Targeted Killing Away from the Battlefield: A Response to Ken

by Kevin Jon Heller

I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war.  Here are the relevant paragraphs (my emphasis):

[G]oing to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

To begin with, this is a caricature of Melzer’s position.  He does not claim that combatants can be lawfully targeted only when they are on the battlefield; his discussion of the extraterritorial reach of non-international armed conflict on pages 257-61 of his book, for example, is replete with situations in which states lawfully targeted insurgents outside of the “theatre of conflict.”  On the contrary, he simply insists — correctly — that the extraterritorial targeting of an individual is governed by the laws of war only if (1) the target does, in fact, qualify as a combatant in the armed conflict in question, or (2) the target is a civilian who is directly participating in that armed conflict.

The distinction is important, because it leads to a conclusion that Ken’s argument ignores: although the laws of war permit the extraterritorial targeting of “participants” in an IAC or an NIAC, not every terrorist qualifies under the laws of war as a “participant” in the IAC in Afghanistan or the NIAC in Pakistan. Al-Aulaqi is a perfect example.  He is not a “member of the armed forces of a Party to the the conflict” in Afghanistan, as that category is defined in IHL, nor is he a member of an “organized armed group” that is involved in the NIAC in Pakistan — there are many al-Qaedas, not just one. The laws of war govern his targeted killing, therefore, only if it can be said that he is directly participating in the hostilities in Afghanistan and Pakistan.  And that is a very difficult argument to make, given that his terrorist activities appear to have been focused exclusively on Yemen, the US, the UK, and Canada.  To be sure, there is no question that Al-Aulaqi approves of al-Qaeda’s activities in Afghanistan and Pakistan.  It is even possible that his inflammatory speeches incite young Muslims to join al-Qaeda in those countries.  But such incitement does not qualify as direct participation in hostilities (DPH); it is at best indirect participation.  And even if it did qualify as DPH under a more relaxed (and less acceptable) definition, Al-Aulaqi would be targetable only while giving his speeches; he could not killed at other times, because DPH is an action, not a status.

We see, then, the real motivation of conservatives like Ken: not to reaffirm the “traditional” understanding of the laws of war, but to dilute traditional notions of combatancy and DPH so that targeted killings with no connection whatsoever to the conflicts in Afghanistan and Pakistan will be governed by IHL instead of by international human-rights law or — worse — American constitutional law.  And they accuse progressives of misunderstanding the laws of war!

5 Responses

  1. Again, as often before, I wonder what these scholars would say if such diluted notions of DPH and armed conflict were used against the US – if Iran were for instance to designate the CIA as a terrorist organization, would it be ok under international law for Iranian forces to target CIA agents all around the world? What standard would Iran have to show in order to do this? Wouldn’t the US insist on a showing (at the very least) that the targeted individual does qualify as a combatant in the armed conflict in question or is a civilian directly participating in that same armed conflict? Law mostly comes down to this: do you accept that the interpretation you are providing can also be used against you?

  2. For thousands of years the Pashtun tribes have occupied the area now associated with Southern Afghanistan and the Territories of Pakistan. The British may have drawn an imaginary line at the furthest extent of their control, but they do not recognize the border. Some members of the tribe prepare and train in Pakistani territory, then attack NATO forces on the Afghan side. It is one conflict in which they fight their tribal enemies. You, however, have decided that there are two conflicts, an IAC in Afghanistan and a NIAC in Pakistan, not because of any reality on the ground but because the distinction fits your model of international law.

    So if a Pashtun fighter is standing straddling the Afghan/Pakistan border, that means that one side of him is, by this type of thinking, engaged in an International Armed Conflict while his other half is engaged in a Non-International Armed Conflict. Worse, it appears that his two halves seem to belong to different enemy forces, or at least that appears to be the subtext of the theory. Does this mean that there are different rules for the military targeting of his left and right sides? Suppose he is killed by a bullet that goes through his body. Does it matter if the entry wound is in Afghanistan and the exit wound is in Pakistan? Can someone violating these set of theories be charged with half a War Crime?

    If a member of this same armed force travels to Yemen to help out in the training, equipment, and planning of a different armed unit, have they really joined yet a third armed force? I don’t know as a matter of fact. You may say that it is so by definition, because you think that your definitions under international law are enough and you don’t need any facts to prove the point. I would rather know something about the internal structure of the organization, its command and control, its personnel, and so on.

    It appears that the US government has made the determination that the enemy armed forces when they are in Afghanistan are the same as when they cross the border into Pakistan. Furthermore, a unit of these forces is present in Yemen, and Al-Aulaqi is a member of the unit. I don’t know if this is a fact or not, since I have no access to the intelligence on which such a judgment must be based, but I see no logical problem which precludes the possibility.

    Lawrence of Arabia was part of WWI even when he was far from British territory and part of an Arab uprising that could plausibly be regarded as an NIAC separate from the IAC in Europe. When John Paul Jones captured the HMS Drake on April 24, 1778 off the coast of Ireland, far from any battlefield of the Revolutionary War, he was part of an IAC from the American point of view, but part of a NIAC from the view of the British. Clearly the coast of Ireland was as far or farther from the battle as Yemen is from Pakistan. Prior to Pearl Harbor, US pilots joined the “Flying Tigers” in China to fight against the Japanese. They were part of an IAC, but the Japanese did not recognize their legitimacy . The Spanish American War was not fought in either Spain or the US. It was fought in Cuba and the Philippines, on opposite sides of the earth. When during the Civil War the CSS Alabama captured US ships off Brazil, South Africa, the Indian Ocean, and the South Pacific, was that an IAC or a non IAC, and what the heck does the South Pacific have to do with Gettysburg?  In Vietnam when divisions of the NVA marched down the Ho Chi Minh trail and engaged US forces in the South, was that a NIAC because superficially they pretended to be Viet Cong, or was the an IAC because they were really part of the regular army of a country? When they established supply lines through Laos, and the US bombed those supply lines, was that a separate conflict and if so was it IAC or NIAC?

    See, for about as long as there has been an International Law, an armed conflict was world-wide, between the armed forces of the two parties wherever they may happen to be. There are rules that we cannot bring our conflicts into the territory of a neutral country that enforces its neutrality, but there is no concept of locality and never has been. For as long as there has been war, armies send units wherever in the world they can achieve an advantage against the enemy. They respect no geography or borders, except for the borders of neutral nations that enforce their neutrality.

  3. If the Obama administration wants to make the argument that Al-Aulaqi is a member of a terrorist group in Yemen that is is functionally part of Al-Qaeda in Afghanistan or Pakistan, fine.  I haven’t seen such an argument; all I see from the administration and from conservatives is the claim that, because al-Aulaqi is involved with a group that calls itself al-Qaeda, he is targetable because there is an al-Qaeda group somewhere far removed from Yemen that is targetable.  Those are two very different arguments — and only the first is consistent with the laws of war.

  4. I must say that I am closer to Kevin than to Ken on this issue as it is here being articulated.   I, like Ken and Howard, understand the laws of war to apply functionally — to the “belligerent intercourse” of contending parties wherever they occur.  However, I agree with Kevin that combatant/belligerent status, or temporally-limited DPH status, is required for targeting.   Otherwise, an individual must pose an imminent threat or potentially, though international human rights law is unclear on this, have the equivalent of ”fleeing felon” status.

    With all of that said, I am uncertain of the full factual basis for targeting al-Aulaqi.  Is the proper analogy to a U.S. service member working at a recruiting station?  It might be, but we don’t have all the facts.  And, because al-Aulaqi is a citizen, the Constitution requires an “adequate” determination of targetable status (see Hamdi).  As I have said here before, though, the adequate evidentiary standard in such determinations is unclear in both U.S. and international law (as the D.C. circuit’s struggles in post-Boumediene habeas cases make clear). 

    I am quite doubtful of the propriety of judicial review, except maybe if it were so narrowly circumscribed that it would almost never exist.  Even then, I am uncertain of any proper jurisdictional mechanism for getting into court.  It would seem that one needs a Bivens action (given the limits of the Alien Tort Statute and Federal Tort Claims Act) in circumstances where the Bivens standard wouldn’t appear to be met because the constitutional standards are so much in doubt.

    I suspect where Ken and I part ways is on the exercise of self-defense against non-state actors presenting a threat to the U.S.  I do think his views of self-defense influence his view of the matter.  It is also my humble opinion that the issue deserves a more theoretically principled analysis than it is getting from most of the current parties to all sides of the debate.

  5. Al-Aulaqi may or may not be
    1) a member of an armed unit in Yemen engaged in continuous combat function
    2) that belongs to one of the parties to the armed conflict triggered by 9/11 and the AUMF.

    While I would agree that comments by bloggers do not necessarily assert that both questions are answered “yes”, I believe it was implicit in the US announcement of the targeting decision on Al-Aulaqi that they regard both criteria met.

    That then raises two procedural questions: What is the level of proof required regarding direct participation to allow lethal targeting (preponderance, clear and convincing, …) and is this military decision subject to judicial challenge.

    While judicial challenge to the intelligence that decided these questions of fact is inappropriate, any discomfort one may have that the administration is applying the wrong criteria might be resolved by a clear judicial finding about the application of law to the process itself (rather than the conclusion reached in any individual case). If Kevin can be reassured that the military is asking and answering the right questions (which he clearly does not believe) then we may move closer to consensus.

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