Some pretend that the war on Al-Qaeda is not a war and attacking them with drones is illegal under international law. Under this theory, terrorism is a crime, not an act of war. Terrorists such as Australia’s own David Hicks are just criminals. These criticisms rest on profound misconceptions about the international laws of war.
The hijacking of airliners was defined by the UN in the 1970s as aerial piracy.
The 9/11 terrorists were air pirates. NATO and allied military entered Afghanistan to subdue the home base of these brigands and those that harboured them:
- Naval and military deployments against pirate’s lairs date back thousands of years.
- The first war of the USA was with the Barbary Pirates in 1801 to 1805, with another war in 1815. These pirates waged war against the shipping of other nations, seized cargoes and ships, and sold captives into slavery.
- Punitive expeditions against bandits were commonplace too, such as chasing Pancho Villa and his gang of bandits back into Mexico in 1916.
- The U.S. military recently attacked a Somalian maritime pirate camp to rescue hostages. EU naval forces have also attacked these pirate lairs to destroy boats and supplies.
The case for attacking Afghanistan was as a limited, punitive expedition to degrade it as a terrorist base camp. That mission was accomplished in 2001 and 2002.
Does Al-Qaeda and other terrorist militias wear uniforms and carry their weapons openly as required by international law to qualify as a lawful combatant? Al-Qaeda and other terrorist militias routinely commit war crimes under the Geneva conventions by intermingling with civilians and by “locating military objectives within or near densely populated areas”.
International humanitarian law permits members of the armed forces of a state that is party to an international armed conflict and associated militias who meet the requisite criteria to wear uniforms, carry their weapons openly, and directly engage in hostilities. They are generally considered lawful, or privileged, combatants who, when captured, may not be prosecuted for taking part in hostilities as long as they respect international humanitarian law.
The whole purpose of requiring belligerents to wear uniforms recognisable at a distance and to carry their weapons openly is to protect civilians. Each side can see the other clearly and has no excuse for getting ‘trigger happy’ around civilians.
It is the terrorists who violate the laws of war by hiding themselves and their bases within civilian populations, thereby drawing unwilling and unsuspecting innocents into the fighting.
If civilians directly engage in hostilities, they are considered unlawful or unprivileged combatants or belligerents. They may be prosecuted under the law of the detaining state. The Allies detained 11 million POWs (and captured enemy personnel) without charge or trial by the time World War II ended. None were allowed access to a lawyer or had the right to seek bail.
Because the USA and others are at war with Al-Qaeda, they can use force to conduct hostilities against the enemy and those who harbour them. The Taliban was warned. A Wiki has this nice quote by Stone (1921):
When the territorial sovereign is too weak or is unwilling to enforce respect for international law, a state which is wronged may find it necessary to invade the territory and to chastise the individuals who violate its rights and threaten its security.
When a nation goes to war, it seeks to defeat and subdue its enemy to prevent further attacks.
The U.S. and allied military and intelligence services are legally and morally free to target Al-Qaeda for an attack whether they are on the front lines or behind them, with or without warning and without any attempt to capture.
A corollary of the right to kill enemy personnel is that the deaths of civilians that occur in legitimate attacks against military targets are not illegal. It is pious to deny this. It denies the most basic and best understood of moral distinctions: between premeditated murder and unintended killing.
It is the central principle of the international laws of war that innocent civilians should not be targeted. On the other hand, the rules of war accept the death of civilians in or near legitimate military targets.
Al-Qaeda will never follow the rules of war. Al-Qaeda gains its only tactical advantages by systematically flouting them and hiding among civilians.
The renegade Left for decades wanted terrorists to be treated as prisoners of war, and thereby held to the end of the war and not otherwise punished. Now, the renegade Left don’t want terrorists to be held as captured combatants to the end of the war. Instead, they want them to have the right to apply for bail.
As part of law-fare, one or two fathers applied to the U.S. courts for injunctions to stop drone attacks on their wayward sons on a best friend basis. They failed and were reminded by the Court that if they were so worried, their sons could pop down to the nearest U.S. embassy and discuss their fears: surrender for extradition.
Al-Qaeda and 9/11 will not go away if only history were different and the USA had kept more to itself prior to 9/11. The war against Al-Qaeda started from the world as it was on 9/11 for all its flaws. After 9/11, mutual defence obligations were triggered under NATO and ANZUS, in addition to the UN resolutions. Navies and armies have fought pirates and bandits for thousands of years.
P.S. All terrorists and members of the Taliban are war criminals because:
- Article 51 (7) of Protocol I of the Geneva Convention states: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or to shield, favour or impede military operations”.
- The Geneva Convention also holds that “The presence of a protected person may not be used to render certain points of areas immune from military operations”. (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, Laws of Armed Conflicts, 495, 511.)
- The Rome Statute is clear that “utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations is recognized as a war crime by Article 8 (2) (b) (xxiii)”.
Utopia, you are standing in it! 
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