06 Jun Targeted Killing in US Counterterrorism Strategy and Law
In various posts on OJ about Predator drones, targeted killing, and such topics, I’ve made reference to a book chapter I’ve been drafting for Benjamin Wittes’s forthcoming edited volume of policy essays, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009). I’m pleased to say that my chapter, Targeted Killing in US Counterterrorism Strategy and Law, has been posted up at the Brookings site, as a working paper along with the other working papers that come out in the book. Shameless self promotion; apologies – but given the various scholars’ meetings that Bobby Chesney and others well known to OJ are currently facilitating on various aspects of these things n behalf of the administration, such as detention, Ben’s book has particular resonance. You can download pdfs of the papers now without having to buy the book. I’ve also put my piece up at SSRN, here; it is not a law review article or scholarship as such, but a policy argument to a particular normative end and blunt advice to the Obama administration and the Congress on what it needs to do to preserve the legal rationale for targeted killing as a tool and weapon.
One of the points made in my chapter is that the US, and the Obama administration, seem to be on a collision course with international soft-law community on the question of targeted killing and the Predator campaigns. That feeling is only reinforced by the release on June 2 of the ICRC’s “Interpretive Guidance” on the meaning of “direct participation in hostilities.” Obviously it has huge bearing on the question of targeted killing in armed conflict. I will not comment on it now, except to say that I have concerns as to the substance of the ICRC document – Dapo Akande discusses the substance at EJIL Talk!; I will discuss my own views of this in a later post – but perhaps even more to the process, which by all informal accounts was fractious at best. I want to re-read the ICRC document again before commenting on substance, in any case.
Meanwhile, here is the abstract I put up at SSRN for my chapter:
Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink.
Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense.
This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind – to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law.
As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define “direct participation in hostilities,” have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.
The draft policy paper runs 20,000 words and is a Working Paper of the Series on Counterterrorism and American Statutory Law, a project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, none of whom are responsible for the contents of individual papers. A finalized version of the paper will appear in Benjamin Wittes, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).
What absolute nonsense: you are advocating uncomplicated MURDER in violation of the U.S. Constitution, Titles 10 and 18 U.S.C., Geneva 1949, the IMT Charter (London 1945), and Hague IV 1907.
And setting all of that aside, such a “policy” is utterly IDIOTIC. You aren’t just a hypocrite and fascist, you’re a demented sociopath in the same sense Eichmann or Mengele were.
You’re a damned disgrace to both the nation and the legal profession: you are inciting murder and crimes against peace, and that is ALL that you are doing you worthless contemptible fraud.
You’re no lawyer, you’re just a terrorist and a New-Age NAZI.
Rather than contradicting US policy, the June 2 guidance from the ICRC seems to support not just the policy of the Obama administration but also the core elements of the policy of the Bush administration. The most important idea expressed by the ICRC is that “In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (‘continuous combat function’).” In this context, continuous combat function does not mean that you have to be shooting at someone all the time. It simply means that you have to participate in a unit organized for the purpose of combat. “An individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.” Thus someone who signed up to be trained for Jihad and who received training at the al Farouq camp in Afghanistan or more recently in camps located in the tribal areas of Pakistan can be regarded as a member of… Read more »
Howard,
What utter BULLSHIT. If everyone on their side is a terrorist, then everyone on your side is equally a terrorist only more so. Are you really that stupid and dishonest?
I guess you mus, be — you’ve been drooling the same vacuous goo for years now, and the bottom line remains the same:
You, and Ken, and Julian, and every other neo-fascist nut who advocates this demented BS are in fact inciting, aiding, and abetting CRIMES against the laws of the United States.
The only difference between you neo-fascists and Al Qaeda is that you degenerates are a far greater threat to the United States and the world than they ever will be.
Howard, thanks for these comments. I propose to have a very serious discussion of the substance of the ICRC guidance soon. Before getting there, however, I want to have a very serious discussion, to the extent that one can get at it, of the process involved, which I find troubling. Don’t be surprised if I don’t comment at this point on the content, as I am concerned about this stage about how this process of experts meetings resulted in this document. Or, at least, at this stage I don’t understand it.
Thank you for providing the community the opportunity to read your article. I read it and the article by Michael Stokes Paulsen that you recommended earlier. They were both very helpful. My great concern in looking at international law and just war doctrine is that both speak to circumstances of the late 19th and the 20th century, circumstances that have radically changed with the advent of al Qaeda and other terrorist groups, especially if one obtains a nuclear weapon. My understanding of the basic concept of international humanitarian law is that it seeks to protect civilians in conflicts. Discussion generally focuses only on civilians injured or killed in predator attacks, for example. It seems to me that discussion must also consider the right of a nation to protect its civilians from terrorist attacks. Obviously, civilian loss from a predator attack may be easily determined; civilian loss prevented by that attack can never be known. It seems to me that the real questions that we must focus on are policy rather than simply legal ones. I am less interested in what international law says in the age of terror attacks than what it should say. Furthermore, I am troubled by questions of the legitimacy of some of… Read more »
“Obviously, civilian loss from a predator attack may be easily determined; civilian loss prevented by that attack can never be known.”
BULLSHIT. You could say the same thing about bombing criminal suspects right here in the United States — and the truth is that you aren’t a fortune teller any more than you’re a lawyer you imposter. You’d never advocate that of course, because then you’d expose yourself as a murderous sociopath — but who cares about killing innocent Afghans or Pakistanis??
And then you damned idiots wonder why so many people hate us. It’s no mystery — they hate us because of hateful murderous tyrannical GOONS like YOU. People always hete
Sic semper tyannis.
You’re just a damned war criminal who belongs in prison.
“It seems to me that the real questions that we must focus on are policy rather than simply legal ones. I am less interested in what international law says in the age of terror attacks than what it should say.”
And here all you’re doing is displaying your profound ignorance of history and absolute contempt for the law — and not just international law, but the law of the United States.
New-age Nazis, every last one of you.
“Article 51 of the UN Charter recognizes the right of each nation to self-defense. Surely that right applies to attacks against terrorist organizations as well as other nations.”
Surely not. UN Charter was not drafted with terrorist organizations in mind and “Article 51 of the Charter thus recognizes the existence of an inherent right to self-defence in the case of armed attack by one State against another State” (ICJ in Wall, para. 139).
Of course, the complicated case is when non-state groups operate against one State from the territory of another without the latter’s consent.
“recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define “direct participation in hostilities,” have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance.” Kenneth — I am not sure this is right in light of the recent ICRC interpetive guidance. I think Howard’s points are on target (OK, bad pun). Now whether or not the process that led to this guidance, and the whether or not the ICRC’s status as an NGO, counsels that this view should be of any normative consequence is an entirely different, and tremendously important question. I take your hint that you are thinking that through and will discuss at a later time. Fact is, however, for now, ICRC views will be cited, and do carry some persuasive authority. I suppose they can be impeached as perhaps you propose to do, but that goes to the weight, not the admissibility, if you will. I would suggest that both the US and Israel, to the extent each finds targeted killings… Read more »
Alan and Howard – I will come back in a separate post to the ICRC guidance, in which, as I said, I have questions on both the substance and the process. When I say process – there’s a big question as to what happened when the ICRC’s release says that the guidance does not reflect a consensus or even necessarily a majority of the experts. Knowing some of the experts who declined to sign on to the effort, I have questions about what happened. But I’ll save that for another post. I’ll also save until going straight to the substance of the ICRC guidance the question of what it says that can be read in both directions. I agree that it is a great deal more – in the middle, for lack of a better term – than much of what is out there in the soft law community. But taking the whole soft law stance together, I’d still say that the view is that taken by the ICRC’s own Nils Melzer in his own book, Targeted Killing in International Law, which I think can only fairly be read as extremely hostile to the practice. Mark Osiel gets it… Read more »
Kenneth – Thank you. I am not following this as closely as I should I suppose; will be interested in your thougths when ripe.
I think, though, that targeted killings, like war, are here to stay, and so the better approach, as a matter of law and policy, is to attempt regulation, as IHL does with armed conflict, rather than an outright ban, which will not be accepted by those at risk. My sense is that the ICRC guidance is now beginning to tend to reflect that approach.
Nevertheless, there is no doubt that this is a break from prior hostility to the practice, and so as a recognition of the broad hostility to the practice presently extent, your entry into the policy debate to suggest approaches “to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law” is important and useful. It will suggest legal strategies in support of broad national security objectives, and therefore I hope it gains some traction with those in gov’t working these issues.
Alan, I was delighted to get your email and I’m now back and able to respond! Great to hear from you.
I also wonder if Mark Osiel is following this here at OJ and wanted to add something? I do plan to propose something to my fellow bloggers to take up the ICRC guidance more in depth, apart from my posts.
The ICRC position seems reasonable given the text of agreements, simple logic, and historical practice. Reasonable people may disagree and they are certainly free to make their argument for other positions. However, after this document it will be impossible for unreasonable people to, as has happened for the last eight years, simply assert that their contrary position is the universally accepted view of all IL experts and is not subject to discussion. From now on, various views of armed conflict, non-State parties, and non-international wars will have to be argued on their merits. That is a big change. The important effect here is not to provide guidance as to whether and in what circumstances a “targeted killing” is legal. Rather, once you accept the principle that the armed forces of a non-State party to a non-international armed conflict are legitimate military targets just like uniformed soldiers, the subsequent use of a Hellfire missile from a Predator drone, or of a JDAM bomb from an B52, or .50 cal round from an M82A1 sniper rifle against an enemy military commander is ordinary combat. Although literally a targeted killing, it is no different from any battlefield death involving an aimed weapon. Certainly… Read more »
Ken, I do look forward to a discussion on the ICRC guidance. Without having had the time to read your article – apologies – I am somewhat perplexed about your reference to Art. 51 of the Charter. Even if the US did have the right to self-defense in a particular situation, that would only help it with one aspect of any given targeted killing, namely regarding the question whether it has violated the sovereignty of the state in which it conducted the killing. Thus, in respect of the current drone attacks in Pakistan, if the US could rely on the right to self-defense in regard of attacks by non-state actors against Afghanistan emanating from Pakistan, then Pakistan could not complain that the US is engaging in strikes. Otherwise, the US would need the consent of the Pakistani government for the strikes. But self-defense gets you nowhere when it comes to the other aspect of targeted killings, namely whether the individual being targeted has any rights vis-a-vis the US. For that you have to argue that there in an absence of any such prohibition, for example that the ICCPR does not apply extraterritorially – which is what you are doing, as… Read more »
Marko i’m on the fly and can’t respond, but will more fully when i get back on what i mean there – although even if i manage to be clear, i don’t think you’ll actually agree 🙂
Marko, what is new is the statement that non-State armed forces in a non-international conflict are not civilians and are subject to the same rules of targeting as more official types of armed forces. The question about Taliban forces has not centered on whether they were privileged but rather whether they were combatants (of any type). Many have argued that someone must either be a lawful combatant or else be a civilian. Since non-State parties and non-international conflicts did not involve regular armies of traditional privileged combatants, some asserted that such fighters had to be regarded as civilians. The Taliban and al Qaeda were supposedly “civilians occasionally engaged in combat” which then raises all the complicated situational questions that the rest of the ICRC document addresses. Now it is clear that an army of 45,000 light infantry can be regarded as combatants without having to argue, as the State Department did, about whether they were a regular armed force or a militia. The hostilities in Afganistan and Pakistan are and always have been a single conflict. The Taliban and, more broadly, the Pashtun militia they led exist on both sides of the border and do not recognize the legitimacy of… Read more »
Postscript: The principle that there are only two categories, privileged combatants and civilians, and everyone has to be one or the other was accepted from amicus briefs submitted by IL scholars and became the core premise supporting the original decision of majority of the three judge panel of the Fourth Circuit in the al Marri case:
1 According to IL scholars, everyone must be either a privileged combatant or a civilian.
2 Members of al Qaeda like Al Marri are not privileged combatants.
3 Therefore, al Marri is a civilian.
4 According to ex parte Milligan, civilians cannot be held in military custody when courts are available.
5 Therefore, al Marri must be released from military custody and either charged criminally or else set free.
That opinion was vacated and replaced by the en banc decision that did not rely on the original premise. This doctrine, now rejected by the ICRC and certainly no longer the universally accepted opinion of all IL scholars, has appeared in more important matters than just blog posts.
So…the implications of what Howard and John are saying about the targeting based upon status, and the reasoning of the now vacated Al Marri decision are interesting:
Does it now follow that non-privileged members of non-state organized armed groups, when captured, may be held for the duration of the conflict as some sort of quasi-POW? How would this affect status hearings? Would they even apply to such individuals? Is there any right to trial or hearing? If the captured “fighter” is liable for prosecution for crimes committed under domestic law, would that mean he or she must be offered a trial, or can the individual be held for the duration without trial, and prosecution for any crimes committed eschewed?
As Mr. Spock might say: fascinating
Alan, Every enemy national in an international armed conflict is either protected by the Third or Fourth Geneva Convention. The Fourth Convention defines “protected persons” who are often but not exclusively civilians. It excludes American citizens or the nationals of neutral or allied countries. When you capture a member of a non-state party to an armed conflict who is your own national in your own country (a Viet Cong in South Vietnam), then it is common practice for the government to treat him as a criminal. However, there are other cases (a member of the CSA during the Civil War) where such persons are treated as POWs. When you capture a foreign national in a foreign NIAC, common practice is to turn him over to the local government where possible. If not, then the Third GC contains language urging parties to voluntairly apply its terms to fighters in conflicts it does not cover (as happened in Korea). The Fourth GC allows protected persons who pose a security threat to be kept as Civilian Internees, but requires a review every six months to determine that the individual still poses a security threat. Generally the Third GC is held to provide greater… Read more »
Oddly, my earlier comment was accidentally removed (so I was informed). I have determined it unnecessary to re-post it. I note, related to what Howard has said immediately above, that the recent detention decisions in the D.C. circuit have not addressed the issue of security threat detainees. I am uncertain whether the government argued the point. It certainly would be relevant to their argument regarding those “supporting” enemy forces (though I do not here or now wish to debate the required proximity of any such support to on-going hostilities). I also note that Milligan involved an act of Congress specifically directing that people like Milligan be turned over to the civil courts for grand jury proceedings. Both the majority and concurring opinions agreed to granting habeas relief on the basis of that act. Thus, I am uncertain whether the “courts closed” standard (which would appear to be dicta) is all that firm. Other cases indicate that martial law can exist without the immediate presence of armed conflict…though the precise limits are unclear (meaning 8 months after Pearl Harbor was too late to have them in Hawaii…but short of that we are uncertain). I do not think hybrid review would necessarily prevent habeas challenge… Read more »