Abstract
Al-Qaeda’s dispersal and the rise of regional terrorist groups such as Al-Shabaab in Somalia have raised the stakes for defining an “organized armed group” (OAG). If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity’s violence. Both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. Illustrating this organizational turn, a transnational network like Al-Qaeda operates in a synergistic fashion with regional groups. Moreover, recent news reports have suggested that current Al-Qaeda leader Dr. Ayman al-Zawahiri has attempted to assert operational control over the specific targeting decisions of Al-Qaeda affiliates, although that effort has not been uniformly successful. Furthermore, while Al-Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders. In addition, the doctrine of co-belligerency, borrowed from neutrality law, provides a basis for targeting that is not confined by state boundaries. Even when these indicia are absent, individuals within non-Al-Qaeda groups may be targetable if they engage in coordinated activity with Al-Qaeda.
Peter Margulies professor of Law, Roger Williams University. An earlier version of this piece was published as Networks in Noninternational Armed Conflicts: Crossing Borders and Defining “Organized Armed Group,” 89 Int’l L. Stud. 54–76 (Naval War College 2013). Matthew Sinnott J.D 2014, Roger Williams University School of Law; B.B.A. Hofstra University, 2011; 1st Lt. United States Marine Corps. The views expressed are the author’s own and do not necessarily represent the views of the U.S. Marine Corps/Naval Service or the U.S. Department of Defense.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
If the state in which the group is currently located is willing and able to deal with the threat, the United States should defer to that state’s efforts. Deeks 2012, pp. 499–503; Chang 2011, pp. 25–36 (consulting neutrality law to define “enemy” who can be targeted or detained); Ingber 2011 (cautioning that neutrality law does not provide useful guide for detention of non-state actors in NIACs).
- 3.
Dinstein 2005, pp. 204–211.
- 4.
Glennon 2010, p. 20 (recommending “broader and more flexible interpretive method”).
- 5.
ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (IT-94-I-AR72), 2 October 1995, para 70.
- 6.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), pp. 628–632.
- 7.
ICRC 2011, p. 10 (discussing “multinational NIACs [in which]… multinational armed forces are fighting alongside the armed forces of a ‘host’ state—in its territory—against one or more organized armed groups” as well as “transnational” conflict between “Al-Qaeda and its ‘affiliates’ and ‘adherents’ and the United States”); Watkin 2011, pp. 3–12 (discussing dilemmas in conflicts against non-state actors); Corn and Jensen 2009 (arguing that NIAC concept does not fit well in analyzing conflicts involving global terrorist networks such as Al-Qaeda and suggesting “transnational armed conflict” as a superior alternative).
- 8.
Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I).
- 9.
ECtHR, McCann v. The United Kingdom, Judgment (Appl. No. 18984/91), 27 September 1995; Corn 2011, p. 35 (analyzing relationship between LOAC and law enforcement paradigms); Bellinger and Padmanabhan 2011, pp. 210–213 (same); Criddle 2012 (arguing that IHRL paradigm fits most cases involving violence by a state’s nationals within a state’s own territory); Luban 2013 (asserting that law of armed conflict shows insufficient regard for welfare of civilians and that human rights law is superior in this respect); Hakimi 2012 (arguing for functional criteria that transcend distinction between LOAC and IHRL).
- 10.
McCann (Ryssdal J, dissenting), supra n 9, paras 7–22; Margulies 2013 (critiquing McCann).
- 11.
Israeli Supreme Court, Public Committee Against Torture in Israel v. The State of Israel, Judgment (HCJ 769/02), 13 December 2006, para 39 (asserting that fighters who make themselves regularly available to terrorist groups for acts of violence are directly participating in hostilities for such time as they make themselves available; any interlude between acts of violence is merely “preparation” for further violence). In this analysis, the court lent a flexible reading to concepts that the ICRC has defined more narrowly. International Committee of the Red Cross 2009, p. 54; Rona 2012 (criticizing United States’ targeting standards as unduly broad); but see Schmitt 2010, p. 731 (criticizing narrow reading in ICRC Guidance); Watkin 2010, p. 661 (criticizing ICRC’s failure to dismantle “revolving door” mechanism for terrorist groups).
- 12.
- 13.
Ohlin 2013. Although the definition of an OAG is relevant to targeting decisions, the targeting debate also raises other issues beyond the scope of this Article. Compare Anderson 2012, pp. 391–396 (rejecting argument that sophisticated technology behind drones that makes targeted killing easier also undermines practical checks on willingness to wage war); Chesney 2011 (suggesting that targeted killing under certain conditions is consistent with LOAC); Margulies 2012b, pp. 1471–1477 (same); Paust 2010 (asserting that targeted killing is legal under international law as long as targeting force observes principles of distinction and proportionality), with Alston 2010 (arguing that targeted killing in state that is not geographic site of armed conflict violates international law); O’Connell 2012 (same); cf. Daskal 2013 (suggesting additional guidelines to regulate targeted killings).
- 14.
- 15.
Roese 2004, pp. 260–261 (describing hindsight bias as “tendency to believe that an event was predictable before it occurred, even though for the perceiver it was not” and that harm was avoidable even when it was impossible to prevent).
- 16.
- 17.
Ohlin 2013.
- 18.
Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV).
- 19.
IHRL provisions are often subject to derogation. Cf. ICRC 2011, p. 15 (describing applicability and scope of IHRL, particularly extraterritorial applicability, as “work in progress”).
- 20.
Human Rights Council 2012, para 134 (noting accountability under IHL of anti-government armed groups in Syria).
- 21.
ICTY, Prosecutor v. Limaj, Judgment Trial Chamber (IT-03-66-T), 30 November 2005, paras 113–117; cf. Pejic 2011, pp. 191–192.
- 22.
Ibid, paras 113–117; see also ICTR, Prosecutor v. Akayesu, Judgment Trial Chamber (ICTR-96-4-T), 2 September 1998, para 626 (“responsible command” entails “degree of organization [that permits the group] […] to plan and carry out concerted military operations, and to impose discipline”; group must also “dominate a sufficient part of territory” and “operations must be continuous and planned”).
- 23.
In some cases, a criminal enterprise may be so organized and its violence against state officials so intense that classification as a NIAC is appropriate. See Bergal 2011, pp. 1042–1088.
- 24.
ICTY, Prosecutor v. Boskoski and Tarculovski, Judgment Trial Chamber (IT-04-82-T), 10 July 2008, para 190.
- 25.
ILA 2010, p. 25; cf. Scheppele 2010, p. 451 (asserting that global counter-terrorism measures permit states to disguise substandard governance as counter-terrorism); Setty 2010, p. 153 (suggesting that counter-terrorism policies in United States, United Kingdom, and India raise human rights concerns).
- 26.
Ohlin 2012, p. 75 (emphasis added) (noting this view while not necessarily endorsing it); Martin 2012, pp. 245–246 (suggesting that groups with nominal Al-Qaeda ties actually have little in common); Geiß 2009, pp. 134–135 (global Al-Qaeda network structure appears “rather basic” and “rudimentarily organized”); cf. Ohlin 2013 (offering more pragmatic view); Lubell and Derejko 2013, p. 86 (“the applicability of the ius in bello is not as geographically bound as may have been assumed”).
- 27.
- 28.
ICRC 2008, p. 5.
- 29.
However, the ICRC has also indicated that the criteria mentioned in the ICTY jurisprudence are useful guides. See International Committee of the Red Cross 2011, p. 8 (requiring a “certain level of organization,” which may include but is not limited to “the existence of a command structure…disciplinary rules…headquarters,” and logistical, attack, and negotiating capabilities).
- 30.
See Ohlin 2013, p. 1284 (“legal support for [requiring] centralization is misplaced”); Sivakumaran 2012, p. 1137 (noting that in many groups appropriately designated as OAGs, structure will be “horizontal,” rather than “pyramidal”); Schmitt 2011, p. 129 (arguing that group’s structure “need not be strictly hierarchical or implemented in any formalistic manner”).
- 31.
Prosecutor v. Boskoski and Tarculovski, supra n 24.
- 32.
Ibid, para 185 (noting that terrorism may be part of NIAC if it is part of “protracted campaign”).
- 33.
Ibid, paras 182–183; see also Blank and Corn 2013 (discussing flexibility in ICTY approach); HRC 2012, para 134 (asserting that anti-government armed groups in Syria should be considered OAGs that are accountable under IHL).
- 34.
Prosecutor v. Boskoski and Tarculovski, supra n 24, para 204.
- 35.
Prosecutor v. Limaj, supra n 21, para 116.
- 36.
Ibid, para 113.
- 37.
Ibid, para 116.
- 38.
See ibid, paras 128–129.
- 39.
Ibid, para 131 (citing Austrian Embassy report).
- 40.
Ibid (also observing that American diplomat Richard Holbrooke seconded this perception).
- 41.
Ibid, para 104.
- 42.
Ibid, para 110; see also ibid, para 124 (discussing KLA’s lack of communications equipment).
- 43.
Ibid, para 132; cf. Byman and Waxman 2000, p. 25 (finding that KLA failed to show “that it was capable of holding territory against the Serbian Army”) and p. 28 (describing KLA as initially “poorly organized” and as gaining strength only with NATO assistance).
- 44.
Prosecutor v. Limaj, supra n 21, para 132.
- 45.
Ibid, para 118.
- 46.
IACmHR, Abella v. Argentina (La Tablada), Case No. 11.137, Report No. 55/97, 18 November 1997, para 152.
- 47.
Ibid.
- 48.
Ibid (emphasis added).
- 49.
Ibid.
- 50.
Ibid, para 155. While the ICTR set out a narrower standard in Prosecutor v. Akayesu, that standard has generally not been followed and “is regarded as exceedingly high.” See Geiß 2009, p. 136 n 40.
- 51.
Prosecutor v. Boskoski and Tarculovski, supra n 24, paras 204–205 (pattern of IHL violations does not support inference that group is unable to comply).
- 52.
Cf. ibid, para 205 (explaining that tribunal “cannot merely infer a lack of organization… [because] international humanitarian law was frequently violated by [the group’s] members”); Zawacki 2013 (arguing that Muslim insurgent groups in Thailand have sufficient organization and coordination to constitute an OAG).
- 53.
ICTY, Prosecutor v. Ramush Haradinaj et al., Judgment Trial Chamber (IT-04-84-T), 3 April 2008, para 49 (noting that term, “protracted armed violence” has been “interpreted in practice […] as referring more to the intensity of the armed violence than to its duration”); see also Abella v. Argentina (La Tablada), supra n 46, para 155 (noting that “brief duration” of attack did not preclude classification as NIAC); cf. Paulus and Vashakmadze 2009, pp. 106–107 (arguing that Tadić “protracted armed violence” criterion refers to intensity as well as duration).
- 54.
Hoffman 2008, pp. 135–136 (discussing careful organization behind assassination of Austrian Archduke Franz Ferdinand, which precipitated World War I).
- 55.
Putnam 1988.
- 56.
- 57.
Hoffman 1998, pp. 168–169.
- 58.
Abrahms 2008, pp. 85–86.
- 59.
Kydd and Walter 2006, pp. 72–75.
- 60.
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), pp. 2729–2730; Margulies 2012a, pp. 486–493.
- 61.
Gilson and Mnookin 1994 (discussing virtues and risks of working through agents).
- 62.
Waxman 2010, pp. 433–437 (distinguishing between “top-down” and “bottom-up” threats).
- 63.
Townsend 2006.
- 64.
Sawyer and Foster 2008, p. 200.
- 65.
Sinno 2011, p. 318 (noting that networks such as Al-Qaeda are less vulnerable to state retaliation because of the mobile and dispersed nature of their leadership).
- 66.
Sageman 2008, pp. 23–24.
- 67.
Hoffman 2008, p. 134.
- 68.
Shapiro and Siegel 2012, p. 73; Mueller and Stewart 2012, p. 88 (arguing that individual defendants convicted in the United States of terrorism-related crimes were often lacking in competence and judgment); cf. Chellaney 2001–2002, pp. 96–97 (noting, as an example of agency costs in counter-terrorism, that aid to South Asian governments and non-state groups to fight terrorism has been siphoned off for other purposes).
- 69.
Shapiro and Siegel 2012, pp. 54–55.
- 70.
Mueller and Stewart 2012, p. 91 (asserting that Muslim population worldwide has been alienated by Al-Qaeda’s indiscriminate violence).
- 71.
Shapiro and Siegel 2012, p. 48 n 32.
- 72.
Ibid, p. 47.
- 73.
Ibid.
- 74.
Ibid, p. 48.
- 75.
Ibid, pp. 49–50.
- 76.
Ibid, p. 50.
- 77.
Ibid.
- 78.
Ibid, p. 51.
- 79.
Ibid, p. 50.
- 80.
Ibid, p. 51.
- 81.
Ibid.
- 82.
Ibid, p. 52.
- 83.
Ibid.
- 84.
Abrahms 2008.
- 85.
Shapiro and Siegel 2012, p. 73.
- 86.
- 87.
- 88.
Borgatti and Cross 2003, pp. 432, 436, 439, 441.
- 89.
Staniland 2012, p. 171.
- 90.
Byman 2012, pp. 14–15.
- 91.
Ibid, p. 15.
- 92.
Ibid, p. 13.
- 93.
Pressman 2007, p. 64.
- 94.
Joscelyn 2013.
- 95.
Ibid; cf. Boulos 2013.
- 96.
Joscelyn 2013.
- 97.
Sly 2013 (describing presence of Kuwaiti and Saudi fighters among extremist Syrian rebels).
- 98.
Barnard and Schmitt 2013.
- 99.
Morris and DeYoung 2013 (discussing Zawahiri’s efforts to clarify territorial focus of two Al-Qaeda offshoots active in Syria).
- 100.
Boulos and McDonnell 2014 (reporting on ISIS’s assassination of Abu Khaled Suri, whom Zawahiri had supposedly designated as an envoy between ISIS and the Al Nusra Front). ISIS as a group represents the evolution of ISIS into an organization that is active predominantly in the Syrian civil war.
- 101.
- 102.
Byman 2012, p. 6.
- 103.
Miller et al. 2013.
- 104.
Byman 2012, p. 6.
- 105.
Ibid.
- 106.
Ibid.
- 107.
Ibid, p. 7.
- 108.
Ibid.
- 109.
- 110.
Hoffman 2008, p. 135. The pattern of collaboration with Al-Qaeda is not monolithic; members of some groups have broken away. See Byman 2012, pp. 7–8 (discussing Egypt’s Gama al-Islamiya, many of whose members renounced violence after influence of Al-Qaeda led to widely criticized 1997 attack on tourists at Luxor).
- 111.
- 112.
Hoffman 2008, p. 138.
- 113.
Ibid.
- 114.
Celso 2012, p. 35.
- 115.
Ibid.
- 116.
- 117.
Williams 2008, pp. 138–139 (describing involvement of LTTE in heroin trade, human trafficking, gun-running, and extortion).
- 118.
Farrall 2011, p. 133; cf. Byman 2012, p. 11 (noting that “common consequence of the embrace of an [Al-Qaeda] label is for a group to seek out Western targets within a group’s theater of operations”); Pressman 2007, p. 65 (discussing proliferation of Osama bin Laden’s strategy of attacks on Western targets). David H. Petraeus, the former director of the Central Intelligence Agency, told congressional committees that AQIM and individuals in Libya with ties to Al-Qaeda may have contributed to the attack on the American diplomatic mission in Benghazi, Libya that resulted in the deaths of Ambassador J. Christopher Stevens and three other Americans. Schmitt E 2012.
- 119.
Farrall 2011, p. 133.
- 120.
Ibid, p. 134.
- 121.
Ibid.
- 122.
- 123.
Farrall 2011, p. 135.
- 124.
Ibid, p. 133.
- 125.
Ibid, p. 135.
- 126.
- 127.
Pressman 2007, pp. 68–70.
- 128.
Ibid, p. 69.
- 129.
Ibid, p. 70.
- 130.
But see Eilstrup-Sangiovanni and Jones 2008, pp. 36–37 (noting that network form can create security problems because of looser control by leadership and reliance on local operatives infiltrated by law enforcement, while acknowledging that security issues have not necessarily impaired groups’ abilities to cause massive harm to civilians).
- 131.
See Prosecutor v. Ramush Haradinaj et al., supra n 53, para 86 (discussing importance of training).
- 132.
Of course, targeting suspected terrorists is only one aspect of an effective counter-terrorism strategy. Aid that reaches needy individuals and groups can help good will toward the West and counter the appeal of terrorist groups. Chakravarty 2010, pp. 325–329.
- 133.
The US adopted this view in congressional testimony in 2013. See US Senate Armed Services Committee 2013 (testimony of Acting Defense General Counsel Robert Taylor and Assistant Secretary of Defense Michael Sheehan); cf. ibid (testimony of Professor Geoffrey Corn) (discussing concept of co-belligerency in terms of “shared ideology, tactics and indicia of connection between high-level group leaders”); cf. Ohlin 2012, pp. 70–72 (noting that co-belligerency is concept drawn from law of neutrality, under which a state that is a party to an international armed conflict can attack another state that has not declared its neutrality in the conflict; also asserting that doctrine may not be apt analogy for situation of non-state actors in NIACs, who lack states’ special status under Westphalian system and therefore may not have adequate notice that they are expected to declare their neutrality or face attack).
- 134.
US Senate Armed Services Committee 2013.
- 135.
News briefing 27 January 2014, The Chicago Tribune, 13; Preston 2014, p. 3.
- 136.
US Department of Justice White Paper 2013, p. 4 (arguing that targeting is appropriate under law of armed conflict in location where a party to an armed conflict “plans and executes operations from a base” and thus projects force to another location, even if actual hostilities at base site are not “intense and protracted”). Even in the absence of a NIAC, a state has the right to use self-defense to address imminent threats. Under customary international law, imminence has been defined narrowly, to encompass only threats that required an immediate response, with no “moment for deliberation.” Webster 1841. Recently, distinguished international lawyers and scholars have suggested that the special challenges posed by violent non-state actors who operate clandestinely may require a broadening of the definition of imminence. Koh 2014. This broadening might entail permitting the use of force at the last “window of opportunity” to stop a planned attack. Bethlehem 2012; Schmitt 2013, pp. 89–90; Chesney 2014, pp. 320–323. One can also construe US policymakers as arguing that even absent imminence, an organization that poses a “continuing threat” can be targeted outside of the armed conflict paradigm. Ibid. That argument is more sweeping than the approach outlined in this Article. A sweeping claim of authority to use lethal force beyond traditional imminence or the scope of armed conflict raises substantial doctrinal problems and poses tensions with international human rights law.
- 137.
Brennan 2011.
- 138.
Klaidman 2012, pp. 249–251 (reporting on information provided by Ahmed Warsame, who described himself as a “conduit” between AQAp and Al-Shabaab).
- 139.
Hubbard 2014 (noting Al-Shabaab’s deadly attack on mall in Nairobi, Kenya frequented by Westerners).
- 140.
Sergie 2014.
- 141.
Amnesty International 2014, p. 10.
- 142.
Abubakar and Levs 2014.
- 143.
Maiangwa et al. 2012, pp. 44–47, 53.
- 144.
Ibid, p. 44.
- 145.
Ibid, pp. 47–48.
- 146.
Karimi and Carter 2014.
- 147.
Zenn 2014.
- 148.
Benson 2011.
- 149.
Ibid.
- 150.
Zenn 2014.
- 151.
Maiangwa et al. 2012, p. 49.
References
Abrahms M (2008) What terrorists really want: terrorist motives and counterterrorism strategy. Int Secur 32(4):78–105
Abubakar A, Levs J (2014) ‘I will sell them,’ Boko Haram leader says of kidnapped Nigerian girls. www.cnn.com/2014/05/05/world/africa/nigeria-abducted-girls/index.html?hpt=hp_t1. Accessed 28 May 2014
Amnesty International (2014) Nigeria: more than 1,500 killed in armed conflict in North-Eastern Africa in early 2014. http://www.amnesty.org/en/library/asset/AFR44/004/2014/en/543f7ac9-6889-4f02-bf5a-d73832e04229/afr440042014en.pdf. Accessed 28 May 2014
Anderson K (2012) Efficiency in bello and ad bellum: making the use of force too easy? In: Finkelstein C, Ohlin J, Altman A (eds) Targeted killings: law and morality in an asymmetrical world. Oxford University Press, Oxford, pp 374–399
Barnard A (25 July 2013) Lebanon: Hezbollah’s leader rails against terrorist designation. New York Times, A11
Barnard A, Schmitt E (2013) Militants flood havens in Syria, posing a threat. New York Times, A1
Bellinger J, Padmanabhan V (2011) Detention operations in contemporary conflicts: four challenges for the Geneva conventions and other existing law. Am J Int Law 105(1):201–243
Benson P (2011) Al Qaeda links to Nigerian terror group. http://security.blogs.cnn.com/2011/09/23/al-qaeda-links-to-nigerian-terror-group. Accessed 26 Sept 2014
Bergal C (2011) The Mexican drug war: the case for a non-international armed conflict classification. Fordham Int Law J 34(4):1042–1088
Berman E, Laitin D (2008) Religion, terrorism, and public goods: testing the club model. www.nber.org/papers/w13725. Accessed 26 May 2014
Bethlehem D (2012) Self-defense against an imminent or actual armed attack by non-state actors. Am J Int Law 106(4):769–777
Blank L, Corn G (2013) Losing the forest for the trees: Syria, law, and the pragmatics of conflict recognition. Vanderbilt J Trans Law 46(3):693–746
Blum G (2010) The dispensable lives of soldiers. J Legal Anal 2:115–170
Borgatti S, Cross R (2003) A relational view of information seeking and learning in social networks. Manag Sci 49:432–445
Boulos N (2013) Rebels confirm Al-Qaeda link; Al Nusra front’s Syrian leader also acknowledges ties to a militant Iraqi group. Los Angeles Times, A3
Boulos N, McDonnell P (2014) Syrian rebel leader killed. Los Angeles Times, A3
Brennan J (2011) Strengthening our security by adhering to our values and laws. www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an. Accessed 26 May 2014
Byman D (2012) Breaking the bonds between Al-Qa’ida and its affiliate organizations. www.brookings.edu/~/media/research/files/papers/2012/7/alqaida%20terrorism%20byman/alqaida%20terrorism%20byman.pdf. Accessed 26 May 2014
Byman D, Waxman M (2000) Kosovo and the great air power debate. Int Secur 24(4):5–38
Celso A (2012) Al-Qaeda’s post-9/11 organizational strategy: the role of Islamist regional affiliates. Mediterr Q 23(2):30–41
Chakravarty A (2010) Feeding humanity, starving terror: the utility of aid in a comprehensive antiterrorism financing strategy. Western New England Law Rev 32(2):295–338
Chang K (2011) Enemy status and military detention in the war against Al-Qaeda. Texas Int Law J 47(1):1–73
Chellaney B (2001–2002) Fighting terrorism in southern Asia: the lessons of history. Int Secur 26(3):94–116
Chenoweth E, Miller N, McClellan E (2009) What makes terrorists tick? Int Secur 33(4):180–202
Chesney R (2011) Who may be killed? Anwar Al-Awlaki as a case study in the international legal regulation of lethal force. Yearbook Int Humanit Law 13:3–60
Chesney R (2013) Beyond the battlefield, beyond Al-Qaeda: the destabilizing legal architecture of counterterrorism. Mich Law Rev 112(2):163–224
Chesney R (2014) Postwar. Harvard Natl Secur J 5(1):305–334
Corn G (2011) Extraterritorial law enforcement or transnational counterterrorist operations: the stakes of two models. In: Banks W (ed) New battlefields, old laws: critical debates on asymmetric warfare. Columbia University Press, New York, pp 23–44
Corn G, Jensen E (2009) Transnational armed conflict: a “principled” approach to the regulation of counter-terror combat operations. Israel Law Rev 42(1):46–79
Criddle E (2012) Proportionality in counterinsurgency: a relational theory. Notre Dame Law Rev 87(3):1073–1112
Daskal J (2013) The geography of the battlefield: a framework for detention and targeting outside the “hot” conflict zone. Univ Pennsylvania Law Rev 161(5):1165–1234
Deeks A (2012) “unwilling or unable”: toward a normative framework for extraterritorial self-defense. Virginia J Int Law 52(3):483–548
Dinstein Y (2005) War, aggression and self-defence, 4th edn. Cambridge University Press, Cambridge
Eilstrup-Sangiovanni M, Jones C (2008) Assessing the dangers of Illicit networks: why Al-Qaida may be less threatening than many think. Int Secur 33(2):7–44
Farrall L (2011) How Al-Qaeda works: what the organization’s subsidiaries say about its strength. Foreign Aff 90:128–138
Geiß R (2009) Armed violence in fragile states: low-intensity conflicts, spillover conflicts, and sporadic law enforcement operations by third parties. Int Rev Red Cross 91(873):127–142
Gilson R, Mnookin R (1994) Disputing through agents, cooperation and conflict between lawyers in litigation. Columbia Law Rev 94(2):509–566
Glennon M (2010) The fog of law: pragmatism, security, and international law. Woodrow Wilson Center Press, Washington
Goldsmith J (2012) Power and constraint: the accountable presidency after 9/11. Norton and Company, New York
Hakimi M (2012) A functional approach to targeting and detention. Mich Law Rev 110(8):1365–1420
Hoffman B (1998) Inside terrorism. Columbia University Press, New York
Hoffman B (2008) The myth of grass roots terrorism. Foreign Aff 87(3):133–138
Hubbard B (2014) The franchising of Al-Qaeda. New York Times, Sunday Review, 4
Ingber R (2011) Untangling belligerency from neutrality in the conflict with Al-Qaeda. Texas Int Law J 47:75–114
International Committee of the Red Cross (2008) How is the term “armed conflict” defined in international humanitarian law? www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf. Accessed 26 May 2014
International Committee of the Red Cross (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law. www.aco.nato.int/resources/20/Legal%20Conference/ICRC_002_0990.pdf. Accessed 26 May 2014
International Committee of the Red Cross (2011) International humanitarian law and the challenges of contemporary armed conflicts. www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf. Accessed 26 May 2014
International Law Association (2010) Final report on the meaning of armed conflict in International Law
Joscelyn T (2013) Testimony: Al-Qaeda future challenges. United States House of Representatives, Foreign Affairs Committee, subcommittee on terrorism, nonproliferation, and trade. Congressional Quarterly-Roll Call
Karimi F, Carter C (2014) Boko Haram: a bloody insurgency, a growing challenge. www.cnn.com/2014/04/17/world/africa/boko-haram-explainer/. Accessed 28 May 2014
Klaidman D (2012) Kill or capture: the war on terror and the soul of the Obama presidency. Houghton Mifflin Harcourt, Boston
Koh H (2010) The Obama administration and International Law. www.state.gov/s/l/releases/remarks/139119.htm. Accessed 26 May 2014
Koh H (2014) Testimony: hearing of the senate foreign relations committee, authorization for the use of military force after Iraq and Afghanistan. Federal News Service
Kulish N (2012) Despite U.S. fear Hezbollah moves openly in Europe. New York Times, A1
Kydd A, Walter B (2006) The strategies of terrorism. Int Secur 31(1):49–79
Levitt M (2004) Untangling the terror web: identifying and counteracting the phenomenon of crossover between terrorist groups. Sch Adv Int Stud Rev 24(1):33–48
Lewis M (2012) Drones and the boundaries of the Battlefield. Texas Int Law J 47(2):293–314
Luban D (2013) Military necessity and the cultures of military law. Leiden J Int Law 26(2):315–349
Lubell N, Derejko N (2013) A global battlefield? Drones and the geographic scope of armed conflict. J Int Crim Justice 11(1):65–88
Magouirk J (2008) The Nefarious helping hand: anti-corruption campaigns, social services provisions, and terrorism. Terrorism Political Violence 20(3):356–375
Maiangwa B, Uzodike U, Whetho A, Onapajo H (2012) “Baptism by Fire”: Boko Haram and the reign of terror in Nigeria. Africa Today 59(2):40–57
Margulies P (2012a) Advising terrorism: material support, safe harbors, and freedom of speech. Hastings Law J 63(2):455–519
Margulies P (2012b) The fog of war reform: change and structure in the law of armed conflict after September 11. Marquette Law Rev 95(4):1417–1489
Margulies P (2013) Valor’s vices: against a state duty to risk forces in armed conflict. In: Banks W (ed) Counterinsurgency law: new directions in asymmetric warfare. Oxford University Press, Oxford, pp 87–107
Martin C (2012) Going medieval: targeted killing, self-defense and the jus ad bellum regime. In: Finkelstein C, Ohlin JD, Altman A (eds) Targeted killings: law and morality in an asymmetrical world, Oxford University Press, Oxford, pp 223–252
McNeal G (2012) Are targeted killings unlawful: a case study in empirical claims without empirical evidence. In: Finkelstein C, Ohlin J, Altman A (eds) Targeted killings: law and morality in an asymmetrical world. Oxford University Press, Oxford, pp 326–346
Miller G, Gearan A, Raghavan S (2013) U.S. authorized series of drone strikes in Yemen. Washington Post, A1
Morris L, DeYoung K (2013) Rebel leader is killed in Syria. Washington Post, A1
Mueller J, Stewart M (2012) The terrorism delusion: America’s overwrought response to September 11. Int Secur 37(1):81–110
Newton M (2009) Exceptional engagement: protocol I and a world united against terrorism. Texas Int Law J 45(2):323–375
Novak J (2009) Arabian peninsula Al-Qaeda groups merge. www.longwarjournal.org/archives/2009/01/arabian_peninsula_al.php. Accessed 26 May 2014
O’Connell M (2012) Unlawful killing with combat drones: a case study of Pakistan, 2004-2009. In: Bronitt S, Gani M, Hufnagel S (eds) Shooting to kill: socio-legal perspectives on the use of lethal force, Oxford University Press, Oxford, pp 263–292
Ohlin J (2012) Targeting co-belligerents. In: Finkelstein C, Ohlin J, Altman A (eds) Targeted killings: law and morality in an asymmetrical world. Oxford University Press, Oxford, pp 60–89
Ohlin J (2013) The duty to capture. Minnesota Law Rev 97(4):1268–1342
Paulus A, Vashakmadze M (2009) Asymmetrical war and the notion of armed conflict—a tentative conceptualization. Int Rev Red Cross 91(873):95–125
Paust J (2010) Self-defense targetings of non-state actors and permissibility of U.S. use of drones in Pakistan. J Trans Law Policy 19(2):237–280
Pejic J (2011) The protective scope of common article 3: more than meets the eye. Int Rev Red Cross 93(881):189–226
Pressman J (2007) Rethinking transnational counterterrorism: beyond a national framework. Washington Q 30(4):63–73
Preston S (2014) The framework under U.S. law for current military operations. United States Senate Committee on Foreign Relations. www.foreign.senate.gov/imo/media/doc/Preston_Testimony.pdf. Accessed 28 May 2014
Putnam R (1988) Diplomacy and domestic politics: the logic of two-level games International Organizations, 42(3):427–460
Roese N (2004) Twisted pair: counterfactual thinking and the hindsight bias. In: Koehler D, Harvey N (eds) Blackwell handbook of judgment and decision making. Blackwell Publishing, Malden, pp 258–273
Rona G (2012) US targeted killing policy unjustified. www.jurist.org/hotline/2012/02/gabor-rona-targeted-killing.php. Accessed 26 May 2014
Sageman M (2008) Leaderless Jihad: terror networks in the twenty-first Century. University of Pennsylvania Press, Philadelphia
Sawyer R, Foster M (2008) The resurgent and persistent threat of Al-Qaeda. Ann Am Acad Polit Soc Sci 618:197–211
Scheppele K (2010) The international standardization of national security law. J Nat Secur Law Policy 437–453
Schmitt E (2012) Petraeus says U.S. tried to avoid tipping off terrorists after Libya attack. New York Times, A10
Schmitt M (2010) Deconstructing direct participation in hostilities: the constitutive elements. New York Univ J Int Law Politics 42(3):697–739
Schmitt M (2011) The status of opposition fighters in a Non-international armed conflict International Law studies 88:119–144
Schmitt M (2012) Unmanned combat aircraft systems and International Humanitarian Law: simplifying the oft benighted debate. Boston Univ Int Law J 30(2):595–619
Schmitt M (2013) Extraterritorial lethal targeting: deconstructing the logic of International Law. Columbia J Trans Law 52(1):77–112
Sergie M (2014) Boko Haram. www.cfr.org/nigeria/boko-haram/p25739. Accessed 28 May 2014
Setty S (2010) Comparative perspectives on specialized trials for terrorism. Maine Law Rev 63(1):131–174
Shapiro J, Siegel D (2012) Moral hazard, discipline, and the management of terrorist organizations. World Polit 64(1):39–78
Sinno A (2011) Armed groups’ organizational structure and their strategic options. Int Rev Red Cross 93(882):311–332
Sivakumaran S (2012) Command responsibility in irregular groups. J Int Crim Just 10(5):1129–1150
Slobogin C (2003) A jurisprudence of dangerousness. Northwest Univ Law Rev 98(1):1–62
Sly L (2013) Al-Qaeda’s Iraq affiliate expands presence in Syria. Washington Post, A1
Staniland P (2012) Organizing insurgency: networks, resources, and rebellion in South Asia. Int Secur 37(1):142–177
Townsend F (2006) 10 Ways to avoid the next 9/11: the President’s plan. New York Times, Section 4, 13
UN Human Rights Council (2012) Report of the independent International Commission of Inquiry on the Syrian Arab Republic, 2012. UN Doc. A/HRC/21/50
UN Human Rights Council and Alston P (2010) Report of the special rapporteur on extrajudicial, summary or arbitrary executions: study on targeted killings, 2010. UN Doc. A/HRC/14/24/Add.6
US Department of Justice White Paper (2013) Lawfulness of a lethal operation directed against a U.S. citizen who is a senior operational leader of Al-Qa’ida or an associated force. http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf. Accessed 28 May 2014
US Senate Armed Services Committee (2013) The law of armed conflict, the use of military force, and the 2001 authorization for use of military force. Federal News Service
Walzer M (1977) Just and unjust wars: a moral argument with historical illustrations. Basic Books, New York
Watkin K (2010) Opportunity lost: organized armed groups and the ICRC “Direct participation in hostilities” interpretive guidance. New York University J Int Law Polit 42(3):641 (et seq)
Watkin K (2011) “Small wars”: the legal challenges. Int Law Stud 88:3–12
Waxman M (2010) The structure of terrorism threats and the laws of war. Duke Comp Int Law 20(3):429–455
Webster D (1841) Letter to Henry Fox, British minister in Washington. http://avalon.law.yale.edu/19th_century/br-1842d.asp#web1. Accessed 28 May 2014
Williams P (2008) Terrorist financing and organized crime: nexus, appropriation, or transformation? In: Biersteker T, Eckert S (eds) Countering the financing of terrorism. Routledge, Abingdon, pp 126–149
Winer J (2008) Countering terrorist finance: a work, mostly in progress. Ann Am Acad Polit Soc Sci 618:112–132
Zawacki B (2013) Politically inconvenient, legally correct: a non-international armed conflict in southern Thailand. J Conflict Secur Law 18(1):151–179
Zenn J (2014) Boko Haram’s international connections. www.ctc.usma.edu/posts/boko-harams-international-connections. Accessed 28 May 2014
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 T.M.C. Asser Press and the authors
About this chapter
Cite this chapter
Margulies, P., Sinnot, M. (2015). Crossing Borders to Target Al-Qaeda and Its Affiliates: Defining Networks as Organized Armed Groups in Non-International Armed Conflicts. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_12
Download citation
DOI: https://doi.org/10.1007/978-94-6265-038-1_12
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-037-4
Online ISBN: 978-94-6265-038-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)