Using Law to Fight War

Recent challenges in international security posed by two terrorist organizations, Al Qaeda and the Islamic State of Iraq and Syria (ISIS), have highlighted an urgent domestic and foreign policy challenge, namely, how to address the threat posed by violent non-state actors while adhering to the rule of law values that form the core of democratic governance. In view of the seriousness of the security threat these organizations pose, combating violent extremism has become the highest national security priority among the U.S. and its allies in recent years.  Yet the legal framework for conducting operations of this magnitude against non-state actors has never been clearly identified.  In order for war to be constrained by law, the rules by which all parties engage must be publicly known, clearly articulated, and consistently applied. Legal scholars and policymakers, however, have had difficulty adapting existing legal frameworks, which focus on relations among states, to the new demands on military practice, a problem made worse by the rapidity of the changes within contemporary armed conflict. With the current project, the Center for Ethics and the Rule of Law (CERL) seeks to sharpen the understanding of policymakers and academics regarding the status of non-state actors under the Law of Armed Conflict (LOAC), and to contribute to the clarification, articulation, and dissemination of a common legal and ethical framework to guide military and political leaders in asymmetric conflict.

LOAC is organized around the assumption that parties to an armed conflict are “combatants,” meaning that they are members of a state military acting in the name of that state.  Norms of conduct are unclear with regard to non-state actors, and there are few consistent legal principles to provide guidance.  The absence of a clear alternative to traditional law of war principles, coupled with the need for a strong defensive response to the threat of terrorism, has a deleterious effect on the maintenance of rule of law values in the current climate, and may also hinder efforts to carry out such a defensive response effectively.  

At present the range of options to address the problem of non-state actors under International Humanitarian Law (IHL) is rather limited:  the response thus far has been nearly entirely of a military nature, where the model of military intervention itself takes the form of traditional state-based conflict.  Non-state actors like members of ISIS and Al-Qaeda, however, are not agents of an organized state-run military.  Under traditional principles of LOAC, they are more like civilians engaged in criminal activity than like combatants in the traditional sense.  Yet there has been little exploration of whether enforcement of criminal law norms might be an effective alternative or adjuvant to high level military intervention.  This project seeks to assess the promise of novel legal alternatives in fighting international terrorist organizations, with the aim of developing, disseminating, and helping to implement such policy alternatives.  

A prominent alternative to top-down military action is provided by the domestic criminal law paradigm involving multi-state cooperation, such as the U.S. has previously employed in the War on Drugs. A significant obstacle to this model lies in the absence of a legal basis for crossing national boundaries of co-equal sovereign states for law enforcement purposes.  Efforts to do so are often opposed as violations of international sovereignty. Nor can domestic law enforcement act with the speed and widespread coordinated effort among other nations to accomplish threat reduction on the level that Al Qaeda and ISIS make necessary. CERL’s current project proposes to explore whether an international criminal law framework can provide a viable alternative to both the military and the domestic law frameworks, or whether an integrated international criminal law and military collaboration might be envisioned to address these challenges.  

A number of subtopics will structure the conference. These include clearly identifying and examining the following: the problems posed by non-state actors in international security and the rule of law, the drawbacks of attempting to fit such cases into a traditional military framework and just war paradigm, the challenges raised by domestic prosecutions, the possibility and limits of trying non-state actors at the International Criminal Court, the limits and weaknesses of the ad hoc tribunal model, the precedents set by and lessons to be learned from the military court model, and the promise of using successful international collaborations addressing terrorist networks, along with the legal frameworks applied in such instances, as a model to confront other international law enforcement challenges. The precedent of civil legal action against violent non-state actors will also be considered, using the Klinghoffer family’s lawsuits against the Palestinian Liberation Organization, following the murder of Leon Klinghoffer aboard the PLO-hijacked Achille Lauro cruise liner, as a case study. CERL approaches these topics against the backdrop of an additional challenge, namely the fragility of the US’s credibility internationally as a leader and a force for shaping norms, following what many see as American violations of the rule of law leading up to and succeeding the US invasion of Iraq in 2003. The military court model may have contributed to this perceived diminution of US legitimacy as well as impaired the ability of the U.S. to provide moral leadership internationally, and this too is topic CERL will address.  

Additionally, both jurisdictional and substantive legal issues are raised by the prosecution of non-state actors. For example, what law applies to a non-state actor that is persecuting individuals of many nationalities or ethnicities?  This falls outside the rubric of current international law. Would international law need to be interpreted in a new manner to allow the prosecution of an entity like ISIS, or would new laws, a new code, have to be drafted?  These questions prompt not only an examination of extant efforts to investigate and prosecute non-state actors but also the need for thinking outside of the well-worn pathway of military action from a distance.  Recent efforts at fighting ISIS, for example, have focused on disrupting its funding apparatus.  ISIS has had widespread success in financing its operations through unlawful activity: through the seizure of oil fields, the looting of antiquities, and the subsequent black market sales of seized oil and artifacts.  What framework is likely to be most effective—pragmatically, ethically, and legally—for tracing and disrupting the funding operations of non-state actors like ISIS?

The ultimate goal of Using Law to Fight Terror is to enhance the effectiveness of our current approach by (a) exploring the merits of different frameworks for responding forcefully to the threats posed by non-state actors while remaining constrained by ethical principles and rule of law values; (b) identifying the current challenges that confront us in our current reliance on military action; and (c) identifying alternative approaches to the security threat posed by non-state actors, ones developed within a legal framework, though perhaps implemented with military aid to civilian authorities.  CERL will bring together a wide and prominent group policymakers, highly placed military leaders, and scholars from a wide variety of different disciplines to collaborate in the development and implementation of strategic complements to current military practice in confronting violent non-state actors.

This event is co-sponsored by the Perry World House, the University of Pennsylvania’s new university-wide hub for international activities, the University of Pennsylvania’s Center for Advanced Research in Global Communication, the University of Pennsylvania’s Penn Global program, and The Carol and Lawrence Zicklin Center for Business Ethics Research at the Wharton School.