How to End the Forever War

By Harold Hongju Koh

From both the left and the right, three common misperceptions have emerged about US foreign policy: First, that the Global War on Terror has become a perpetual state of affairs; second, that no strategy is available to end this conflict in the near future; and third, that "the Obama approach to that conflict is just like the Bush approach." I disagree with all three propositions.

First and most important, the overriding goal should be to end this Forever War, not engage in a perpetual "global war on terror," without geographic or temporal limits.

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Second, this is not a conflict without end, and there is a strategy to end it, outlined below. In November, also at the Oxford Union, Jeh Johnson, then general counsel of the United States Department of Defense, argued that in the conflict against Al Qaeda and its affiliates:

"there will come a tipping point - ... at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed. At that point, we must be able to say to ourselves that our efforts should no longer be considered an "armed conflict" against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda...."

The key question going forward will thus be whether the US treats new groups that rise up to commit acts of terror as "associated forces" of Al Qaeda with whom it's already at war. This seems unwise, as under both domestic and international law, the United States has ample legal authority to respond to new groups that would attack without declaring war forever against anyone hostile to the country. More fundamentally, the United States is at war with Al Qaeda, not with any idea or religion, or with mere propagandists, journalists or sad individuals, like the recent Boston bombers, who may become radicalized, inspired by Al Qaeda's ideology, but never joining Al Qaeda itself.

Third, in regard to this conflict, the Obama administration has differed from its predecessor in three key respects. First, it has acknowledged that the United States is strictly bound by domestic and international law. Under domestic law, the administration has acknowledged that its authority derives from Acts of Congress, not just the president's vague constitutional powers. Under international law, this administration has expressly recognized that US actions are constrained by the laws of war, and it has worked hard to translate the spirit of those laws and apply them.

The Geneva Conventions envisioned two types of conflict - international armed conflicts between nation-states and non-international armed conflicts between states and insurgent groups within a single country, for example, a government versus a rebel faction located within that country. But September 11 made clear that the term "non-international armed conflicts" can also include transnational battles, for example, between a nation-state like the United States and a transnational non-state armed group like Al Qaeda that attacks it. The US Supreme Court has instructed the US government to translate the existing laws of war to this different type of "non-international" armed conflict.

Second, in conducting this more limited conflict, the administration has shown an absolute commitment to humane treatment of Al Qaeda suspects. Third, the Obama administration has determined not to address Al Qaeda and the Taliban solely through the tools of war. Instead, this administration has stated a longer-term objective - a "smart power" approach - under which force is used for limited and defined purposes within a much broader nonviolent frame, with the over-arching aim being to use diplomacy, development, education and people-to-people outreach to challenge Al Qaeda's ideology and diminish its appeal. Applying this approach, the Obama administration has combined a law-of-war approach with law-enforcement methods to bring all available tools to bear against Al Qaeda. In a remote part of Afghanistan, a law-of-war approach might be appropriate, but in London or New York, a law enforcement approach is surely more fitting. In either case, the US response to a suspect turns not on whether we generically label a person an "enemy combatant," but on whether we assemble the facts to prove that a particular person's behavior reveals that he is part of Al Qaeda.

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Harold Hongju Koh is Sterling Professor of International Law and former dean (2004-09), Yale Law School; former legal adviser, US Department of State (2009-13); former assistant secretary of state for democracy, human rights and labor (1998-2001). This essay is a condensed and edited version of a speech to the Oxford Union on May 7, 2013, and reflects his personal views, not that of any institution of which he is or has been affiliated.

© 2013 Yale Center for the Study of Globalization

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