First and foremost, international humanitarian law conceives of just two categories of armed conflict: international and non-international. International armed conflicts are fought exclusively between sovereign states, not between states and non-state actors. Osama bin Laden can no more declare war on the United States than you or I can.
Non-international armed conflicts — for example, civil wars, rebellions, insurgencies — involve fighting between regular state armed forces and identifiable armed groups, or between armed groups fighting one another, but only within the territory of a single State. There are rules that govern both international and internal armed conflict but they differ in certain important respects. Some basic rules — like Common Article 3 of the Geneva Conventions — apply across the board.
When the law of international armed conflict or the law pertaining to internal armed conflict applies can differ from one case to the next. The legal standing of Al Qaeda as an entity in Afghanistan may differ to its standing in Pakistan, which in turn may be different to its standing in Yemen, Europe or even the United States.
Confused? You should be. In law, this is all a matter of argument as much as fact. It is complicated and often uncertain.
People who cling to the war paradigm also forget another important and powerful point. In war you are allowed to kill people. Do we really want to accord Al Qaeda that kind of legitimacy?
What is essentially debated in Military Commission hearings is not the right of alleged Al Qaeda members to use armed force against US interests but whether or not they have done so within the laws of war.
By operating out of uniform, combatants – and it is worth noting that this is applicable not only to regular armed forces and armed groups, but potentially also to military contractors and intelligence agents – open themselves up to charges of perfidy, or the feigning of civilian status to kill, injure or capture an adversary. This is the legal theory underpinning most of the cases heard in Guantanamo: not that Al Qaeda does not have the right to kill Americans but that it has not gone about it in the right way.
The inherent logic of the war paradigm is that if Al Qaeda members wear at least rudimentary uniforms and carry their weapons openly, it can be argued that they would be free to engage uniformed Americans in combat and even, in some circumstances, civilians involved in potentially military tasks — such as weapons manufacture or infrastructure development — anywhere in the world without committing a war crime. This is not a development we should be seeking to encourage.
There is a much simpler, much more credible, way to ensure accountability for acts of armed groups like Al Qaeda — the criminal justice system. Many acts of terrorism are considered international crimes creating an obligation to prosecute or extradite the individual involved. US law furthermore asserts extraterritorial jurisdiction over the murder of its citizens. There is nothing complicated about either of these claims.
Describing terrorism as criminal activity is not weakness, it’s common sense. The U.S. criminal justice system has processed hundreds of terrorism cases over the years – such as the 1993 attack on the World Trade Center by Khaled Shaikh Mohammed’s nephew Ramzi Yousef and 1995 Oklahoma City bombing by right-wing extremist Timothy McVeigh.
Spanish authorities did not declare a state of war with Al Qaeda after the 2004 Madrid train bombings, which killed 191 passengers, nor did the British authorities after the 2005 London transport bombings, which killed 52. The reason is quite plain: after decades of experience combating domestic armed groups, like the Provisional IRA and the Basque separatist group ETA, they knew they didn’t have to.
The criminal justice system is tried and tested. You don’t have to invent new laws or tie yourself up in legal knots to justify detaining a suspect. You gather evidence, bring charges, and make your case in court. Simple. It is a process invested with a legitimacy that is recognized around the world.
Senator Lindsay Graham is fond of countering such arguments by responding that Al Qaeda didn’t “knock over the corner liquor store” but this is of course comparing apples to oranges.
The US government uses the criminal justice system to apprehend organized criminal gangs, a wide range of violent extremists, and international drug traffickers. One way or another all of these groups present a profound threat to our way of life and an explicit challenge to our government. Sensitive information frequently plays a part in such cases. US courts have proved equal to the challenge.
If we had treated Khalid Shaikh Mohammed and his alleged co-conspirators as criminal suspects, the 9/11 Trial would have been over years ago; The United States would have demonstrated that terrorists could not undermine our way of life; and Al Qaeda would be just another bunch of hoodlums, not some quasi-state actor on the world stage.