Undermining International Law

U.S Policy on Negotiations

By Maura McQuade

On September 20, 2001, United States President George W. Bush declared war on global terrorism in reaction to the largest attack on U.S. soil since the country’s independence. The declaration launched the country into a new type of warfare, fought not against a sovereign state and not bound by the confines of international borders. As a result, this new type of conflict has demanded a reexamination of many U.S. policies, specifically the country’s principal to refrain from negotiating with terrorist organizations.

Since the commencement of the War on Terror the accuracy of the country’s policy on non-negotiation has come under increasing scrutiny. Despite its statements, the U.S. has negotiated with states that have sponsored terrorism, individual perpetrators, and internationally recognized terrorist groups. Bruce Hoffman, Director of Georgetown University’s Center of Security Studies, insists, “The refrain ‘we do not negotiate with terrorists’ is repeated as a mantra more than a fact. Since the War on Terror began, the lack of clear action to support this rhetoric has been undeniable” (Gomez). By continuing to support the stance in official policy, however, the U.S. is forced to conduct the transactions in secretive and nonpublic avenues. Rather than upholding an image of strength against terrorist ideology, this only serves to lessen American credibility in an international setting.

Almost fourteen years after President Bush’s declaration, the United States must acknowledge that the creation of a world where one should negotiate with belligerent nation states but not with other forms of opposition is an unfeasible one. Mediation and negotiation have been necessary since the beginning of modern warfare and are even more crucial as the stakes of armed conflict and violent global destruction rise. The very basis of the international ideology that the U.S. champions today demands the recognition and acknowledgement of the opposition and their causes, diplomatic efforts of cultural and ideological understanding, and negotiation to resolve conflict as peacefully as possible. The United States must merge its allegiance to negotiations and diplomacy with the acknowledgement that a new era of warfare is conducted against terrorist groups: a policy demanding non-negotiation and inaction ultimately fails to recognize the nature of 21st century conflict.

A Rise of International Law, Global Negotiations and International Diplomacy

Peaceful international diplomacy is the core of foreign relations in a post-WWII world. Without mutual understanding and recognition, the increasingly-connected global community is unstable. In the last century, a push for peaceful negotiations, conflict analysis and mediation have attempted to quell violence and broker peace treaties around the world.

The fundamentals of successful negotiation encompass an ultimate goal of limiting violence and suffering, and increasing mutual understanding. Negotiation and resolution provide an opportunity for conflicting parties to voice concerns, to list goals or demands in a peaceful setting, and to attempt to find a lasting solution. Negotiation is therefore a key component of all armed conflict. American columnist Michael Tomasky notes the importance and regularity of negotiation to return combatants held by the opposing side in warfare: Prisoners of war, or hostages, “are returned, usually at war’s end but sometimes before, through a process of negotiation. It’s been this way since warfare began. And aside from prisoner exchanges, there is of course the matter of ending hostilities in the first place. That also must be negotiated” (Tomasky). International law and diplomacy encourage negotiation and an end to violence, a view which stands in opposition to current American policy on terrorism. In speaking of the Taliban, Tomasky observes “the conundrum of illogic that [is] created: the Taliban are both an enemy combatant with which we absolutely must negotiate, and a terrorist group with which we absolutely must not negotiate” (Tomasky). The issue is not only a policy conundrum, but an unstable and dangerous failure to uphold a singular foreign policy. In a modern era where weapons are easily accessible, civilian casualties are outnumbering combatants, and hostage-taking is a common occurrence, a policy of non-negotiation with terrorist organizations is unfeasible and serves to only encourage more violence.

Changing Warfare

London School of Economics Professor Mary Kaldor first mentioned the term New War in 1999 in categorizing contemporary conflict’s deviations from Traditional Warfare. “New Wars,” she wrote, “are the wars of the era of globalization. In such contexts, the distinction between state and non-state, public and private, external and internal, economic and political and even war and  peace are breaking down” (Kaldor). Modern tactics and new military technology have changed the way that armed conflict is conducted, increasing the frequency of intrastate violence in the modern era.

Due to these changes, many conflicts are fought between forces that are not internationally bound by the same rules as sovereign states. They are not signatories themselves to international legal documents and as a result are not held accountable in the same way.  The key to implementing effective conflict resolution in this setting must first be to recognize and agree upon the application of certain international laws, thus appreciating the enemy’s position and acknowledging the basic rules upon which conflict will operate.

Introducing the Geneva Conventions

Terrorist groups are written off as candidates for negotiation because they do not follow the rules of international law and proper conduct of war. Highly debated among policymakers and academics is the question of whether terrorist groups are subject to international law.

The Geneva Conventions, written in 1949 and signed by every member state of the United Nations, provide a basis for the conduct of armed conflict. Though originally intended to address interstate warfare, non-state actors are explicitly held accountable under the Conventions as well. Geneva Conventions Common Article 3 addresses and demands application of certain clauses “in the case of armed conflict not of an “international character” (See Appendix A). The application of Article 3 of the Geneva Conventions therefore depends explicitly on whether the War on Terror is categorized as armed conflict.

Though the Conventions do not explicitly define armed conflict, parties agree on their basic character. On behalf of the International Committee of the Red Cross, Dr. Jean Pictet clarifies that armed conflicts are conflicts “with armed forces on either side engaged in hostilities” (Fischer). In the appeal of Prosecutor v. Tadic at the International Criminal Tribunal for the Former Yugoslavia, the Court held that “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” (Fischer). By the definitions above, it is simple to say that at its core, armed conflict as understood by the international community is the prescribed violence between two organized groups involving weaponry and violence. After the initial attack on U.S. soil on 9/11, American deployment of troops certified the U.S. commitment to armed conflict. Opposing forces organized throughout the globe and, with a basic ideology, structure and leadership, and repeated acts of premeditated violence, the War on Terror conducted in Iraq, Afghanistan, Pakistan and Syria all warrant the distinction of armed conflict.

Application of Common Article 3

The United States, as a signatory of the Geneva Conventions, is bound by its clauses. Once the War on Terror is accepted as armed conflict, the provisions under Common Article 3 of the Geneva Convention must apply to both sides. The terrorist regimes against which the U.S. has fought fall under the first sentence: as operating within the territories of nations that recognize the Geneva Conventions, non-state actors including terrorist groups are bound by the Conventions as well.

Once these rules are applied, it is easy to see where both sides fail to uphold the Geneva Conventions. In the 1980s, Hezbollah gained attention for the kidnapping of Westerners, including journalists, academics and religious figures in Lebanon (Fischer). The same group was responsible for the hanging death of a U.S. Marine William Higgins in 1990. The attacks of September 11th and over the subsequent years, Al Qaeda claimed responsibility for directly violating many articles of Common Article 3, including the targeting of civilians and the deliberate attack of forces attempting to help the wounded (in secondary improvised explosive devices and bombings). Most recently, the Islamic State has gained attention for the taking of both Western and local hostages, the inhumane and degrading treatment against these civilian prisoners, and the brutal and public murder. Ted Lapkin notes in his article published in Middle East Quarterly that “it is evident that Hamas, Hezbollah, and members of the global Al-Qaeda network spurn both the spirit and the letter of international treaties designed to ameliorate the cruelty of war” (Lapkin).

In the West, it was not until recently that the United States officially granted the application of Common Article 3 to the War on Terror. Until 2005, the Bush Administration held that the War on Terror was “international,” rather than conducted within the territory of a signatory and therefore Article 3 did not apply; the President directly signed a memo in February 2002 insisting that the Third Geneva Convention did not apply to al-Qaeda or Taliban detainees held at Guantánamo Bay (Farley). This was ultimately overturned in in 2006 by the U.S. Supreme Court in Hamdi v. Rumsfeld, where it was determined that political detainees were entitled to the full protections of the Geneva Conventions under Article 3 (Hamdi v. Rumsfeld). The U.S., however, continues to fall short of upholding these values and has been able to hide behind the lack of clarity on international law regarding terrorism. As Lapkin notes, “Both Amnesty International and Human Rights Watch condemn Washington’s characterization of captured jihadists as illegal combatants as a violation of the Geneva Conventions” (Lapkin).

A number of policymakers insist the U.S. is not required to uphold the Conventions in regard to terrorist organizations due the the blatant disregard of these groups for international law. Lapkin insists that, “By violating every tenant of international law regarding treatment of prisoners, terrorist groups forfeit any entitlement to protection under the Geneva Conventions” (Lapkin). With no expectation that terrorist organizations will follow the Conventions, and with the routine breaking of international law in order to drive a point home, many in the U.S. believe negotiations or peaceful attempts are fruitless. This policy, however, is unique to the fight against non-state actors. It is not acceptable for one nation to disregard international law as it applies to another simply because the opposer does not abide by the rules. Avoiding accountability at Guantánamo Bay, as President Bush did, only serves to directly influence disregard for international law in retaliation. The Islamic State specifically targeted these violations in their jumpsuit-clad hostages held in conditions they argued were only similar to U.S. policy. The entire basis behind the Geneva Conventions is to avoid this situation. International law must be upheld despite the actions of the other side, as accountability is to the international community.

The key issue is therefore not whether Geneva Conventions apply to the War on Terror, but recognizing the complete breakdown in the application of international law on both sides of the conflict. It is here that the U.S. must realize international negotiations and diplomatic efforts are essential to bringing parties back in line with international law.

Unsuccessful U.S. Policy: Failed Rescue Attempts

If the United States chooses to refrain from negotiations with terrorist groups, it is obliged to save the lives of its peoples in risky and covert operations. In recent years, these rescue missions have shown little success, endangering the lives of U.S. servicemen and, more than once, taking the lives of the intended target of the operation. In 2014, British hostage John Cantile was featured in an Islamic State video asking the American public, “Why would you put all those lives in danger when you could have peacefully negotiated?” (Malik). While the feasibility can be debated, the video point to a key issue in the conflict against a terrorist group: the Islamic State was suggesting negotiations. The enemy, with its intention of destroying Western ideology in the region, was first to uphold the key principals by which the United States believes it stands. Instead, the U.S. attempts to avoid negotiation by freeing hostages and POWs in rescue attempts. These attempts have seen little success recently, drawing into question the continued failure of American policy.

On September 26, 2010, British aid worker Linda Norgrove was kidnapped by the Taliban from her convoy in Kunar Province of Afghanistan. Members of Seal Team 6 attempted to rescue Norgrove in October where, during the attempt, a grenade meant to kill captors mistakenly hit Norgrove herself and she was killed. A senior Foreign Officer noted  that, “It was a high risk mission but one which had to be undertaken; there was no other choice” (Rayment). Despite Norgrove’s captivity of less than one month, negotiation was never considered as the other choice.

In the Summer of 2014, eleven Yemeni citizens were killed alongside two hostages in an attempt to free them from Al-Qaeda in the Arabian Peninsula (AQAP). On December 6, U.S. Special Forces raided the Dafaar village of Yemen, attempting to free American Luke Somers and a fellow captive. Both were shot and killed during the attempt. The fellow captive, Pierre Korkie, was a South African school teacher who was expected to be freed the following morning. His release and survival would have been the result of successful negotiations by a group entitled Gift of the Givers. Instead, American inability to recognize and appreciate this prevented his freedom.

During the same summer, on July 4, U.S. Special Operations attempted to rescue James Foley and other hostages held in Syria by the Islamic State. A massive mission and intensive planning and intelligence went into the operation which sent two dozen Delta Force commandos alongside fighter jets, drones and Black Hawks to a location, which turned out to be incorrect. Days later, James Foley was killed and his death posted on YouTube in retaliation. Cantile notes, “The Americans did try to get us out of prison, not by negotiation or prisoner exchange, but by an incredibly complex, risky and expensive rescue attempt that failed” (Rayment).

Success in Negotiation 

Nations who have publicly negotiated with terrorist organizations have seen success in their foreign policy. In 2011, Israel released 1,027 Palestine prisoners in exchange for Corporal Gilad Shalit, seen by many in the international community as a step towards peace, diplomatic resolution and understanding. Scotland released Abdelbeset Ali Mohamed al Megrahi on compassionate grounds after al-Megrahi was diagnosed with terminal prostate cancer. As stated above, South African teacher Pierre Korkie had successfully negotiated a release in exchange for $200,000 that, had it been successful, may have provided the West with much needed information on the goals and whereabouts of the Islamic State.

Despite its rhetoric, the Untied States has seen success in negotiations as well. In 2002, President Bush directly arranged a ransom payment to the Abu Sayyaf rebel group in the Philippines that was responsible for holding an American couple kidnapped in the country. John McWethy of ABC News notes that despite the U.S. policy to deny ransom payments or prisoner exchanges, “the Bush administration has done just that, arguing behind closed doors that they simply tried to help private citizens pay the money to a terrorist group that sometimes frees people who do pay ransom and invariably kills those who do not” (McWethy) Ironically, this took place at the same time that President Bush stated in a speech, “No nation can negotiate with terrorists, for there is no way to make peace with those whose only goal is death” (Bush).

The most public negotiation occurred in 2014 under President Obama with the exchange of five Guantánamo Bay prisoners in exchange for U.S. soldier Bowe Berghdahl.  Bergdahl had been held by a network associated with the Taliban and his release was brokered by the governments of the United State, Qatar, Afghanistan, and with the leadership of the Taliban.  The change was videotaped by a third party and handed over immediately following both sides’ release. The direct negotiations that led to this exchange brought the administration’s policies under scrutiny and demanded that American policy makers decide a future policy in the matter.


Arguments against negotiations are longer strong enough to prevent a change in U.S. policy. While underfunded terrorist groups may need money, the network and ability for organizations to acquire resources is growing. The Islamic State itself is now worth over $2 billion, the wealthiest terrorist group in history, and has the ability to purchase destructive weapons, conquer territory and fund its campaigns without the ransoms from hostages (CNBC). The conflict has intensified, and the West’s refusal to negotiate or acknowledge the enemy’s claims itself fuels conflict.

Identifying leadership and tactical measures of terrorist organizations is indeed difficult, but it is made more so by an inability to debate or make peaceful progress. It would do better for the U.S. to commit resources to understanding the best ways to negotiate, the best individuals and truly understanding the workings of the group in order to make a lasting impression than to devote these resources to ineffective rescue missions.

The observation that the United States policy cannot be changed without weakening American priorities is false. The U.S. does negotiate with terrorists, a fact that is increasingly publicized. The country’s weakness comes in the fact that its policy does not match its actions, and its enemies can exploit this position by demanding a public response. The U.S. looks weaker by being forced into the position of inaction, as it has been, rather than stepping up to acknowledge a change in policy in order to uphold the values of human dignity, liberal values and diplomatic resolution.

In a globalized world, a policy of non-negotiation which only serves to increase violence and animosity is unacceptable. The Geneva Conventions were built on  the goal of creating a baseline understanding from which to operate international conflicts. Today, a large portion of international conflicts involve terrorist groups. By insisting the groups do not partake in the Geneva Conventions and are unworthy of negotiations on principal is undermining to the entire system of international law.

Maura McQuade is a junior majoring in International Relations and Peace and Justice Studies.


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