The legalities of pursuing al-Qaeda

Anwar al-Awlaki. Photo SITE Intelligence

AQ radical cleric Anwar al-Awlaki was killed by a US drone in Yemen

How far does a country’s legal authority extend when pursuing transnational terrorist groups such as al-Qaeda for attacks carried out or still in the planning? Recent events in the Sahel region of Africa throw the issue into stark relief, but it had been in the news beforehand because of the controversy over deadly American drone strikes in Pakistan and Yemen – a programme overseen by John Brennan, Barack Obama’s top counter-terrorism adviser and the president’s recent nomination as the new director of the CIA. Indeed, even before 9/11 lawyers and governments were debating the relevant principles of international law.

Two IISS consulting senior fellows have new papers that touch on the subject.

Daniel Bethlehem, a former legal adviser to the UK Foreign and Commonwealth Office and our Consulting Senior Fellow for Law and Strategy, puts forward 16 principles for discussion in his article in the American Journal of International Law. He starts with proposition that: ‘States have a right of self-defence against an imminent or actual armed attack by non-state actors’,  before moving on to say that any armed act of self-defence must be proportionate to the threat faced.

He continues: ‘Whether an armed attack may be regarded as “imminent” will fall to be assessed by reference to all relevant circumstances, including (a) the nature and immediacy of the threat, (b) the probability of an attack, (c) whether the anticipated attack is part of a concerted pattern of continuing armed activity, (d) the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action, and (e) the likelihood that there will be other opportunities to undertake effective action in self-defence that may be expected to cause less serious collateral injury, loss, or damage.

‘The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self-defence, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent,’ he believes.

Bethlehem says that countries must take all reasonable steps to ensure their territory is not used by terrorists to launch an attack on another country, and that, subject to some exceptions including collusion, states generally cannot pursue non-state actors within another nation’s borders without that nation’s consent. (Bethlehem’s nine-page article is also discussed by Ashley Deeks at the Lawfare website.)

Meanwhile, IISS Consulting Fellow for Law and Strategy Rebecca Ingber has an article coming out in the Yale Journal of International Law that seeks to understand how and why the executive branch of government arrives at particular understandings of the legal constraints on it. She suggests that a lot of debate around the topic is theoretical, and fails to take into account ‘the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decision-making’.

‘Consider the following scenarios’, she invites readers, ‘in which the United States government must establish its legal authority to detain in a non-traditional conflict such as that with al-Qaeda.

‘First, envision exigent combat circumstances: US military operatives find themselves confronting individuals connected to al-Qaeda whom they would like to capture and detain, and must determine the scope of their legal authority to do so.

‘Now imagine this question arises in the context of a major report the United States is due to provide to the monitoring committee for a human rights treaty, explaining its understanding of its obligations under and compliance with the provisions of that treaty.

‘And finally, consider how this interpretation might play out if US officials were first asked to state the government’s legal authority for detention in the context of litigation, brought by individuals who allege that the government has unlawfully detained them. Might the executive’s position on its legal authority differ depending on which of these contexts first triggers the question for legal decisionmakers? If so, why?’

These are the sorts of questions that her 60-page paper ‘Interpretation Catalysts and Executive Branch Legal Decisionmaking’ explores, with a particular examination of the 2005–06 Report to the Committee against Torture.


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