Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaeda, and the Limits of the Associated Militia Concept

Abstract

In response to the terror attacks of September 11th, 2001, the United States launched Operation Enduring Freedom to disable al Qaeda capabilities in Afghanistan and to oust the Taliban regime that provided safe haven to al Qaeda. This military operation triggered a flurry of debate over the proper legal classification for this armed conflict. Although the United States initially asserted the conflict was not international in character because Afghanistan was a failed state, it ultimately reversed this position and acknowledged that at least with respect to Taliban forces it was engaged in an international armed conflict. However, the classification of the conflict against al Qaeda in Afghanistan remained unclear. While most experts did then and continue to assert that operations directed against al Qaeda are subsumed within the broader armed conflict against Afghanistan, the United States never expressly adopted this proposition. Instead, the decisions related to the status of captured al Qaeda personnel indicated that the United States considered the conflict between it an al Qaeda distinct from the conflict with the Taliban.This article will consider the viability of this bifurcated armed conflict approach to operations in Afghanistan, and will challenge the assumption that the geographic continuity of military operations against the Taliban and al Qaeda in Afghanistan mandate that these armed conflicts be treated as unitary. This challenge will be based on two primary arguments. First, that it is conceptually possible for the United States to engage in a distinct non-international armed conflict with al Qaeda. Second, that the spirit and purpose of the associated militia provisions of the law of armed conflict do not automatically justify a unitary conflict conclusion for al Qaeda forces in Afghanistan simply because operations of these forces were geographically and at times tactically contiguous with operations of Taliban forces. The article will conclude by considering why characterizing military operations directed against transnational terrorist groups like al Qaeda as armed conflict is a more legitimate and pragmatic approach to the legal regulation of such operations than denying such operations are armed conflicts and instead characterizing them as extraterritorial law enforcement operations.