Crossing borders to target Al-Qaeda and its affiliates: Defining networks as organized armed groups in non-international armed conflicts

• Published in: Yearbook of international humanitarian law Vol. 16; pp. 319 - 345
• Main Authors: Peter Margulies, Matthew Sinnot
• Format: Journal Article
• Published: Springer 01.07.2013
• Subjects: Boko Haram; International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991; Just war doctrine; Prevention; Qaida (Organization); Terrorism; Terrorist organizations
• ISSN: 1389-1359
• DOI: 10.1007/978-94-6265-038-1_12

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.