Amid the flurry of writing about the White Paper’s approach to “imminence” – an important conversation, to be sure – little attention has been paid to a paragraph in the White Paper that seems to establish new parameters for the geographic scope of the U.S. conflict with al Qaeda (AQ). The White Paper states that if an operation against an American senior operational leader of AQ or associated forces “were to occur in a location where al-Qa’ida or an associated force has a significant and organized presence and from which al-Qa’ida or an associated force, including its senior operational leaders, plan attacks against U.S. persons and interests, the operation would be part of the non-international armed conflict between the United States and al-Qa’ida . . . .”
That is, the United States seems here to suggest that it will only consider AQ activity in State X to be part of the larger non-international conflict with AQ – and thus potentially render targetable those members of AQ present in State X – when (a) AQ has a significant and organized presence in State X; (b) AQ members are planning attacks from within State X; and (c) the attacks that they are planning are directed against U.S. persons and interests.
I suppose that if someone asked Lawfare readers to put their heads together to develop characteristics that AQ activity in Yemen, Pakistan, and Somalia had in common, readers would have come up with something along the lines of (a)-(c). But these three requirements serve as yet another set of hoops that the United States concedes that it must jump through (on top of the sovereignty-related “consent or unwilling/unable” test) before it will use force in a particular country against AQ members or associated forces. For instance, this approach would rule out targeting Zawahiri using an armed conflict theory if he were to travel alone to South Africa. (It might leave open a naked self-defense action against him, however.)
One could view this “test” as an assertion of the state of the law on the geography of NIACs, a rule that some will see as challenging the Tadic approach. On the other hand, the U.S. government apparently did not intend this document to become public, which raises interesting questions about whether “secret” state practice can ever count toward the formation of new rules of international law. And it may be that this discussion in the Paper is not a holistic attempt to wrestle with potential fact patterns not before it. On its face, though, this part of the Paper arguably articulates a new set of requirements that the United States thinks it must meet before using force against AQ under a NIAC theory in a particular country.