Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, al Qaida and the Limits of the Associated Militia Concept

• Author: Geoffrey S. Corn
• Position: Associate Professor of Law, South Texas College of Law
• Pages: 181-218

VIII

Making the Case for Conflict Bifurcation

in Afghanistan: Transnational Armed

Conflict, al Qaida and the Limits of the

Associated Militia Concept

Geoffrey S. Corn*

Inresponse to aCommittee for Human Rights inquiry related to the targeted

killing of an alleged al Qaida operative in Yemen, the United States asserted:

The Government of the United States respectfully submits that inquiries related to

allegations stemming from any military operations conducted during the course of an

armed conflict with Al Qaida do not fall within the mandate ofthe Special Rapporteur.

Al Qaida and related terrorist networks are at war with the United States

Despite coalition success in Afghanistan and around the world, the war is far from

over. The Al Qaida network today is amultinational enterprise with operations in

more than 60 countries. 1

*Associate Professor of Law, South Texas College of Law.

Making the Casefor Conflict Bifurcation in Afghanistan

This assertion of the existence of an armed conflict between al Qaida and the

United States was both clear and emphatic, specifically rejecting the proposition

that the killing was governed by human rights norms. It also represents what many

believe is aradical theory of law: that an armed conflict can exist between aState

and atransnational non-State entity. 2

In no location has this latter proposition been more contested than in Afghan-

istan. Although al Qaida may very well operate in over sixty countries around the

world, the reality is that almost all the US military effort directed against that en-

emy has occurred in Afghanistan, where much of that effort has been intertwined

with the effort to defeat the Taliban armed forces. Because of the contiguous na-

ture of these operations, most scholars and law of armed conflict (LOAC) experts

have asserted from the outset of Operation Enduring Freedom that operations

directed against al Qaida in Afghanistan are subsumed within the broader armed

conflict in Afghanistan. Accordingly, they reject categorically the suggestion that

there was, or is, in Afghanistan adistinct armed conflict between the United

States and al Qaida.3Instead, operations directed against al Qaida were initially

just acomponent of the broader international armed conflict between the US-led

coalition and the Taliban regime, and thereafter of the non-international armed

conflict between the Kharzai government and its coalition backers and the rem-

nants of the Taliban.

But if the premise asserted in the US response excerpted above is valid—that an

armed conflict does exist between the United States and al Qaida—the question of

the nature of that conflict in Afghanistan is arguably more complex. By staking out

anew category of armed conflict, what Ihave labeled in previous articles as trans-

national armed conflict, the United States created the potential to treat the contig-

uous conflicts in Afghanistan as distinct.

Such atheory of conflict bifurcation has potentially profound consequences. If

there was and is only one armed conflict in Afghanistan, then rights and obliga-

tions related to al Qaida operatives must be analyzed under the regulatory regime

related to that broader conflict. This would impact awide array of legal issues,

ranging from status of detainees, transferability and command responsibility to ju-

risdiction related to criminal sanction for violation of the LOAC. If, in contrast, the

conflict between the United States and al Qaida occurring in Afghanistan is treated

as distinct from the conflicts related to the Taliban, afar more uncertain legal

framework would dictate adistinct package of rights and obligations vis-a-vis al

Qaida. This framework would be, at best, composed of general LOAC principles,

perhaps supplemented by policy extension of conventional LOAC provisions.4

This article will analyze the two primary impediments to recognizing such abifur-

cated conflict theory. The first of these is related to recognition in the context of an

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Geoffrey S. Corn

international armed conflict—that in such acontext al Qaida is properly and ex-

clusively treated as amilitia or volunteer group associated with the Taliban armed

forces. The second is related to recognition in the context of anon-international

armed conflict—that unless al Qaida is an element of the insurgent forces fighting

against the Kharzai government, operations conducted against al Qaida cannot be

characterized as armed conflict but must instead be characterized as extraterrito-

rial law enforcement.

Atheory of bifurcated armed conflict is concededly unconventional. Even if

such atheory is viable in the abstract, it is particularly problematic in relation to the

conflict in Afghanistan. This is because of the unavoidable reality that unlike the

type of "one off operations exemplified by the Predator strike that generated the

Department of State assertion above, operations in Afghanistan directed against al

Qaida are geographically and often operationally contiguous with those directed

against the Taliban. Further complicating the theory is that operations conducted

by al Qaida were, and are often are, intertwined with those conducted by the

Taliban. However, these complicating realities only highlight the ultimate ques-

tion: does all this mean that the legal character of the armed conflicts themselves

must be contiguous? It is precisely because the United States has asserted the exis-

tence of adistinct armed conflict with al Qaida that this question must be critically

considered.

Transnational Armed Conflict: Has Reality Outpaced Legality?

Defining the nature of the armed conflict against al Qaida—if there can be such an

armed conflict—is obviously critical to this analysis. As Ihave asserted in previous

articles,5the traditionally understood law-triggering paradigm that evolved from

the development of Common Articles 2and 3of the Geneva Conventions proved

insufficient to respond to the need for battlefield regulation of counterterror com-

bat operations.6These operations, particularly those conducted in response to the

attacks of September 11, 2001 reflect the reality that the basic regulatory frame-

work ofthe law of armed conflict must be triggered by any armed conflict. Because

this is the critical predicate for the application of abifurcated conflict theory to Af-

ghanistan, this section (reproduced with light edits from my prior article,

"Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need to Recog-

nize aHybrid Category of Armed Conflict"7)will explain the underlying rationale

for atransnational, or any, armed conflict theory.

The "either/or" law-triggering paradigm of Common Articles 2and 38proved

generally sufficient to address the types of armed conflicts occurring up until 9/11.

However, this fact no longer justifies the conclusion that no other triggering

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