International Law: LOAC

The United States as a Party to an AQAP-Specific Armed Conflict in Yemen

By Robert Chesney
Tuesday, January 31, 2012, 10:34 AM

Drone strikes in Yemen raise important questions regarding the field of application of International Humanitarian Law (IHL), the extraterritorial applicability of International Human Rights Law (IHRL), and the proper approach to norm reconciliation should both IHL and IHRL apply simultaneously.  That first question--whether IHL applies to strikes in Yemen--tends to be framed in one of two ways.  First, some focus on whether there is a sufficient nexus with circumstances of armed conflict in Afghanistan, which is a rather tall order.  Second, some focus on whether there is a sufficient nexus with al Qaeda, leading to fact-sensitive inquiries into the relationship between al Qaeda and AQAP.  What one does not see all that often is a Yemen-specific, stand-alone analysis of whether (i) circumstances of armed conflict exist in Yemen itself (regardless of what may be the case in Afghanistan or elsewhere) and (ii) the United States is a party to such a conflict (regardless of what may be the case elsewhere or in relation to entities other than AQAP).  That's too bad, I think.  [Update: I was asked offline whether I mean by this post to suggest that I agree that the only way to justify bringing IHL to bear on the strikes in Yemen is to demonstrate US and AQAP involvement in a Yemen-specific NIAC.  The answer is no.  I'm merely raising this as an argument in the alternative, and am not trying to weigh in here on the more familiar debates regarding the idea of a transnational armed conflict involving al Qaeda.]  [2nd update: Several readers have drawn my attention to an on-point article from Benjamin Farley, which I've not yet read but am looking forward to looking over - it is posted here.]

I don't intend to provide a comprehensive analysis of the Yemen-specific line of argument here, but do hope to spur a bit of debate about it.  As to (i), the level of violence as between AQAP and government forces in Yemen has been relatively high for a relatively long period, and that AQAP not only has a substantial organizational structure but actually now occupies no small amount of territory.  That leads me to think that there are indeed circumstances of armed conflict in Yemen (which I would categorize as a NIAC).  Meanwhile, as to (ii), the U.S. has not merely provided various forms of assistance to the government of Yemen in its fight with AQAP, but also has attacked AQAP targets in Yemen in its own right at least seventeen times over the past few years, including a strike yesterday.  I think the better view, then, is that we are party to the Yemen NIAC, and that our uses of force there implicate IHL as a result (quite apart from arguments about the existence and geographic scope of conflict elsewhere or with respect to other entities).  If others disagree, I'd be happy to post counterarguments.