While the media is focused on the Trump administration’s strikes against Syria, there’s another effort to entrench and expand the U.S. global war posture that’s getting less attention. Sen. Bob Corker (R-TN), chair of the Senate Committee on Foreign Relations, recently announced that he plans to introduce new legislation that would authorize the U.S. government to wage war against al Qaeda, the Taliban, ISIS and various “associated forces.” According to POLITICO, the new bill “would cover all terrorist groups that the United States is currently engaged with and do nothing to restrict operations against those groups.” In addition, the law would not restrict the geographic location of the war authorization – essentially codifying the idea of a global battlefield.
This is dangerous for many reasons.
To be sure, the United States is already using lethal force against a broad array of armed groups across the Middle East and Africa, arguing it has the authority to do so under the 2001 and 2002 Authorizations for Military Force (AUMF). Already, this is widely seen as an overstretched interpretation of those laws, which were passed both in response to the Sept. 11, 2001, attacks and to address the alleged threat posed by Saddam Hussein in Iraq. Now, more than 16 years later, with U.S. troops and air strikes killing thousands of people a year, including civilians, it’s not surprising that some lawmakers are raising concerns that they need to finally exercise some oversight. That legitimate concern is even more heightened in light of President Donald Trump’s reported loosening of restrictions for air strikes outside of war zones, and of his recent statements expressing a shockingly callous disregard for civilian casualties.
But handing the Trump administration a new open-ended war authorization is definitely not the answer. For one thing, Corker’s expected legislation wouldn’t square with international law. And that law exists for good reasons.
Under international law, a nation-state like the United States, fighting an armed conflict against a non-state armed group, such as ISIS, must respect the laws of war, or international humanitarian law (IHL), and international human rights law. IHL sets specific rules for who can be targeted and how civilians must be protected. But IHL applies only when you have an actual armed conflict, which involves two or more distinct, organized parties to the conflict, battling one another’s armed forces at a level of intensity that is significantly more than sporadic attacks. The non-state armed group must also be sufficiently organized, with a command structure capable of directing its members.
When the conflict is defined as a war against “terrorism,” or against a particular non-state armed group and unnamed “associated forces” — without regard as to whether they have the requisite organization, where they are located, or the intensity of armed confrontations — it’s no longer an armed conflict for the purposes of international law. The looser laws of war do not apply when there is no actual armed conflict. In the absence of organized parties with fighters following a clear command structure and sustained hostilities of the requisite intensity, international human rights law – and not IHL – sets the rules. In such situations, a state cannot use lethal force to target someone except in the extraordinary circumstance where that person is posing an imminent threat to life and lethal force is necessary to neutralize the threat.
What the U.S. Congress is now poised to consider is a war authorization that would, at best, replicate and potentially aggravate the problems of the existing AUMFs, undermining both the laws of war and international human rights law. It would represent Congress giving a new stamp of approval to the administration’s already dramatically stepped-up use of lethal force. With reports of civilian casualties and unlawful killings mounting, and with little official acknowledgment or effective investigation of alleged violations, this sends the wrong message to the White House.
Legislation that reaffirms the dangerous and misguided notion that the United States is in an open-ended conflict on a global “battlefield” against vaguely defined and even unidentified armed groups around the world blurs the important distinction between armed conflict and other forms of violence – put simply: war and violence outside of war – and places lives and rights at risk. It would endanger not only the millions of people in the areas where the United States is already using lethal force, but also potentially millions of others, should the administration decide to interpret the new authority to extend to members of the relevant armed groups who live in countries where the U.S. is not currently bombing. It is a gravely dangerous step that invites unlawful killings, civilian casualties, war crimes and human rights violations—as well as emulation by other countries. It also risks undermining the laws of war and international law as a whole.
Surely, this is not what Corker and his colleagues intend. But in the effort to exercise responsible oversight of how the United States is using lethal force, senators shouldn’t rush to pass a new law that could perpetuate and even expand unlawful killings and other violations, and expose U.S. forces to liability for crimes under international law. Instead, lawmakers should engage in a careful and deliberate process that considers the broader U.S. strategy that respects and supports the laws of war and human rights law. Congress should also consider carefully both the immediate and long-term consequences for the international rule of law if it permits the entrenchment and expansion of the current global war model.