Until They Are Effectively Destroyed: the U.s. Approach on the Temporal Scope of Armed Conflicts With Terrorist Organizations

“Until They Are Effectively Destroyed”: The U.S.

Approach on the Temporal Scope of Armed

Conf‌licts with Terrorist Organizations

Christian Schaller*

INTRODUCTION

In an immediate reaction to the attacks of September 11, 2001, President

George W. Bush declared that America’s “war on terror” had begun with al

Qaeda but would not end there. In his view, this war would not be f‌inished “until

every terrorist group of global reach has been found, stopped, and defeated.”

1

What President Bush called the “war on terror” has evolved into a permanent

military campaign in which the United States has been trying to eliminate jihadist

groups and their networks in various regions of the world, including al Qaeda, its

branches, and the Islamic State in Iraq and Syria (ISIS, also known as IS, ISIL, or

Daesh). Both the Obama administration and the Trump administration framed the

f‌ight against these actors as a state of armed conf‌lict to ensure that U.S. forces can

operate with suff‌icient legal authority. The Biden administration is unlikely to

take a fundamentally different stance on the matter. The question of how this state

of armed conf‌lict will come to an end, which has been raised occasionally but has

not yet been answered persuasively, is closely entangled with questions of U.S.

domestic law and policy. However, the present article will address the issue from

the perspective of international law, focusing on the concept of non-international

armed conf‌lict (NIAC). International treaty law does not tell us under which con-

ditions a NIAC ceases to exist, and international jurisprudence on the matter is

scarce. Different approaches and theories have therefore been developed by prac-

titioners and scholars to determine the end of such conf‌licts in general. The stand-

ard employed by the United States in the counterterrorism context deviates

signif‌icantly from these approaches and theories. According to the U.S. position,

an armed conf‌lict with a terrorist organization ends when the organization’s

operational capacity is degraded and its supporting networks are dismantled to

such an extent that the organization is effectively destroyed and will no longer be

able to attempt or launch a strategic attack against the United States. The present

article analyzes the legal and practical implications of this doctrine. In particular,

it will argue that the doctrine lacks conceptual clarity and coherence and is prob-

lematic from a humanitarian perspective. From a strategic point of view, how-

ever, the most important aspect is that the doctrine gives political decision

* Dr. Christian Schaller, Deputy Head, Global Issues Division, Stiftung Wissenschaft und Politik

(SWP), German Institute for International and Security Affairs, Berlin. © 2021, Christian Schaller.

1. Address Before a Joint Session of the Congress on the United States Response to the Terrorist

Attacks of September 11, 2 PUB. PAPERS 1140, 1141 (Sept. 20, 2001).

635

makers and military commanders considerably more f‌lexibility to justify continu-

ous detention and direct targeting operations than those approaches discussed in

the literature.

I. THE U.S. LEGAL POSITION ON THE END OF ARMED CONFLICTS WITH TERRORIST

ORGANIZATIONS: THE EFFECTIVE-DESTRUCTION DOCTRINE

The law of armed conf‌lict, also known as International Humanitarian Law

(“IHL”), enables States to take action that would not be allowed in a peacetime

environment where international human rights law applies without modif‌ication.

Most notably, States enjoy greater legal leeway to target, capture, and detain indi-

viduals in an armed conf‌lict than in situations not amounting to an armed conf‌lict.

Another characteristic feature of IHL is its tolerance for collateral civilian casual-

ties. Governments facing criticism regarding the legality of an operation therefore

often claim that their forces are deployed in the geographical and temporal con-

text of an armed conf‌lict. This is particularly the case in situations where States

take cross-border action against terrorist groups. Claus Kreß noted that “States

seem to be more interested in availing themselves of the wider powers they can

derive from the application of the law of non-international armed conf‌lict ...than

they are concerned by the restraining effect of the ensuing obligations.”

2

In the

aftermath of 9/11, the law of armed conf‌lict has become an important source of

authority for the United States to justify operations against terrorist structures in

Afghanistan and other places. In a nutshell, the off‌icial position of both the

Obama administration and the Trump administration may be summarized as fol-

lows: (1) because the United States is in an armed conf‌lict with several terrorist

organizations (according to the off‌icial position, the applicable legal regime is the

law of non-international armed conf‌lict), it has the authority to conduct military

operations against them without having to demonstrate in every case that the re-

spective mission is covered by the right to self-defense; (2) in this ongoing armed

conf‌lict, which is not def‌ined by any geographic borders, the United States may

also carry out military operations beyond “hot” battlef‌ields; and (3) the law of

armed conf‌lict allows the use of lethal force against identif‌ied individual mem-

bers of such groups as well as against individuals directly participating in

hostilities.

3

2. Claus Kreß, Some Ref‌lections on the International Legal Framework Governing Transnational

Armed Conf‌licts, 15 J. CONFLICT & SECURITY L. 245, 260 (2010).

3. See, e.g., THE WHITE HOUSE, REPORT ON THE LEGAL AND POLICY FRAMEWORKS GUIDING THE

UNITED STATES’ USE OF MILITARY FORCE AND RELATED NATIONAL SECURITY OPERATIONS (unclassif‌ied

version, 2016), https://perma.cc/FQ6H-NDDN [hereinafter 2016 REPORT ON LEGAL AND POLICY

FRAMEWORKS]; THE WHITE HOUSE, REPORT ON THE LEGAL AND POLICY FRAMEWORKS GUIDING THE

UNITED STATES’ USE OF MILITARY FORCE AND RELATED NATIONAL SECURITY OPERATIONS (unclassif‌ied

version, 2018), https://perma.cc/K6CF-CR48 [hereinafter 2018 Report on Legal and Policy

Frameworks]; THE WHITE HOUSE, REPORT ON THE LEGAL AND POLICY FRAMEWORKS GUIDING THE

UNITED STATES’ USE OF MILITARY FORCE AND RELATED NATIONAL SECURITY OPERATIONS (unclassif‌ied

version, 2020), https://perma.cc/E7J3-V78H [hereinafter 2020 Report on Legal and Policy

Frameworks].

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