What stops the U.S. government from declaring war on a person it perceives as a security threat and summarily attacking and killing him? The fact that doing so would violate the target’s right to life and fundamental due process, you might say. But in war, killing an enemy’s combatants is permitted. So can the United States declare war and designate as a combatant such perceived threats as a drug kingpin in New York, a Mafia don in Chicago or even Julian Assange or Edward Snowden?
More than moral revulsion militates against such abuse of war powers. There are also legal limits on who is properly viewed as a combatant and when war is an appropriate response to a threat. Those limits are rarely discussed, but nearly 12 years after the Sept. 11, 2001, attacks, with U.S. involvement in the traditional civil war in Afghanistan winding down, it is time to apply those limits to the global “war” against al-Qaida and its armed affiliates.
President Barack Obama recognized the problem in his May 23 speech at the National Defense University. He warned that “a perpetual war … will prove self-defeating, and alter [the United States] in troubling ways.” Quoting James Madison, Obama warned: ” ‘No nation could preserve its freedom in the midst of continual warfare.’ “
But the president did not take the next step of declaring an end to the war with al-Qaida or even explaining how citizens will know when it is over. International law provides guidance. The standard for when a legally recognized “armed conflict” exists between a state and an armed group appears in the protocols and official commentary to the Geneva Conventions and has been fleshed out by various international tribunals. An armed conflict requires a certain level of hostilities — judged by factors such as the number, duration and intensity of individual confrontations; the use of military weaponry; the number of participants in the fighting; and the casualties and displacement caused. It also requires the antagonists to possess armed forces under a command structure with the capacity to sustain military operations.
The al-Qaida threat to the United States, while still real, no longer meets those standards. At most, al-Qaida these days can mount sporadic, isolated attacks, carried out by autonomous or loosely affiliated cells. Some attacks may cause considerable loss of life, but they are nothing like the military operations that define an armed conflict under international law.
Obama himself has said that the core of al-Qaida — the original enterprise now based, if anywhere, in the tribal areas of northwestern Pakistan — has been “decimated.” Its affiliates, such as al-Qaida in the Arabian Peninsula and al-Qaida in the Islamic Maghreb, are more robust armed groups but have limited capacity to project their violence beyond their regions.
These affiliates are significant actors in Yemen and northern Africa, but it is far from clear that they pose a threat to the United States greater than, for example, Mexican drug cartels or international organized-crime networks — organizations for which few would characterize U.S. containment efforts as “war.” That the United States continues to deploy military force against al-Qaida is not enough to qualify that effort as an armed conflict, because if it were, a government could justify the summary killing of “combatants” simply by using its armed forces to do so.
Admitting that the contest with al- Qaida is no longer a war does not mean that the United States is defenseless or even that lethal force is forbidden. In the absence of war, U.S. conduct is governed by international human rights law, which favors arrest and prosecution but still permits lethal force, if necessary, to stop an imminent threat to life.
In his May speech, Obama said that the United States is already abiding by this standard beyond the Afghan theater. “[O]ur preference is always to detain, interrogate and prosecute,” he explained, and “we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.”
Those are the standards for policing, not war. So why not take the next logical step and declare the war against al-Qaida over? Yes, there may be a price to pay. Obama’s political opponents will holler and score points after the next, inevitable terrorist attack. But the cost of using war rhetoric to shunt aside appropriate limits on lethal force is even higher. Plenty of governments are eager for excuses to summarily kill their enemies, however tenuously defined — even those living in the United States. The U.S. government has also committed abuses in the name of fighting terrorism. The Obama administration should rethink its overly elastic definition of war on al-Qaida and call an end to it.
The writer is executive director of Human Rights Watch. He is on Twitter: KenRoth. Washington Post.
