09 Apr Why the President’s Targeted Killings are Illegal (According to Professor O’Connell)
Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy. On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy. Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant. I think this makes sense, even if I doubt it is right. It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer). Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years.
Response…
Yet, my draft article addresses some of her claims and demonstrates why some of Mary Ellen’s claims are not based in general patterns of practice and patterns of generally shared legal expectation about such practice, and so forth. There are some points of agreement as well, esp. re: who should be flying the drones. Please see http://ssrn.com/abstract=1520717
JJ Paust
There is no rule about “battlefields”. No such rule has ever existed or been imagined in any previous war. When Pettigrew’s North Carolinians went looking for shoes and ran into Buford’s cavalry unit, the little town of Gettysburg was not a battlefield. Yet both forces immediately attacked each other and a new battlefield was created. When the Japanese tried to track down individual Coastwatchers who were radioing information about Japanese ship movements in the Solomons, there was no “battlefield”. They were targeted individuals attacked by military force, frequently large units of searching infantry. They were located deep in the jungle specifically to be as far away from the enemy and any battle as possible. Yet they were legitimate military targets. Every individual fighter pilot who stumbled upon a solitary enemy plane and fought a dogfight knows, if he is lucky enough to be the one who gets away, that battles can be fought between individuals, and the war just happens whenever two enemies encounter each other wherever that happens to be. In Mogadishu there was no battlefield when Super Six One was shot down and crashed. Gary Gordon and Randy Shughart won the Medal of Honor for attempting to secure… Read more »
Come on, Howard. It’s really clear from the editorial to which Julian links that O’Connell is using “battlefield” as a metaphor for armed conflict. Her comment about crossing the border into Pakistan is just one example.
“Now cross the border from Afghanistan to Pakistan. In Pakistan the United States is sending wave after wave of unmanned drones to attack far from any battlefield.” So on 9/10/2001 the Army of Afghanistan (or at least the government in control of the southern 90% of Afghanistan) consisted of 45,000 mostly Pashtun militia including 10,000 militia men from the Pashtun tribal areas of Pakistan. The Pashtun tribes never recognized the legitimacy of the international border between Pakistan and Afghanistan since it essentially represented the limit of British colonial expansion from their core holdings in India. After “the planes operation” and the US response, this force mostly dissolved. The Pakistani militia and foreign fighters crossed the border from the Afghan Pashtun tribal area to the relatively safe haven of the Pakistani Pashtun tribal area where they would be bothered by neither NATO nor the Pakistani army. From this safe haven they continued to train soldiers and infiltrate Afghanistan and attack US forces. This is not to say that there is no difference between the Afghan Taliban and the Pakistani Taliban. Pakistan is a big country with a lot of different groups and even the Pashtun tribes are not entirely homogeneous. However,… Read more »
The comparison with France is inapposite: France was occupied territory, so it was in the midst of an armed conflict. Vichy was a puppet state, so it was controlled by Germany, which was of course part of the armed conflict. A more sound comparison would be a case where the Allies targeted a German in Spain or Switzerland and got away by claiming that this was legitimate. This would be similar to Israel targeting enemies in Yemen, for instance; or the US targeting enemies in Pakistan. I am aware of the two different issues here (legality under IHL and violation of sovereignty), but am a bit unclear about the interaction of the two – probably because the rules of armed conflict are predicated upon ‘traditional’ notions of state conflicts and neutrality…Can you really distinguish between the two?
Well, there was the US invasion of Mexico in search of Pancho Villa, an enemy of the current Mexican government who had crossed into the US and attacked towns and military units. Then there were the various attempts to choke off supplies and units of the NVA infiltrating down the Ho Chi Min trail through Laos or Cambodia. Then there was the attack on the Ehrenfels, a German ship in the nominally neutral port of Goa (Portugal) by members of the Calcutta Light Horse. Then there was the Archangel expedition against the Bolsheviks who had taken Russia out of World War I. We were on the receiving end when protests against the British stopping and searching our ships for their naval deserters triggered the War of 1812, or on the flip side of the same sort of thing when Roosevelt aided the British with the Lend Lease program while America remained nominally neutral before Pearl Harbor. The problem is that international law does not distinguish between a really neutral state, a “puppet” neutral state, a secret enemy, a secret ally, and all the other grey areas. This all misses the point. There are two completely, completely separate questions. The first… Read more »
Al-Qaeda is not an army.
Terminology notwithstanding, Howard has stated much of the law accurately, in my opinion. I disagree with Kevin about Professor O’Connell’s use of “battlefield.” She has written a draft article (probably published by now – I read it a while ago) in which it is clear that her position is that human rights law, not the laws of war/IHL, regulates armed attacks outside a zone of active conflict. Kevin implicitly made the same claim in his earlier post, at least as I understood him. That is the real crux of the matter. Domestic law aside, one’s opinion on the legality of these attacks depends upon one’s view of the territorial applicability of the laws of war/IHL. I am of the view that members of an armed organized group in armed conflict with one or more states may be attacked wherever they are found so long as they are fairly determined to be combatant members of that group. With that said, I have an entirely different view of the applicability of IHL to civilians supporting such groups outside a zone of active conflict whose activity does not rise to the level of taking a direct part in hostilities. That view is based… Read more »
Al Qaeda is a waqf, a charitable foundation established under Shari’a entitled to receive the required charitable donations or Zakat of wealthy Muslims. It was established in the 1980’s to support the foreign born soldiers who came to Afghanistan to fight the Soviet invaders. In the 1990’s it resumed activity in Afghanistan, raising money in Arab states to recruit, train, and equip foreign fighters to support the Taliban led government in its war against the Islamic Front for the Salvation of Afghanistan (aka Northern Front). It also trained a few fighters for the conflict in Bosnia and then Chechnya. Discovering that they could raise more money and recruits by emphasizing Chechnya than the Northern Alliance, they focused all their publicity on the Chechen part of their operation, even though of the 18,000 soldiers they recruited, trained, and equipped only a few dozen ever made it to Chechnya. Soldiers trained by al Qaeda formed the 055 Brigade (aka Ansars), which was an important part of the front line Afghan Army. The Afghan Army retained its tribal and regional unit identities just as the government remained a loose coalition of tribal leaders based on the Afghan Jirga tradition and not Western models.… Read more »
John,
I am of the view that members of an armed organized group in armed conflict with one or more states may be attacked wherever they are found so long as they are fairly determined to be combatant members of that group.
I am genuinely curious about a few things. Where is your support in IHL for the idea that the occasional terrorist attack qualifies as “armed conflict”? And where is your support in IHL for the idea that you can simply lump any alleged al-Qaeda member regardless of ideology or location into the category “al-Qaeda,” such that you can impute the attack of any member of al-Qaeda to all of the members? And where is your support in IHL for the idea that once you have created a supposedly unified global al-Qaeda and identified a particular terrorist attack or set of attacks that supposedly rises to the level of armed conflict, that armed conflict extends world-wide such that you can attack a member of al-Qaeda regardless of location?
Your and Howard’s approach to terrorism might make more sense than the current one (though I don’t think so), but I don’t recognize any currently-existing IHL in it.
Adding to KJH’s questions, what are the implications for your views of article 1(2) of AP II?
[The text of art. 1(2): “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”]
Although the U.S. hasn’t ratified AP II, I still think it’s relevant, insofar as it is at least evidence that IHL distinguishes between armed attacks of varying severity.
Anonsters,
The conflict with al Qaeda is not an “internal disturbance” by any reasonable interpretation of that term, in my opinion. The rest of the terms listed are descriptive of the types of internal disturbances to which the treaty does not apply (“such as”).
Next, regardless of whether that language reflects universal customary international law for the threshold of violence necessary to the existence of armed conflict, the gravity of violence is relevant to whether an armed conflict exists, not just its sporadic nature. The terms are descriptive and not exclusive (“such as”). Historically, limited wars between nations often involved sporadic, low-threshold violence. This was not a bar to the application of the laws of war.
It is possible, then, to view 1(2) as a subset of non-international armed conflict to which the protocol applies for states party to it, leaving customary international law to regulate armed conflict outside its scope. Of course, armed conflict must genuinely exist.
Kevin, this should address some of your questions. I do not have time to respond further right now. I will only say that were it not for very modern notions of international human rights law, I suspect we would not be having this debate at all.
Fair enough.
Your response still doesn’t answer the question about categorizing people as al Qaeda for the purpose of exposing them to attack. You said:
I am of the view that members of an armed organized group in armed conflict with one or more states may be attacked wherever they are found so long as they are fairly determined to be combatant members of that group.
In your view, what makes someone a “combatant member” of al Qaeda?
what makes someone a “combatant member” of al Qaeda? Al Qaeda has very few actual members. It may have trained and equipped as many as 18,000 combatants, but they were members of the Afghan Army, not of al Qaeda. Even KSM who conceived, planned, and commanded the planes operation on 9/11 does not consider himself to be a member of al Qaeda, having declined to take the personal oath of allegiance to Bin Laden. There is an unnamed organized armed force recruited, trained, and equipped by al Qaeda and led by people associated with it, but you should regard al Qaeda as a funding source. The armed force used to be the Army of Afghanistan and, though often referred to as “the Taliban”, it is currently an unnamed organized armed unit engaged in an armed conflict in Afghanistan, Pakistan, and elsewhere. I would suggest that a starting definition of becoming a “combatant member” of this enemy armed force is roughly the same as becoming a combatant member of the US Army. You go somewhere where the enemy is in control and sign up, go through basic training at a military training camp, take the oath, and then pull guard duty,… Read more »
Howard:
What would you do with the distinction between those who directly participate in hostilities and those who do not?
Direct participation in hostilities is required in order for civilians to be targeted. Members of an organized armed unit of a party to an armed conflict can be targeted if they are engaged in “continuous combat function”, which can be simply preparation or planning for combat. (See the ICRC Guidance on Direct Participation) “Continuous” in this context means that they have not withdrawn from the armed unit to go home or do something non military for a long period, it doesn’t require that they engage in combat function all day every day.
Anonsters, where would you draw the line? Specifically, which of these, assuming that the US is at war with A-Q, do you consider to be engaged in direct participation in hostilities:
1 A US army serviceman on base but off-duty
2 A US national guard serviceman performing a non-armed supply chain role in Afghanistan
3 A US national guard serviceman performing a non-armed supply chain role in Iraq
4 A US national guard serviceman performing a non-armed supply chain role in a neutral third State eg Qatar
5 A US national guard serviceman performing a non-armed supply chain role in the United States
6 A US non-enlisted contractor performing armed escort duties
7 A foreign non-enlisted contractor performing armed escort duties
8 A foreign non-enlisted contractor performing unarmed supply chain services in Afghanistan
9 A Pentagon analyst who briefs Pakistani intelligence
10 A State Department analyst who briefs Pakistani diplomats
11 A US non-enlisted contractor performing unarmed supply chain services in a neutral third State eg Qatar
12 A US non-enlisted contractor performing unarmed supply chain services in the US?
hm, those fancy html buttons don’t work as well as intended, will fix…
Uniformed members of a regular armed force (1-5) are combatants subject to targeting at all times, unless they are rendered incapable of combat as by injury.
Members of regular armed units of a non-state party to a non-international conflict are targets when they engage in continuous combat function (not direct participation). Every case except 10 could represent continuous combat function of training for combat, preparing for combat, or planning for combat provided that the supply chain function involved combat supplies, but 1-5 are regular soldiers and 6-12 are civilians so the rule doesn’t apply to any of them.
6 and 7 represent civilians who might end up directly participating in combat if they are attacked by privileged belligerents. The problem here is that none of the enemy have been privileged belligerents, so an attack on a civilian guarded convoy by unprivileged belligerents may not be regarded as combat since nobody involved has combatant privilege. 6 and 7 are not directly participating in anything if they are simply armed but are not attacked.