concurring:
I agree with the majority that the petition should be denied: Khan solicited funds for the JKLF, an organization he reasonably should have known was a terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iv). I write separately, however, because I believe that Khan has sufficiently raised the issue of international law and deem it worthy of consideration.
1. Statutory Framework
Because it has not been specifically designated as such, the JKLF can only qualify as a terrorist organization under § 1182(a)(3)(B)(vi)(III). Such a “Tier III” terrorist organization is defined as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, ... [terrorist] activities.” Id. § 1182(a)(3)(B)(vi)(III). “Terrorist activity,” in turn, is “any activity which is unlawful under the laws of the place where it is committed” and which involves conduct proscribed by subsections (I)-(VI). Id. § 1182(a)(3)(B)(iii).
2. The Relevance of International Law
In my view, whether conduct is “unlawful under the laws of the place where it is committed” will, under certain circumstances, depend on whether and to what extent the foreign nation at issue has incorporated tenets of international law into its domestic legal regime, for example by acceding to an international agreement with binding obligations.1 The Geneva Conventions, to which nearly every country in the world is a party, are a prime example. The protections and obligations of the Geneva Conventions are triggered whenever there is an armed conflict, either international or non-international in character, involving a state party. See Geneva Convention Relative to the Treatment of Prisoners of War arts. 2, 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. In such a situation, the Geneva Conventions are part of “the laws of the place” where the conflict is occurring. See 8 U.S.C. § 1182(a)(3)(B)(iii).
Thus, while a group is not automatically a terrorist organization simply by virtue of engaging in an armed conflict, neither would its participation in such a conflict shield it from the terrorist label. The answer would depend on whether the *787group had engaged in unlawful conduct. Deliberately targeting noncombatants, for example, is unlawful under the Geneva Conventions and would constitute terrorist activity.
It is worth emphasizing that my view is not premised on carving out an “exception” to the terrorist activity definition for groups engaged in legitimate armed conflict. See Maj. op. at 784 (“[W]e hold that the definition of ‘terrorist activity’ under the INA does not provide an exception for armed resistance against military targets that is permitted under the international law of armed conflict.”). My analysis, like that of the majority, turns on whether the conduct in question is unlawful.
The majority recognizes the possibility that an interpretation of “terrorist activity” that ignores international law could lead to some bizarre outcomes, including classifying as terrorists Jews engaged in armed resistance against the Nazis. Maj. op. at 781. But such anomalous results are not merely hypothetical: the United States military, whose invasions of Afghanistan and Iraq were indisputably “unlawful” under the domestic laws of those countries, would qualify as a Tier III terrorist organization. Accordingly, any individual or group who assisted the U.S. military in those efforts would be ineligible for asylum or withholding of removal. See 8 U.S.C. § 1182(a)(3)(B)(iv). This could discourage sympathetic groups from lending support to the U.S. military, knowing it would preclude them from seeking refuge in the U.S. in the future.
The majority contends that such concerns are overblown, pointing to a provision in the statute allowing the Secretaries of State and Homeland Security, in consultation with each other and the Attorney General, to waive the terrorism bar. See Maj. op. at 781-82; see also 8 U.S.C. § 1182(d)(3)(B)(i). I hope my colleagues are correct. I, however, am less sanguine than they are about the efficacy of this waiver provision. First, the waiver is entirely discretionary and unreviewable. See 8 U.S.C. § 1182(d)(3)(B)(i). Second, the waiver requires the assent of three separate agencies, posing a daunting bureaucratic obstacle to implementation. Third, even without this high administrative hurdle, a waiver seems to me a haphazard and inefficient means of avoiding outcomes— such as classifying the U.S. military as a terrorist organization — that Congress clearly never intended. Finally, because India is a democracy, the waiver provision is not even available in this case. See id. (“[N]o ... waiver may be extended to a group that has engaged [in] terrorist activity against ... another democratic country.”).
In sum, it is foreseeable that interpreting the statute without reference to international law occasionally will lead to anomalous, and unintended, results, and the availability of individual waivers is, at best, an inadequate piecemeal solution. Consequently, I agree with Khan that international law will sometimes be relevant in determining whether to apply the terrorist bar.
3. Application to Khan’s Case
Recourse to international law, however, does not help Khan in this case. Although India has ratified the Geneva Conventions, and the JKLF is arguably engaged in a qualifying conflict, substantial evidence supports the conclusion that the JKLF has exceeded the bounds of permissible conduct under the international law of armed conflict. The record indicates that the JKLF has killed moderate politicians, detonated bombs in public places, and claimed responsibility for high-profile kidnappings. Such activities violate the Geneva Conventions, which prohibit the targeting of noncombatants or the taking of hostages. See *788Geneva Conventions art. 3. Accordingly, this conduct is “unlawful” for purposes of § 1182(a)(3)(B)(iii) and constitutes terrorist activity. The JKLF, therefore, qualifies as a Tier III terrorist organization. Because Khan has failed to demonstrate by clear and convincing evidence that he should not reasonably have known that the JKLF is a terrorist organization, I agree with the majority that he is ineligible for asylum or withholding of removal.
. The majority appears to recognize this possibility when it notes that "[a]n action would be lawful within the meaning of § 1182(a)(3)(B)(iii) if the law of the country in question incorporates international law such that the conduct in question is no longer 'unlawful' under the country’s domestic law.” Maj. op. at 781.