Opinio Juris

Any "Global War on Terrorism" is a slogan. However, the US is engaged under the AUMF in a war with "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". This is a John Doe declaration because at the time it was written the US did not know who was responsible. Today we know the attack was carried out by a special operations unit under the command of KSM and his superior officers Mohammed Atef and then Bin Laden and the Shura Council of al Qaeda. It was also approved by Mullah Omar and the Taliban, the government in control of Afghanistan. None of these forces have surrendered, signed a peace treaty, or been destroyed. They are still in the field in Afghanistan fighting NATO troops.

Now I have argued that this was an attack by the Army of Afghanistan authorized by the (unrecognized) Government of Afghanistan. That would make it a regular war just like every other war. Others claim that al Qaeda is an "organization". The problem is that the government of the time was based on tribal and religious structures that do not fit nicely into Western models of how you run either an army or a government, but made perfectly good sense to the local culture.

Before 9/11, the enemy army dispatched units to attack the embassies in Africa, the USS Cole, and to participate in the wars in Chehnyia and Kosovo. Although most of the enemy army escaped to the protection of the tribal areas of Pakistan, some units continue to be deployed to unstable areas like Somalia or conduct small covert operations. The idea of protected areas in nominal neutral nations is not new (the North Vietnamese had Cambodia and Laos, the North Koreans had China, Poncho Villa had Northern Mexico), but this is the first war in which the enemy moves units into so many distant countries.

Under domestic law, the language of the AUMF is pretty clear. One consequence of a John Doe declaration is that it was not limited to Afghanistan, the country originally responsible, and applies as much to Somalia any anywhere else. International law assumes that countries are neatly classified into enemy, neutral, and allied and that they control their borders. When the enemy invades (or simply moves in or through) the territory of a nominally neutral country, then your forces can enter. Consider Belgium in WWI, operations outside South Vietnam, Pershing's operation in Northern Mexico. So an airstrike against an identified small unit of the enemy in Somalia is not particularly unusual in historical terms, particularly when it appears to have been approved by those in control of a large part of the country (even if they are not necessarily a widely recognized government). It is a bit more regular than the occasional strike by a drone aircraft on al Qaeda across the border in Pakistan.

Thanks Tobias: You gave legal form to my layman's intuitions.

Most of the critiques of deeming the "war" on terror a war in the legal sense stem from a traditional understanding of the rules of war and how armed conflict gets defined. But this inevitably runs into difficulties as the kind of threat posed by al Qaeda and other so-called "new" terror organization do not fit the old paradigms and models. Remember Justice O'Connor's warning in her opinion in the Hamdi case: while the Court found that the laws of war allowed the indefinite detention of combatants seized on the battlefield, she warned that "if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel." The threat posed to states by international terrorism is of a nature entirely unlike the traditional state-on-state war (or even intra-state wars like civil wars and rebellions) that the laws of war developed to regulate, and thus the laws of war need to adapt to adequately account for the new type of conflict. That doesn't in and of itself justify or legitimate a targeted killing/assassination, but it certainly means that we need to think carefully about the nature of the threat and the need for responses. In the context of the current conflict, targeted killings would seem to be a proportional and measured act.

Of course back to the time of the Romans there were wars with private men. See Grotius.
Best,
Ben

“Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of the Ammonites; and [s]o may private men against Princes, but not their own, as Abraham did again[s]t the King of Babylon, and his A[ss]ociates. So may Sovereign Princes against private men, whether their own Subjects, as David against I[s]bbo[s]eth and his Party, or Strangers, as the Romans against Pirates.”(Emphasis added)Hugo Grotius, Rights of War and Peace Book I 178 (1625 (1715 translation)) (Reprint 2001 Gaunt Inc.)

I feel like an old Rodney Dangerfield joke. An advisor was telling Rodney Dangerfield that his name was his problem with getting respect.

"Rodney Dangerfield: My name? What's wrong with my name? What's in a name? Didn't William Shakespeare say "A Rose by any other name smells just as sweet?"

Advisor: Who?

Rodney Dangerfield: William Shakespeare - you know - the great playwright and poet.

Advisor: Oh. Listen. You going to listen to your friend Shakespeare or you going to listen to me?"

Don't listen to me - listen to Grotius.

Best,
Ben

Theory aside, during WWII a collection of armies in exile gathered in Britain and took part, in various degrees, in the liberation of Europe. The most prominent were the Free French under deGaulle, but the 1st Polish Brigade took part in Operation Market Garden. Since both France and Poland were occupied at the time, how can you say these were units of a national army. Yet they were recognized as such by the United Nations (as the allies called themselves).

The thing about international law is that lots of people go around making up rules that simply don't exist, and they would know that if they studied a bit of history. A larger problem, however, is that "international law" as we understand it is really white, European, Christian, colonialist law since we didn't invite anyone else to sit at the table when we made it. Certainly the Chinese found that out in the 19th Century.

There is another "international law" that our enemy follows. It ruled the lands between Indonesia and Spain for a thousand years, and is still widely followed today. It is Shari'a, and according to it the world is divided into the Dar al-Islam and the Dar al-harb, the House of Islam and the House of War. Various scholars may interpret this other ways, but those who believe as Bin Laden regard the whole of Islam to be perpetually at war with everyone else in the world. Bin Laden not only believes, but he rigorously follows the rules of his international law. We require a Declaration of War, but his law requires two Declarations of War before an attack like 9/11, and he issued two.

Of course, our law is better because it our law, and we all got together and agreed it is better and we didn't ask them because they aren't white enough to matter. So we quote Grotius and ignore 1400 years of Islamic commentary on the same subject.

After 9/11 Yale hosted panels of notable scholars to explain what had just happened. Most were neo-Marxists, so of course they explained that this was all class struggle or post-Imperialism. They had spent their entire lives teaching and writing that nothing really happens because of religion, that wars and politics are always about struggle over the means of production and economics. So not only did they know nothing about what had just happened, but they were incapable of learning or thinking about it.

Similarly, there are a large body of legal experts who look at an army of 45,000 to 60,000 light infantry gathered in Afghanistan under joint Taliban and al Qaeda command on 9/10 as "civilians" because ... [and then the go off on some legal argument about how they can't be a real army because they weren't Western enough.] The problem is that this was simply the second generation of an army organized by the same people in the same country wearing the same clothes and carrying the same weapons that defeated the Soviet army twenty years ago. I am sure that the Soviets would have been happy to learn that there was no war because their enemy were all civilians who therefore could not possibly have killed them, and blown them up, and shot them down. We have the very best scholars in international law to assure us that there were no soldiers in Afghanistan, no enemy, no war. Just a bunch of unexplained casualties.

I did not say that Islam was monolithic or even that a sizable group believed the same things as "those who believe as Bin Laden." I was only interested in the belief of the enemy. You cannot make strategy in a war without understand the motivations and objectives of those you fight. The Taliban and al Qaeda share a specific doctrine. You have to take seriously the notion that they take it seriously. Bin Laden actually expects to destroy or convert the US to Islam. That is a pretty big objective.

The IRA never expected to destroy Great Britain. No terrorist organization has ever had such plans. So experience with real terrorist groups will not be helpful in this conflict. Bin Laden used terror, but to achieve a military objective. He mistakenly assumed that after 9/11 the US would send heavy armored units to invade Afghanistan along the same narrow mountain roads that the Soviets used. Then he believed that Islam would rise up and the US army would be destroyed just as the Soviets had been defeated, and then US power would crumble just as the Soviet Union had collapsed. It would have been a longshot, but he had God on his side.

This is not real terrorism. This was a terrorist tactic that was part of a conventional overall military strategy. The 45-60 thousand soldiers in the Army that had been trained and equipped in Afghanistan were the central part of the plan. They might defeat US power. The 19 hijackers were only supposed to piss us off.

This was not a case of terrorist wanting to be regarded as soldiers. These were soldiers pretending to be terrorists for tactical cover.

Bin Laden made the classic military blunder. He put all of his effort into plans to re-fight the last war (the one against the Soviets). Now, however, "terrorism" is our last war. Whatever Bin Laden does next, assuming that he regains enough power to do something, there is no reason to believe that it will be meaningless civilian casualties. He tried that and it did not work, and now the original strategic justification has been destroyed. Killing a few thousand more Americans won't bring him any closer to achieving his objectives. Of course, that may be all that he can accomplish, but I would worry more about something we are not expecting than just more of the same. For example, if he acquired a few long range missiles, firing them at Iran (who would assume it was the US or Israel) and starting a war would be much more useful than firing them at any US forces. Now that he has no big army and country of his own, he may need to leverage someone else's.

"I did not say that Islam was monolithic"

Cf.: 'There is another "international law" that our enemy follows. It ruled the lands between Indonesia and Spain for a thousand years, and is still widely followed today. It is Shari'a, and according to it the world is divided into the Dar al-Islam and the Dar al-harb, the House of Islam and the House of War.'

HowardGilbert:

You might read the London Review of Books essay by Charles Glass, "Cyber-jihand," Vol. 28 No. 5, 9 March 2006:

"Bin Laden’s utterances, beautifully translated by James Howarth and well edited with informative footnotes by Lawrence, prove a better guide to his intentions and Weltanschauung than the same words mediated by CNN anchors and New York Times columnists. He does not appear to be deranged, as his detractors insist he is. His message is plain: leave the Muslim world alone, and it will leave you alone. Kill Muslims, and they will kill you. ‘America won’t be able to leave this ordeal unless it pulls out of the Arabian Peninsula, and it ceases its meddling in Palestine, and throughout the Islamic world,’ bin Laden told the al-Jazeera correspondent Taysir Alluni six weeks after the 11 September attacks. ‘If we gave this equation to any child in any American school, he would easily solve it within a second.’ When Bush said in 2004 that his was ‘a war against people who hate freedom’, bin Laden responded: ‘Perhaps he can tell us why we did not attack Sweden, for example.’ In December 1998, two months after his followers had destroyed the American Embassies in Nairobi and Dar es Salaam and killed hundreds of Africans, bin Laden justified the murder of unarmed civilians on al-Jazeera:

'The infidels tell Muslims that bin Laden is threatening to kill civilians – yet what are they doing in Palestine? They’re not only killing innocents, but children as well! . . . I say there are two sides in the struggle: one side is the global Crusader alliance with the Zionist Jews, led by America, Britain and Israel, and the other side is the Islamic world. It is not acceptable in such a struggle as this that he [the Crusader] should attack and enter my land and holy sanctuaries and plunder Muslims’ oil, and then when he encounters any resistance from Muslims, to label them terrorists. This is stupidity, or considering others stupid.'

‘They evidently won’t wise up without the language of beatings and killings,’ bin Laden said in his post-9/11 al-Jazeera interview. ‘So, as they kill us, without a doubt we have to kill them, until we obtain a balance of terror. This is the first time, in recent years, that the balance of terror has evened out between the Muslims and the Americans; previously, the Americans did to us whatever they pleased, and the victim wasn’t even allowed to complain.’ Jonathan Randal’s caustic aside in Osama sums up the American attitude: ‘How odd that many foreigners thought the United States ran a global empire and intervened at will in the affairs of countries great and small.’

Israel’s brutality to Palestinians and, in particular, its 1982 invasion of Lebanon appear to have inspired bin Laden’s world-view:

'The events that made a direct impression on me were during and after 1982, when America allowed the Israelis to invade Lebanon with the help of its Third Fleet . . . I still remember those distressing scenes: blood, torn limbs, women and children massacred. All over the place, houses were being destroyed and tower blocks were collapsing, crushing their residents, while bombs rained down mercilessly on our homes . . .'

As I looked at those destroyed towers in Lebanon, it occurred to me to punish the oppressor in kind by destroying towers in America, so that it would have a taste of its own medicine and would be prevented from killing our women and children. On that day I became sure that the oppression and intentional murder of innocent women and children is a deliberate American policy.

Attention! the old French saying goes, cet animal est très méchant, quand on l’attaque il se défend.

Bin Laden’s recalibration of violence between the West and Islam matches his capture of airtime on the world’s media. On the internet and television, he out-punches Bush. Unlike Bush, he is articulate and coherent. His rationale for violence is simple. You have attacked Muslims for the past century, and now Muslims are taking the war to you. ‘As I speak,’ bin Laden said in a sermon released on videotape in February 2003, ‘our wounds have yet to heal from the Crusader wars of the last century against the Islamic world, or from the Sykes-Picot Agreement of 1916 between France and Britain, which brought about the dissection of the Islamic world into fragments.’ Bin Laden is not fabricating Israeli oppression in the West Bank and Gaza or American interference in Islam’s political, cultural and financial life. He is one of the first preachers to address Muslims’ experiences in words they understand and deeds they believe are committed for their benefit. His imagery harks back to their earliest religious education.

[....]

When the Islamic umma is threatened, as bin Laden believes it is, the scholar’s duty is to struggle in its defence. The struggle is jihad.

In February 1998, under the banner of the World Islamic Front, bin Laden, together with Muslim fundamentalists from Pakistan, Bangladesh and Egypt, declared jihad on the United States, benefactor of Israel and of the tyrants who rule the Islamic birthplace in Saudi Arabia. The four self-declared leaders pronounced that

"To kill the Americans and their allies – civilians and military – is an individual duty incumbent upon every Muslim in all countries, in order to liberate the al-Aqsa Mosque and the Holy Mosque from their grip, so that their armies leave all the territory of Islam, defeated, broken and unable to threaten any Muslim. This is in accordance with the words of God Almighty: ‘Fight the idolators at any time, if they first fight you.’"

In Imperial Hubris, Scheuer describes this jihad:

'Theirs is a war against a specific target and for specific, limited purposes. While they use whatever weapons come to hand – including weapons of mass destruction – their goal is not to wipe out our secular democracy, but to deter us by military means from attacking the things they love. Bin Laden et al are not eternal warriors; there is no evidence they are fighting for fighting’s sake, or that they would be lost for things to do without a war to wage. There is evidence to the contrary, in fact, showing bin Laden and other Islamist leaders would like to end the war, get back to their families, and live a less martial lifestyle. They share the attitude of the Afghan mujahideen during the Afghan-Soviet war: they are weary of war, but not war weary in a way making them ready to compromise or fight less enthusiastically.'

Some of bin Laden’s declarations, however, point to a millenarian vision of permanent warfare between Islam and the rest of the world. ‘Although our enemy lies,’ he stated in an audiotape broadcast by al-Jazeera in January 2004, ‘our religion tells the truth when it stipulates: you fight, so you exist.’ Two months later, Islamists detonated the Madrid bombs. Afterwards, bin Laden was more conciliatory, offering on al-Jazeera and al-Arabiyya ‘a peace proposal in response to positive recent exchanges’. Spain had just elected a socialist government, whose first action was to keep its election promise to withdraw Spanish troops from Iraq.

'So I present to them this peace proposal, which is essentially a commitment to cease operations against any state that pledges not to attack Muslims or intervene in their affairs, including the American conspiracy against the great Islamic world. This peace can be renewed at the end of a government’s term and the beginning of a new one, with the consent of both sides. It will come into effect on the departure of its last soldier from our lands, and it is available for a period of three months from the day this statement is broadcast . . . Therefore, stop spilling our blood in order to save your own.'" [emphasis added]

In short, there is no evidence here for the claim that
"Bin Laden actually expects to destroy or convert the US to Islam."

Furthermore, Glass's analysis, following that of the books under review, suggests that Richards knows what she is talking about.

Only the caliph (Sunni) or Mhadi (Shia) can initiate an aggressive jihad. Thus Bin Laden is constrained to create a theory of defensive war against asserted aggression. Legally he must offer in his declaration of war the alternative of peace if the Ummah agrees to either convert to Islam or cease what he considers aggression.

Now let me try to get back on track. Afghanistan is a country that signed the Geneva Conventions. The government in control of that country from the late 90's to 2001 was the Taliban. Omar was the leader. Bin Laden held a position that makes sense in theocratic but not Western theories of government. They declared war on the US using Islamic forms and rules, not those of the West. They attacked the US on several occasions. Some attacks (the African embassy) were cleary terrorism and some (the USS Cole) were clearly ordinary military combat, but the US called it terrorism anyway.

After 9/11 the US continued the rhetoric of terrorism while adopting the policy of a real war against a real country. We sent military forces that defeated their army and drove them across the border into safe havens in Pakistan, but they continue cross-border combat. Are they a party to a civil war, a government (since to the Pashtu tribes of Afghanistan and Pakistan, the "border" is an artificial demarkation), a government in exile? In what way are the Taliban in Pakistan less a real army than the Free French in Britain? Do we have more right to call them terrorists than the Germans had to use the same word for Tito's Partisans or the French Resistance?

International law is at best a mutually accepted framework by which sovereign nations interact. The US has been rather agressive in pointing out that it does not surrender its sovereign rights unless it actually agrees to a treaty. In this case we have an enemy who not only disagrees, but also rigorously follows a different international law that has a long history and wide acceptance in other parts of the world. If the enemy believes we are at war, and the administration believes it, and congress believes it, then on what basis do scholars of Western international law assert that it is not "a real war," ignoring all the historical precendents.

International bodies have failed for decades to reach an agreed definition of "terrorism". We would do better to ban the word from our vocabulary so we can think clearly without the name calling. The "Global War on Terrorism", like the "Axis of Evil", is simply a slogan. Al Qaeda was a unit of the Afghan Army consisting of an extimated 18,000 trained light infantry residing in Afghanistan on 9/10. Nineteen of those soldiers hijacked some planes the next day, but while they were part of Al Qaeda, they were not the whole thing. While it is part of our history and we must live with it, we do not define the US government or army solely on the basis of Wounded Knee.

One aspect of the Geneva Convention adherence in a war purely between Muslim countries was talked about in January at the AALS by Marco Sassoli. He spoke of the treatment of POW's by both sides as being a Geneva Convention success in the Iran-Iraq War.

Obviously there was the chemical weapons stuff of Saddam (with our help as many have detailed), but I am just trying to point out that even assuming two types of international laws of war, the battlefield realities of those different histories seem to have been able to coalesce to something similar in that the states involved in this matter appeared to comply to this extent with the Geneva Conventions. To that extent we can have two systems which in fact have common themes. Sort of like British, American and Indian English - many things that are common and universal but also not a perfect match - thus debates about what has become customary international law.

I do not yet really see a problem with Howard Gilbert's vision of Al-Qaeda in the context of Afghanistan in this war. I tended to think it a little more complicated in the sense that some parts might be associated with the Afghan government and some might be more "freelancers" even more free than the French Resistance or the Partisans of Tito. My knowledge is limited (as I show every day no doubt) but I can see Al-Qaeda and the Taliban as having a kind of fludity that goes with formal AND informal structure.

Best,
Ben


Best,
Ben

It is Shari'a, and according to it the world is divided into the Dar al-Islam and the Dar al-harb, the House of Islam and the House of War.

Let first clear some manipulations here.

In history any society ruled had some sort of religious system/ rules and social council, also in same time had some sort of military/ war infrastructures and councils represent the defence structure.

As for Islam Empire Dar-Islam was like a ministry deals with social religious matters at that time, for Dar-Alharb was concerned for all the preparations of war and defence of empire, so it’s like ministry of defence.

If some trying to play in words and playing their may I say their "hate" of Islam let take the hates from the mind and let’s be honest when putting the words.

In our time all the countries and empires had similar more complicated and wide establishments of what Islamic empire did, but let go to the basis, OBL he is criminal how many follow his words and his massage this is the question.

Is not really and doubtable that he can move 1.3 billions of Muslims, coundnot be considered he is a leading for Muslim people or represent Islam.

All of you talking about law, OBL under Islamic law he is a criminal in all accounts, the only thing left him free like other criminals in Islamic societies is the lack of law enforcements under religious ground and the social ground.

If we take a look to any Islamic country they had harsh laws when it comes to critics their kings and leaders but till now OBL have not yet charged under Saudi law!! O Saudis regime only striped his citizenship from him?

More over there are common practice within ME regimes they detained their opposition’s family members some time kill them to enforce their oppositions to surrender, now OBL Son he is travelling and become a star in ME as even he is openly support his father actions so this bring us to ask to point where is the problem?

Is it Islam Dar-Alharb or Dar Islam?

Non of this nonsense will be involved at all, all its return to basis law on the ground ruled by regimes they care about themselves and putting the laws to kill, detained any one trying speaking about their corruptions and crimes.

To return for a moment to the original post of Prof. Ku, simply because the military strikes have not generated much contorversy in the U.S. (and I am not sure it can be safely said that they are uncontroversial abroad), does not support the inference that they are therefore lawful or justifiable under international law. Under the traditional understanding of jus ad bellum the strikes would constitute a use of force in violation of Art. 2(4) of the U.N. Charter, and it would be very difficult to see how they could be justified within the rubric of self-defence provided for in Art. 51.

How does the assertion that the U.S. is "at war", or "in a war with global terrorism" advance the legal analysis of whether the strikes were lawful under jus ad bellum? Why isn't the "legal paradigm" that explains U.S. actions simply the traditional one of jus ad bellum, pursuant to which U.S. actions would be explained as constituting unlawful aggression. It seems to me that those who would assert that the strikes were not unlawful have the heavy burden of demonstrating precisely how the law has actually developed so as to provide a justification for missile strikes into the territory of another state to target alleged terrorists. For those interested, there is an interesting discussion on the same issues over at Slate here.