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Debate (Round 2): A Reply to Rona and Jinks

This post is one in a series from Gabor RonaGeoffrey Corn, and Just Security’s Derek Jinks. The debate addresses a fundamental question for US national security law: What set of international rules should apply to the US conflict with Al-Qaeda? The laws of war? International human rights law? A combination of both? We organized this discussion as a three-way debate to identify and engage substantially different perspectives on the topic.  You can find the posts from Round I of the debate here: RonaCorn, and Jinks.   And don’t miss the other posts from Round II posts.

Like my friend Gabor Rona, I also consider our collective discourse is an ideal way to open this new and important blog, and share his sense of honor that I was invited to offer my views this subject. I also feel honored to be engaged in this dialogue with two colleagues for whom I have the utmost respect.

Two strains of thought dominate my reaction to our initial submissions: First, that in addition to the predicable discord, they reflect significant consensus on core questions related to the “struggle” against al Qaeda. Second, that they also reflect the impact of perspective when assessing these questions. The lens through which we view issues of law related to national security policy will and really must impact our individual approach to and analysis of these issues. As a result, it seems to me that the value of this type of dialogue is twofold. First, it provides insight into how varying perspectives impact the way such issues are tackled. Second, it facilitates identifying where experts with different guiding perspectives find consensus on the most complex issues. While it is almost certainly impossible to achieve total consensus among such differing viewpoints, the common ground identified provides perhaps a potentially solid a foundation for development of national security policy, at least as solid as one could hope to build upon.

It should be relatively obvious that my own personal background as an Army officer – serving my first six years as a tactical intelligence officer in an area dominated by “low intensity conflicts”, and the remainder of my career as a JAG officer – significantly impacted my approach to the issue we were asked to address. I think the same can be said of my colleagues. I won’t presume to define their analytical perspective, but I do think it is fair to say they both approach the issues from a different perspective than mine.

What I find most compelling about our three submissions is the consensus that there are certain points in time and space where the nation must and should leverage the might or our armed forces to deal with the threat of transnational terrorism. Of course, there is nothing close to consensus on how to define the limits to that time and space, and in many ways the discord among us is reflective of the broader debate over the issue of the intersection of counter-terrorism policy, military power, and international law. For example, Gabor Rona devotes a substantial portion of his commentary on what he suggests is the dwindling credibility of characterizing al Qaeda as a “party” to an ongoing armed conflict. I share his conclusion that armed conflict by its very nature involves a struggle between “parties.” But how the concept of a “party to a conflict” aligns with the strategic and operational realities of a threat such as al Qaeda is, in my view, far more complex than the relatively conventional approach reflected in Gabor’s analysis.

There is no question that the sources Gabor relies on in support of his analysis are widely recognized as authoritative. But it is equally unquestionable that these sources arose in response to situations quite distinct from transnational counter-terror operations. In my view, this contextual distinction matters. Unlike Gabor, I simply reject the suggestion that determining what qualifies as a party to an armed conflict focused on a threat such as al Qaeda must be dictated by exclusive reliance on authorities that evolved in response to much more conventional threats. Instead, I believe the strategic and operational realities of transnational terrorism, and in particular al Qaeda, necessitate a far more nuanced and contextual assessment of “organization.” In short, what may have qualified as an “organized party” in the civil war in Spain or Bosnia cannot and should not be the touchstone for what qualifies as an “organized party” in the struggle to disrupt a transnational terrorist threat. This is especially the case when that threat, like al Qaeda, continues to evolve into in a manner that shuns traditional organization precisely because of the operational and tactical vulnerability it knows results from such organization.

Professor Jinks highlights another feature of this ongoing debate: the interrelationship between human rights law, humanitarian law, and soft law such as national policy. As he notes, a common feature of discourse related to military counter-terror actions is whether states may legitimately displace human rights protections merely by using military power in an objectively overzealous manner, thereby triggering a situation of armed conflict. Professor Jinks seems to challenge the validity of subjecting individuals to the risks inherent in armed conflict based on a pure lex specialis approach to assessing applicable legal authority. He notes that, “the ‘armed conflict’ concept cannot determine the outer limit of human rights law because it would allow, by its nature, ill-motivated states to bootstrap into a more favorable (viz., less constraining) international legal framework.” Here again, there may be more consensus than is immediately apparent. In fact, I suspect that many senior military operational leaders might reach a very similar conclusion to that Professor Jenks seems to suggest results from tempering the authority inherent in armed conflict with human rights limitations. However, I think they would get there by travelling down a very different path, one focused much more on policy considerations than human rights obligations.

Professor Jinks assertion of a complementary role for IHL and IHR suggests certain human rights based constraints on authority to disable or defeat an opponent in what we might call a “low level” armed conflict – operations that straddle the line between war and law enforcement. I think this is an almost inevitable reality for issues related to post-capture treatment of opposition personnel (such as detention and trial). But I do not believe that authority to use force against such individuals is, as a matter of law, subject to human rights based limitations. However, as noted in my own post, as a matter of policy, it is routine to impose analogous limits on the authority to employ force during armed conflict. The reasons for such rule of engagement based policy constraints are as varied as the operational missions they are imposed upon. Of course, the policy nature of these constraints preserves the flexibility to revert to more robust uses of force based on operational and tactical necessities. In my view, use of such ROE limitations is operationally and strategically logical when dealing with highly unconventional threats, and must continue to be the order of the day. But we should be extremely cautious about the increasingly common assertion that these policy limitations are in fact reflections of legal obligation. Ultimately, at some point the complementarity principle must yield to the core logic of armed conflict, and no place is this more compelling than in the targeting process.

One thing is certain about debates such as this: they matter. I doubt there has ever been a time in our history when the perspectives of experts in academia, non-government organizations, and advocacy groups have had a more profound impact on the development of national strategy and the interpretation of law related to the implementation of that strategy. This is obviously the result of many influences. I believe one of these influences is the credibility of the debate itself. Colleagues like those I am privileged to engage with here have earned a high level of respect among all interested parties in the realm of national security. This respect, and the overall credibility of analysis they and other experts bring to the dialogue on national security law, will inevitably increase the likelihood of balanced and credible national interpretations of international law, something we should all hope to contribute to.

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About the Author

is The Presidential Research Professor of Law at South Texas College of Law, and a Lieutenant Colonel (Retired), U.S. Army. He was formerly the Army’s senior law of war expert advisor.