The real reason war and strategy types don’t make good comedians:
Q: When is a war not a war?
A: When it is a transnational armed conflict between a state and a non-state actor conducted in the territory of a third party state without the physical contestation of said terrain.
(I dunno, maybe that would have them rolling in the aisles of ISA or something)
The reason I mention this is that the American Civil Liberties Union filed suit a couple of days ago for the deaths of three American citizens. The ACLU’s case effectively relies upon two axioms: 1) the United States is not engaged in an armed conflict in countries such as Yemen and 2) Even if the United States was at war, people like Anwar al-Awlaki weren’t directly participating in hostilities, which legitimates their targeting. Robert Chesney has an interesting response, which is that conflict exists between AQAP and Yemen, to which the United States is a party to. This is a short re-statement of his earlier work.
What I find interesting about all this is the increasing attempts to legally define and delineate the existence of war and conflict beyond the type we’re “used to”. In particular, I think the ACLU suit should be a big heads up for anyone thinking about cyberwar or other concepts. The question appears to turn on whether war exists outside the paradigm of physical contestation. Conceptually, Clausewitz relies upon this idea – war is “nothing but a duel on a grander scale” made up of countless duels. But can this grander duel exist when there are no individual duels? Let’s face it, the use of force in asymmetric warfare/terrorism/etc tends towards the unfair, and the unstoppable. The ‘perfect’ strikes and operations are ones that involve no harm or risk to the operator, or at the very least are conducted with surprise that renders any physical encounter between the parties almost pre-determined. Targeted killings, terrorist attacks, suicide bombings, IEDs, airstrikes and kill/capture raids all involve a small amount of risk, but share the fact that they can’t be considered a “duel” by any stretch of the imagination, at least not in the sense that Clausewitz would have thought of it.
I’m not arguing against Clausewitz here (all the war is the continuation of politics bit at least), rather, I think it is important to consider that both his work, and the legal treaties that govern war both contain the assumption that war requires direct physical contest between two parties, rather than two parties using physical force against one another as part of a conflict between the two. The ACLU’s suit appears to consider that the lack of direct physical contest negates the existence of a conflict, which leads to all sorts of absurdities. For instance, if two states were to consider themselves as being at war with one another, yet mutually conduct it by means of sporadic long range missile attacks, we would have no problem considering a state of war (or international armed conflict) as occurring, though I’m sure many eyebrows would be raised as to why they chose to conduct war in such a manner. The problem, as it stands, is that the Executive branch (and Congress, via the Authorization for Use of Military Force) consider the United States as being at war with al-Qaeda, and al-Qaeda has a pretty good track record of considering itself as being at war with America (as part of a bigger conflict etc etc). On the other hand, the ACLU considers that war/armed conflict doesn’t exist between the two. In this, the ACLU are joined by persons such as Mary O’Connell and Philip Alston who consider that there exists some form of objective criteria for defining the existence of a war or conflict. I am wholly skeptical about this proposition. We can ‘know’ war when we see it, as long as what we see conforms to our idea of war, but the idea that war must be fought according to pre-conceptions (such as intensity or physical contestation of terrain) is bogus. Although the ACLU is no doubt using ‘armed conflict’ in its legal sense, I have no doubt that the American government’s response will be ‘conflict exists’, and the question will therefore boil down to how one defines and identifies a conflict, which essentially relates to what one considers war to be.* As much as I would like to see the ACLU’s evidence and argument that war doesn’t exist between America and AQAP, I doubt it will get that far. Still, it would be entertaining for Clausewitz to get quoted in court.
*The fundamental problem here is that critics consider that conflict is defined in law, and therefore uses of force not defined in law are not conflicts and thus illegal, whereas the American govt plus legal scholars who consider targeted killings legal tend to work on the basis of a conflict existing, and whether this conflict can be justified/legalised within the legal frameworks applicable to conflict. For a free-to-view round up of a few of the opposing arguments, see O’Connell, Anderson, Alston and Radsan and Murphy.