Identifying the Start of Conflict: Conflict Recognition, Operational Realities and Accountability in the Post-9/11 World

Abstract

The debates about whether the United States can be in a non-international armed conflict with one or more transnational terrorist groups — and all the accompanying questions about treatment and status of persons, accountability, and the conduct of hostilities — have ignored a key question: exactly when did the U.S. conflict with al Qaeda start? On 9/11? When the United States launched its response in October 2001? With the bombing of the U.S.S. Cole? The 1998 Embassy bombings? With Osama bin Laden’s 1996 declaration of war? Perhaps even earlier? The question is central not only to the application of LOAC triggering authority overall, but also to the prosecution of individuals at the U.S. Military Commissions, because in order to prosecute individuals for crimes before or on 9/11, the prosecution must demonstrate that an armed conflict existed at those times.

This article explores how to identify the start of a non-international armed conflict, based on the challenges posed by the U.S. conflict with al Qaeda. Although the Geneva Conventions and the associated International Committee of the Red Cross Commentary to the Conventions define the start of international armed conflict — a conflict between two states — and provide guidance as to the identification of non-international armed conflict, neither the Conventions nor the interpretive Commentary offer a methodology for isolating the precise start of such a conflict. Furthermore, in few non-international armed conflicts do we see a particular start date identified; rather, the legal analytical process tends to focus on the identification of the conflict itself during one or more timeframes. Yet accountability for violations of LOAC rests on the existence of an armed conflict, making a precise determination essential in certain cases. Moreover, uncertainty about the start of conflict can also produce operational complexities concerning the wartime authorities to kill or detain.

This article first explains the basic legal regime governing the identification and characterization of armed conflict, whether international or non-international, and highlights the differences between international and non-international armed conflicts with respect to the triggering of the law of armed conflict. It then applies this paradigm for identifying the start of conflict to the U.S. conflict with al Qaeda to flesh out the appropriate mechanism for pinpointing the start of the conflict. After detailing the various approaches to dating the conflict, we then consider three options for marking the start of the conflict: the now-traditional Tadić factors of intensity and organization; the non-state group’s attack as the start of the conflict; or the state’s declaration of the existence of a conflict. We examine the impact of both operational realities and extraterritorial conflicts on this legal analysis of conflict trigger. Finally, we address whether a state can, in effect, "claw back" the start of conflict to an earlier timeframe for purposes of accountability, which has significant consequences for the fundamental purposes of the law of armed conflict and of accountability for violations.

Keywords: law of armed conflict, al Qaeda, military commissions, international humanitarian law, Common Article 3, Geneva Conventions, non-international armed conflict, law of war, international armed conflict