Crossing Borders to Target Al-Qaeda and Its Affiliates: Defining Networks as Organized Armed Groups in Non-International Armed Conflicts

Abstract

Al-Qaeda's dispersal and the rise of regional terrorist groups such as Al-Shabaab in Somalia have raised the stakes for defining an "organized armed group" (OAG). If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity's violence. Both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. Illustrating this organizational turn, a transnational network like Al-Qaeda operates in a synergistic fashion with regional groups. Moreover, recent news reports have suggested that current Al-Qaeda leader Dr. Ayman al-Zawahiri has attempted to assert operational control over the specific targeting decisions of Al-Qaeda affiliates, although that effort has not been uniformly successful. Furthermore, while Al-Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders. In addition, the doctrine of co-belligerency, borrowed from neutrality law, provides a basis for targeting that is not confined by state boundaries. Even when 319 these indicia are absent, individuals within non-Al-Qaeda groups may be targetable if they engage in coordinated activity with Al-Qaeda.

Harvesting vulnerability: The challenges of organ trafficking in armed conflict

“…149 Organ trafficking networks do not have a hierarchical structure, but the lack of a rigid hierarchy is not dispositive of the existence of an OAG. 150 For instance, the ICTY considered the KLA to be an OAG, operating underground, notwithstanding its apparently horizontal command structure. 151 In fact, the majority of non-State armed groups today, including terrorist groups such as IS, operate as networks rather than centralized armed groups with a strict hierarchy and a clear command and control structure.…”

Sanctioning International Terrorist Organizations (ITOs): The Changing Paradigm of International Legal Personality?

“…90 According to Margulies and Sin-not, in many of these countries Al-Qaida displays a mix of organizational forms in its relationships with affiliated groups, while its core remains in Pakistan. 91 Among these groups there are, for example, Al-Qaida in the Arabian Peninsula (AQAP) which operates primarily in Yemen, Al-Qaida of the Islamic Maghreb (AQIM), Al-Shabaab in Somalia, Jabhat al Nusra and ISIS in Syria, Boko Haram in Nigeria, Gama al-Islamiya in Egypt, etc. 92 Hence, it comes as no surprise that the UNSC sanctions against terrorism in the 21st century have changed their targets.…”