Networks in Non-International Armed Conflicts: Crossing Borders and Defining 'Organized Armed Groups

• Author: Peter Margulies
• Position: Professor of Law, Roger Williams University
• Pages: 54-76

International Law Studies 2013

54

A

Networks in Non-International

Armed Conflicts: Crossing Borders

and Defining “Organized Armed Group”

Peter Margulies*

I. INTRODUCTION

s Al Qaeda has dispersed, the precise definition of an “organized

armed group” (OAG) under the law of armed conflict (LOAC) has be-

come increasingly vital. The United States currently targets certain mem-

bers of Al Qaeda and affiliated organizations not only in Afghanistan, but

also in other countries.

1

However, while the elements of Al Qaeda that

were present in Afghanistan immediately after September 11 presumably

constituted an OAG, it is less clear that supposed affiliates outside Afghan-

* Professor of Law, Roger Williams University. I thank Laurie Blank, Geoff Corn and

Rebecca Ingber for comments on a previous draft.

1

. See John O. Brennan, Assistant to the Presid ent for Homeland Security and C oun-

terterrorism, Remarks at the Harvard Law School Program on Law and Security: Strength-

ening Our Sec urity by Adhering to Our Values and Laws (Sept. 16, 2011), available at

http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan- st

rengthening-our-security-adhering-our-values-an; see also Harold Hongju Koh, Legal Ad-

viser, U.S. Department of State, Address at the Annual Meeting of the American Society

of International Law: The Obama Administration and International Law (Mar. 25, 2010),

available at http://www.state.gov/s/l/releases/remarks/139119.htm; cf. Robert M.

Chesney, Beyond the Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture of Counte r-

terrorism, __ MICHIGAN LAW REVIEW (forthcoming 2013), available at http://ssrn.com/

abstract=2138623, at 14–16 (discussing dilemmas in cross-border targeting de cisions).

Networks in Non-International Armed Conflicts Vol. 89

55

istan are part of the same OAG. The issue raises the stakes of targeting de-

cisions. If affiliated groups are part of an OAG under the Al Qaeda “um-

brella,” then arguably the United States has the right to target them wher-

ever they are.

2

But if groups outside Afghanistan are not part of Al Qaeda,

then targeting them requires a separate armed conflict and a separate jus ad

bellum justification for the use of force.

3

Formulating and applying the

OAG criteria is therefore an essential enterprise.

This article responds to the high-stakes challenge with a pragmatic ap-

proach

4

along two axes. First, it argues for a broad interpretation of the

definition of “organized armed group” framed by the International Crimi-

nal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Tadic.

5

In

practice, while the language of the definition appears to be narrow, case law

and scholarship have often expanded the concept. Second, the article

shows that terrorist groups generally, and Al Qaeda in particular, reveal a

surprising degree of organization. Some of this organization takes unco n-

ventional forms, dictated by the special circumstances of terrorist net-

works. Yet terrorist groups actually have many of the same organizational

needs as States, including the pervasive need to control agency costs.

Moreover, Al Qaeda exists in a synergistic relationship with many regional

groups, providing training and influencing their choice of targets. Strategic

influence of this type is a sufficient justification for targeting affiliates.

This article proceeds in two parts. Part I outlines the lessons of case

law and commentary regarding the definition of OAG. This part suggests

2

. If the State in which the group is currently located is willing and able to deal with

the threat, the United States should defer to that State’s efforts. See Ashley S. Deeks, “Un-

willing or Unable”: Toward a Normative Framework for Ex traterritorial Self-Defense, 52 VIRGINIA

JOURNAL OF INTERNATIONAL LAW 483, 499–503 (2012) (exploring “unwilling or unable”

test based on law of neutrality); cf. Karl S. Chang, Enemy Status and Military Detention in the

War Agai nst Al-Qaeda, 47 TEXAS INTERNATIONAL LAW JOURNAL 1, 25–36 (2011) (con-

sulting neutrality law to define “enemy” who can be targeted o r detained); Rebecca Ingber,

Untangling Belligerency from Ne utrality in the Conflict with Al Qaeda , 47 TEXAS INTERNATIONAL

LAW JOURNAL 75 (2011) (cautioning that neutrality law does not provide useful guide for

detention of non-State actors in non-international armed conflicts (NIACs)).

3

. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 204–11 (4th ed.

2005).

4

. See generally MICHAEL J. GLENNON, THE FOG OF LAW: PRAGMATISM, SECURITY,

AND INTERNATIONAL LAW 20 (2010) (recommending “broader and more flexible inter-

pretive method”).

5

. See Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on Defence Motion for In-

terlocutory Appeal on Jurisdiction, ¶ 70 (Int’l C rim. Trib. for the Former Yugoslavia Oct.

2, 1995).