In your book Targeted Killings, you write that engagements with terrorist organizations should be addressed under the “armed conflict model”- under which terrorists are treated as enemy combatants, lethal action against such combatants is acceptable even if the combatants do not pose an imminent threat- as opposed to the “law enforcement model”- under which the wrongdoer must be lawfully detained and tried in a civilian court. Which model best applies to United States engagement with the Islamic State?
An armed conflict model provides more power to the government than a law enforcement model. So from the government’s perspective the armed conflict is much more powerful because in armed conflict you are empowered to kill enemy combatants because that is what war is about. It is not a violation of law or morality of war to kill an enemy combatant, whereas in the peace time law enforcement model you cannot just go around killing people. You can only kill people as a last resort. Why is it appropriate to use the armed conflict model for dealing with Al Qaeda and other terrorist organizations? You do not get to choose. It is not an on-off switch you decide for yourself whether to turn on or off. The framework is governed by the existence of an armed conflict. I think there is an armed conflict between the United States and Al Qaeda triggered by their attacks against the United States on 9/11.
That triggered the existence of an armed conflict and all of the permissive rules of targeting implicit in the armed conflict model. But of course there may come a day when Al Qaeda is sufficiently degraded that it no longer has the capacity to be a belligerent in an armed conflict. That would be a tipping point as it were. I use that phrase because the former chief counsel of the Defense Department Jay Johnson who is now Secretary of Homeland Security, he referred to the future of a tipping point where Al Qaeda would be so degraded that they could not be part of an armed conflict because they are now comprised of people scattered to the wind and they are not capable of launching a future attack. That is really the standard to whether a group is a party to an armed conflict- is that group capable of sustaining armed attacks of a significant level in the future. I think Al Qaeda is at the precipice right now. I also think you have to evaluate the specific franchise and not the overall organization that uses the banner Al Qaeda. So you have to ask whether or not Al Qaeda in the Arabian Peninsula or Al Qaeda in the IQIM or any of the regional affiliates you have to ask whether or not they are capable of being a belligerent in an armed conflict. Right now I think we very much are still in an armed conflict with these various groups, or with most of them, but that may not be the case forever. I hope that we defeat them to such a point that you really would have to concede that the armed conflict model is no longer appropriate and you switch to a law enforcement model and apply the much more restrictive rules than would be in an armed conflict.
So how does this apply in the IS situation? There has been beheadings, threatening rhetoric, but there have not been any direct attacks that constitute an armed conflict?
I think there is an armed conflict between the Islamic State and the United States, but it is not one that was triggered by an attack by IS against the American homeland. The best way to understand the situation is this: IS is engaged in a non-international armed conflict with Iraq, they are also engaged in a non-international armed conflict with Syria. We have now intervened as a co-belligerent with Iraq against IS and whether that is legitimate or not I do not know but presumably Iraq has the right to defend itself against the Islamic State. We are simply co-belligerents engaged in a collective self defense of Iraq.
This also has the uncomfortable consequence that we are also co-belligerents with Syria, because they are fighting IS and we are also intervening against IS in Syria. So in a sense we are a co-belligerent with Assad but at the same time we are not supporting Assad. We do not want to see him to gain power. We want the power to go to the moderate opposition in Syria. So I think there is a legal issues there- whether or not we are co-belligerents. There is always a big policy question as to whether there is a coherence to our approach. We are attacking IS targets in Syria. This allows the Assad government to save its resources and spend its time fighting the moderate opposition rather than IS. So in some sense in fighting IS we have given more time and space for Assad to wipe out the moderate opposition in Syria who we are supposed to be trying to assist. So I do not think there is a coherent military strategy there.
Do you think there is an achievable goal from US engagement with the Islamic State?
There certainly is in Iraq. We could push IS out of Iraqi territory and refortify their sovereign territory. I think the only way that can be accomplished is with ground troops. I think our current strategy- using proxy troops, training and equipping foreign fighters to do it for us- does not seem to be working. Anytime you drop a lot of money and weapons into an area it turns out badly because its difficult to keep control over those resources: they get stolen or diverted, or the group you give them to has sort of shifting alliances and before you know it they are using the money and weapons in ways you did not anticipate. So I think it is a very ineffectual strategy. I think the only way to achieve our goals militarily is by using our own forces but politically President Obama does not want to commit ground troops. In terms of Syria, I do not know what the coherent strategy against IS is. We can bomb them from the air but that is know an effective strategy because they can just hunker down during the air strikes. So we would need to use ground troops there as well, but that’s even more complicated because we would also have to use ground troops against the Syria government, which the Obama administration has said it will not do. Speaking very frankly, I do not see a coherent way out of the situation in Syria anytime soon. Unfortunately, I am very pessimistic about that.
You are coming out with a new book- The Assault on International Law- due out this December. Can you tell us a little about the book?
It is in many ways a response to a set of criticisms often made against international law, most often in the United States where politicians and scholars question whether or not international law is real law, and whether or not the United States of any other state really needs to follow it. These are basically skeptical challenges to the existence of international law, and is a uniquely American phenomenon. European countries do not feel the need to answer these questions because no one ever raises it. They assume international law is not only real, but it is incredibly important and provides meaningful restraints on state behaviors. So these skeptical accounts in the US were very dangerous during the Bush administration during 200 and 2008 they supported the Bush administration’s withdrawal from international institutions and the Bush Administration’s exceptionalist attitude towards the US- that we were not bound by international legal constraints in any sense. I specifically tackle a grop of arguments from American legal scholars who have very abstract arguments about the nature of international law. I show how these arguments are not only misguided but also dangerous. The core of the arguments that I am fighting against are arguments that say states are not acting out of a sense of legal obligation when they followi international law, what they are really doing is acting out of self interest. And because what they are really doing is acting out of self interest, they are not really generating any kind of real customary international law, and that when they decide self interest entails defecting from international law that is what they should do. The crux of my book is to question that whole argument and to say, wait a minute, rational self interest and legal obligations are not mutually exclusive.