The announcement that the Obama administration plans to refer more cases to the Military Commissions process rather than federal court has set off another round of debate about the nature of threat posed by Al Qaeda and its surrogates, and it is worth reiterating some of the positions that Amnesty takes on the Global War on Terror paradigm.
First and foremost, international humanitarian law conceives of just two categories of armed conflict: international and non-international. International armed conflicts are fought exclusively between sovereign states, not between states and non-state actors. Osama bin Laden can no more declare war on the United States than you or I can.
Non-international armed conflicts — for example, civil wars, rebellions, insurgencies — involve fighting between regular state armed forces and identifiable armed groups, or between armed groups fighting one another, but only within the territory of a single State. There are rules that govern both international and internal armed conflict but they differ in certain important respects. Some basic rules — like Common Article 3 of the Geneva Conventions — apply across the board.
When the law of international armed conflict or the law pertaining to internal armed conflict applies can differ from one case to the next. The legal standing of Al Qaeda as an entity in Afghanistan may differ to its standing in Pakistan, which in turn may be different to its standing in Yemen, Europe or even the United States.
Confused? You should be. In law, this is all a matter of argument as much as fact. It is complicated and often uncertain.