Military Force, International Law, and the "War on Terror"
Following the 9/11 attacks, there was a broad international consensus on the legitimacy of an American military response against al Qaeda and the Taliban government of Afghanistan that harbored the terrorist movement. Lost in the shock of the attacks was an appreciation of how extraordinary this consensus was. In practical terms, the international community was willing to accept that notion that national governments lose their sovereignty when they allow transnational criminal organizations to operate on their soil.
Clearly, the AQ-Taliban case was a special one. AQ “foreign fighters” were apparently integrated into Afghan army units and provided a major supplement of combat power. But, regardless of the closeness of the ties between the two, as a structural matter the Taliban represented the de facto government of Afghanistan and AQ was, ultimately, a criminal organization operating on Afghan soil.
This specification of the problem is significant. Few, even today, question the legitimacy of the U.S. campaign to remove the Taliban. But has this case set a broader precedent? And if so, what are the parameters of this precedent. Does any country unilaterally have the right to engage in regime change if they are struck by a terrorist attack launched from another country? Must the victim demonstrate that the host country is actually complicit in the attack in some way? Must the victim seek out some sort of collective legitimization before resorting to military action? Can an unwilling host country avoid retaliation if it can demonstrate that it is trying to eject the terrorist organization.
This is not an academic exercise. Rather, these issues reflect fundamental challenges in current U.S. counter-terrorism policy. The United States has relied on targeting killings of AQ operatives in numerous countries. Is this policy legitimate? Could the Chinese, for instance, legitimately target Tibetan activists in the United States by claiming that those activists were inciting violence in China? What are American rights vis-à-vis AQ bases in Pakistan. Does the Afghan precedent suggest that the United States could legally engage in regime change in Pakistan in retaliation? If not, why not?
Six-and-a-half years have passed since 9/11. As my colleague Jim Ludes points out, we have yet to devise a sustainable legal framework to deal with terrorist suspects in our custody. Just as significantly, we have done virtually nothing to create a sustainable international legal framework for the use of force in the struggle against violent jihadism.
[...] Crossposted from here: Military Force, International Law, and the “War on Terror” [...]