JURIST Guest Columnist Laurie R. Blank of Emory Law’s International Humanitarian Law Clinic says that defining where the so-called “war on terror” is being fought is an important task, and that while traditional frameworks fail to give adequate guidance, there are certain criteria that can provide for more than an ad hoc approach…

The furor over the potential targeted killing of Anwar al-Aulaqi, the latest hot-button issue in the so-called “war on terror,” has sharpened the debate on two key questions: who constitutes an enemy in this conflict and against whom can lethal force be used as a first resort?

Who and how are critically important questions that impact not only the use of force, but detention, trial and a host of other questions. There is another question, however – where. In a broader sense, if the U.S. is in an armed conflict with al Qaeda and other terrorist groups, where can it conduct this armed conflict? In essence, the question is whether an al Qaeda operative carries the battlefield in his rucksack, so to speak, as he moves around the world.

Identifying where the battlefield is in this war against terrorist groups has been ignored or, at best, addressed in an ad hoc way so far. The U.S. is fighting al Qaeda and the Taliban with military force in Afghanistan and in Pakistan. It has launched drone attacks in Somalia and Yemen, areas now sometimes identified as potentially the newest battlefields in the “war on terror.” Elsewhere, however – particularly in Europe and on its own territory – the U.S. uses a law enforcement approach of arrest, deportation or extradition, investigation, and trial.

We have heard talk of a “global war on terror,” but actual practice suggests that there are in fact areas that fall within a “battlefield” in this war and areas that remain outside it. Just like we need clear criteria for detention and trial to ensure faithful protection of individual rights while protecting national security, so clear standards are essential in defining the battlefield as well.

Ad hoc decisions about where we can fight terrorists with force can lead to policy paralysis or even mistakes. Mistakes in this arena mean innocent civilian casualties or perhaps a terrorist attack undeterred. Standards, in contrast, create clear frameworks for the lawful use of force where appropriate in accordance with legal and policy obligations.

Some argue we can use force against terrorists only in Afghanistan, because that is where we are in an armed conflict with al Qaeda and the Taliban. Outside that, we need to rely on the law enforcement capabilities of other states to help arrest, detain and try alleged attackers. This seems perhaps too narrow – in effect, an al Qaeda terrorist who is a legitimate target of attack in Afghanistan suddenly becomes immune from attack simply by walking across the border, even though the danger he poses to innocent civilians and U.S. national security interests has not changed.

Others argue that this is a global war, meaning that terrorists can be attacked wherever in the world they are found. Enticing at first, perhaps, until we consider the possibilities of launching drone attacks in Des Moines, Paris or Oslo. Surely more than a few eyebrows will be raised at the notion that a single terrorist in a city far removed from any conflict, uninvolved in any terrorist activity and unconnected to any terrorist campaign or group is justification for a missile attack.

Defining the battlefield – or the zone of combat, to use a new term – is thus critical to understanding where the U.S. can use force as a first resort and alternatively where law enforcement options are the appropriate tool. At stake are not only the lives of the innocent victims of terrorist attacks that could have been prevented, but also the rights of alleged terrorists and the unintended victims of military attacks.

Classical international legal frameworks fall short in defining the parameters of the battlefield. The law of neutrality defines the battlespace in an international armed conflict as all areas where the forces of belligerent parties meet outside of neutral territory. Modern international jurisprudence emphasizes broad geographical and temporal parameters – as in the Tadic case – to ensure the widest protection possible for persons engaged in conflict or caught up in the conflict zone.

Trying to translate these concepts to today’s conflict with terrorist groups leaves us no closer to a workable framework: the conflict is not an international armed conflict, the law of neutrality neither applies nor offers a useful analogy, and focusing solely on broad parameters leaves us with a global battlefield unfettered by geographical or temporal boundaries on the use of force. Indeed, humanitarian law’s fundamental principle of protection of civilians weighs heavily in favor of keeping the battlefield away from as many civilians as possible.

Another option, then, is to look for factors that can help define the battlefield, or zone of combat, to create a framework for analysis and future action. Three key criteria in particular are helpful.

First, we can look at the nature of the terrorist attacks in question. Areas where they more closely mirror wartime hostilities and occur on a regular basis can be considered more closely linked to the battlefield.

Second, the government response to attacks or to the presence of terrorists is telling. Areas where the state regularly responds with military force have a closer connection to a battlefield than areas where the state relies on law enforcement tools.

Finally, the way terrorist groups use certain areas in a regular or extended way can link that territory to the battlefield as well, either through the reliance on safe havens, establishment of training camps and command posts, and the launching of regular attacks.

The absence of clear articulated standards for who and how we fight in this struggle against terrorism has been highly problematic. Failing to explore and identify parameters for where we can fight as well can pose similar challenges because individual rights will inevitably bear the brunt of an ad hoc approach.

Laurie R. Blank is the Director of Emory Law’s International Humanitarian Law Clinic.

Suggested citation: Laurie R. Blank, Where is the Battlefield in the ‘War on Terror’? The Need for a Workable Framework, JURIST – Forum, Dec. 1, 2010, http://jurist.org/forum/2010/12/where-is-the-battlefield-in-the-war-on-terror-the-need-for-a-workable-framework.php.