Networks in Noninternational Armed Conflicts: Crossing Borders and Defining 'Organized Armed Group'
International Legal Studies, Vol. 89, p. 54, 2013
20 Pages Posted: 7 Sep 2012 Last revised: 30 Sep 2015
Date Written: September 6, 2012
Al Qaeda’s dispersal and the rise of regional terrorist groups such as al Shabab in Somalia have raised the stakes for defining an “organized armed group” (OAG). The law of armed conflict applies to violence between OAGs. If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity’s violence. A narrow definition of OAG would thus undermine the United States’ reliance on targeted killings in states like Somalia that are remote from “hot” battlefields. That result might please human rights advocates, who critique targeted killing as posing an unacceptable risk of civilian casualties. However, constraining the United States and other nations could also give carte blanche to terrorist groups.
This paper argues that both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. To deal with the agency costs generated by personnel with disparate agendas and backgrounds, terrorist groups monitor, assess, and document performance, even when this bureaucratic turn endangers the groups’ security.
A transnational network like al Qaeda operates in a synergistic fashion with regional groups. While al Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders.
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