, but others have also contested that it does.

Currently, two articles in the latest Israel Law Review dealing with this issue, can be accessed for free (until the end of September): “Operation Neptune’s Spear: The lawful killing of Osama Bin Laden” by Colonel David A. Wallace, a professor at the US Military Academy in West Point, and “Has ‘justice been done’? The legality of Bin Laden’s killing under international law” by Kai Ambos and Josef Alkatout, respectively professor of international criminal law and PhD candidate researching on targeted killings at Göttingen University in Germany.

The articles by Wallace and Ambos & Alkatout each address the same issues: Is Al-Qaida an organized armed group under IHL? Is there a ‘spill-over’ from the conflict in Afghanistan into Pakistan? Civilian vs combatant status of OBL; and direct participation in hostilities.

Wallace (as the title suggests) concludes that the killing of OBL was legal, whilst Ambos & Alkabout conclude that the killing could not be justified by referring to IHL as the consider that there was no armed conflict between the US and Al-Qaida because Al-Qaida (at the time of the killing of OBL) could not be seen as an “organised armed group”.

Both articles deal with a host of very interesting and relevant issues, but here I will only highlight some of the conclusions by the authors on the question whether Al-Qaida qualifies as an “organized armed group”.

Ambos & Alkatout consider that

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. (p. 348. Footnotes omitted)

Interstingly, Ambos & Alkatout refer to the strict approach taken by the ICC Judge Kaul (importantly, this is the minority view of the pre-trial chamber seized of the Kenya situation) with regards to the organisational element for the crimes against humanity (under the Rome Statute) – which in the Kenya situation were alleged to have occurred outside a situation of armed conflict. As a consequence, they also set the threshold rather high. They then list elements, similar to the ones I mentioned in my post on this matter, that would indicate whether or not a group can by considered as organized for the purposes of IHL. They conclude that

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. The obscure geographic situation in the Afghan-Pakistani border area does not allow for a precise determination as to who effectively controls this area; it is highly questionable whether Al Qaeda exercises any territorial control which comes close to the Article 1(1) of Additional Protocol II threshold. Admittedly, one 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 control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible to argue that the flexibility of new terrorist/armed groups adds to their strength and constitutes 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 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 been regarded as an organised armed group (like the military branches of the Hezbollah and the Hamas), years later – and in any case at the time when bin Laden was hunted down by the US Special Forces – Al Qaeda’s activity had slowed down; it therefore no longer posed a serious military threat, nor did it have a centralised military command structure. Worldwide attacks which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction but not under his control. He did not, like the commander of an organisation within the meaning of IHL, dispose of direct authority on subordinated individuals.  (pp 349-350. Footnotes omitted)

Wallace, on the other hand, writes:

The next and related question is whether Al Qaeda is an organised armed group under IHL. As a threshold matter, Al Qaeda has a command and control structure, which includes a majlis al shura (or consultation council). The council considers, among other things, operations and the issuing of fatwahs. Al Qaeda has a military committee that considers and approves military matters. It is a global entity, including a number of affiliated groups, with no specific area of operation. Members of affiliated groups have often gained experience in Al Qaeda training camps or fought in Al Qaeda wars – other than in Afghanistan (Chechnya or Bosnia, for example). Al Qaeda is a global network consisting of permanent or independently operating semi-permanent cells of trained militants that have a presence in more than countries.

To achieve its political and ideological ends in a protracted and global asymmetrical armed conflict against the United States, Al Qaeda used various tactics, including bombings, hijackings, kidnappings, assassinations and suicide attacks. […]

Under the leadership of Osama bin Laden, Al Qaeda has conducted literally hundreds of attacks and killed thousands of people. By any measure, the magnitude of its attacks in terms of the loss of life, destruction of property and the suddenness of their impact are akin to the effects of a war, not of a crime. In a truly functional way (not in a theoretical or speculative manner), Al Qaeda is an organised armed group participating in an armed conflict with the United   States.

Notwithstanding its loose and decentralised network configuration, it would be incorrect to characterise Al Qaeda as a group of terrorist criminals rather than an organised armed group. Al Qaeda operates as an ‘omni-directional, non-hierarchical network for tactical purposes, but with a cohesive and centrally articulated ideology’. (pp 371-372. Footnotes omitted)

Wallace further disagrees with Ambos & Alkatout that Al-Qaida would not need the “capacity to carry out sustained and concerted military operations” as this is a criterion for the applicability of Additional Protocol II, which cannot apply to the fighting between the US and Al-Qaida, and is too strict a test. As such, he argues that

a non-international armed conflict can exist and be regulated under Article 3 common to the four 1949 Geneva Conventions. Accordingly, Al Qaeda’s armed conflict with the United States is not dispositive on the issue of whether it is an organised armed group or whether there exists an armed conflict. (p. 373)

Wallace views that, although Al-Qaida has been degraded as a result of the military action by the US, it still poses a threat to the US. He concludes that there is a non-international armed conflict between the US and Al-Qaida and that the latter is to be considered an “organised armed group”.

These are both very interesting views on the matter and excellent contributions to the existing academic debate. I have some views myself on the matter, but might deal with that more in detail at a later stage. For now, I would just like to briefly comment on the following statement by Wallace:

I believe Ambos and Alkatout were correct in their initial characterisation of Al Qaeda. I also believe that Al Qaeda has been degraded by concerted military action implementing a wide range of means and methods of warfare. In an interview on 26 January 2012, US Secretary of Defense, Leon Panetta, stated that nearly nine months after the death of bin Laden, Al Qaeda is still a real threat to the United   States. Specifically, Panetta said:

“Obviously we’re going after Al Qaeda wherever they’re at. And clearly we’re confronting Al Qaeda in Pakistan. We’re confronting the nodes of Al Qaeda in Yemen, Somalia, North Africa. And obviously whatever Al Qaeda links are involved in Afghanistan…they’re still a real threat. There’s still Al Qaeda out there. And we’ve gotta continue to put pressure on them wherever they’re at.”

In sum, the evidence overwhelmingly establishes not only that a non-international armed conflict exists between the United States and Al Qaeda, but also that Al Qaeda is an organised armed group as defined under international humanitarian law. (p. 373. Footnote omitted)

I would disagree with this conclusion as – in my view – the so-called lower threshold for application of IHL/the existence of a non-international armed conflict is not limited to the start of the conflict. As I recently argued at the Grotius Center’s Jus Post Bellum Launch conference, I do not agree with the ICTY’s Appeals Chamber when it concluded (in its 1995 decision on jurisdiction) that

[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities […], in the case of internal conflicts, [until] a peaceful settlement is achieved. (Tadic, Interlocutory Appeal, para. 70)

In my view a non-international armed conflict ends when the criteria (organization of the parties and intensity) would drop below the threshold that is required for the existence of a non-international armed conflict. If Al-Qaida – as is argued by Ambos & Alkatout – after initially fulfilling the organisational requirement, has ceased to do so, this would indicate that a non-international armed conflict between the US and Al-Qaida – if there ever was such an armed conflict – would have ceased to exist for that reason.