Two Questions on LOAC

by Kevin Jon Heller

I have no desire to have the final word with Ken.  But I would like answers to two questions. First, where does Melzer or the ICRC say that armed conflict is a geographically-bounded concept, such that a participant in an armed conflict ceases to be targetable as soon as he leaves the battlefield?  I cited pages in Melzer’s book on targeted killing that indicate otherwise, but instead of addressing my counter-argument, Ken simply reiterated his initial claim.  No cites, no quotes, no links, nothing.

Second, if we assume — as Ken and I do, and as I’m confident both Melzer and the ICRC do — that LOAC goes where the participants in armed conflict go, how does that justify targeting someone like Al-Aulaqi, who has never set foot in Afghanistan or Pakistan during the armed conflicts there and does not appear to have any operational ties to any of the participants in those conflicts?  Is it enough for a terrorist to self-identify as “al-Qaeda,” regardless of geography or functional connection to Afghanistan or Pakistan?

Ken has already indicated that he will not continue the discussion.  Perhaps a reader will?

8 Responses

  1. At best you can say that the US has never disclosed evidence that Al-Aulaqi has never been to the tribal areas of Pakistan. To assert that you know he has not suggests that either you have him locked up in your basement or else you have vastly more powerful intelligence resources than the US, the ISI,  or any other country. However, since the US claims that Al Qaeda has set up a military base and training camp in Yemen, he does not have to visit Pakistan to enlist, receive basic training, and become a soldier. He can do that all in Yemen.

    For over two decades, since it was formed, Al Qaeda has been primarily a fund raising organization. It obtains money from Saudis and other rich donors and originally used it to support the forces fighting the Soviets and now the forces fighting NATO. There is no country in the area where it does not maintain at least a civilian presence. If Al Aulaqi is only part of this fund raising and recruiting function then he is a civilian and not a combatant and may not be targeted. If he has, however, joined the armed forces and only does fund raising and recruiting in between planning attacks, then he is a legitimate target.

    Tactically it takes very little for them to redirect some of this flow of money and the arms and training it buys from Afghanistan to Yemen, or Sudan, or any other place they can establish an operational base. However, once the same organization establishes an armed unit anywhere on earth, it is a legitimate military target even if none of the military personnel in the base have been to Pakistan. Soldiers from throughout the Commonwealth fought on the side of the Allies during WWII even though many had never set foot in Britain.

    If the US cannot control sections of its own border from threats by Mexican drug lords, it certainly lacks the resources to shut down traffic in money, arms, and fighters between Pakistan and Yemen. I do not know where Al-Aulaqi has been, but I know for sure that neither you nor any other civilian knows the answer to that question. Nor can you be sure exactly what the ties are between the different operational units of Al Qaeda unless you determine their organizational chart, track their command structure, and enumerate all the participants. It may be that the US has not presented evidence that satisfies you that the requirements of international law have been met, but it is under no obligation to convince you of anything. It only has to satisfy itself that the criteria have been met. You are free to remain suspicious, but do not assert your suspicions as if they were proven facts. They are at best un-disproved allegations.

  2. That’s easy – so it is enough for Al Qaeda/Afghani government to claim that it had information that the people in the Twin Towers and/or in the planes were affiliated with a legitimate US military target to allow them to bring them down? Good for them! At most, 9/11 would be a disproportionate attack, then…

  3. “They are at best un-disproved allegations.” Isn’t that the crux of the problem? The fact one can be executed by Presidential fiat alone. No review, no court of law, no due legal process. How do we know the President is not just eliminating political opponents? More to the point, what happened to presumed innocent ….?

    Second, the notion anyone can be determined to be a legitimate target, regardless of any actual link to any battlefield is a horrifying thought. Once we allow the premise that the fact you are the neighbour of the sister of the classmate of the person using the same bookstore, et cetera we are in fact targetting the entire planet. In essence the assertion becomes: everybody, however implausable, is by definition a terrorist.

  4. “The fact one can be executed by Presidential fiat alone. No review, no court of law, no due legal process.”

    For the last sixty years the President has been followed everywhere he goes by a military officer carrying “the football”, a briefcase containing the launch codes for our strategic nuclear forces. The President has the absolute power, without review, without a court of law, without due process, to order the deaths of hundreds of millions of people. That is the way it is.

    Nobody can become a military target by being a “terrorist”. You have to be a member of a regular enemy army, or else a member of an enemy armed force in an armed conflict with the US who engages in continuous combat function. A “terrorist” is a criminal who can be arrested and charged with a crime. An enemy solider can be killed in combat without arrest or trial.

    Sometimes armies use terror as a strategy (see William Tecumseh Sherman with reference to Atlanta). If they are targets, it is because they are soldiers and not because they incidentally use terror.

    Guy – Nobody doubts that in an armed conflict the Pentagon was a legitimate military target. If the same 19 guys had decided to hijack Federal Express cargo planes and crashed them into the targets, we could argue about whether the World Trade Center was more or less legitimate a target than places the US bombed in Vietnam or Baghdad. However, the 19 guys were too cheap, lazy, or stupid to learn how to take off, so they hijacked a commercial passenger jet already in the air. That is air piracy and it is never a legitimate military tactic. That made them criminals after which even the attack on the Pentagon was a crime and not a legitimate act of war.

    Soldiers are killed on battlefields, but they can also be killed behind the lines far from any actual battle. One of the first Predator strikes killed Mohammed Atef, the top ranking Afghan Army commander of foreign born troops, including the 055 Brigade. He had been located by signals intelligence from the phone he was using to relay orders to his forces in retreat. The fact that we knew his name or that he was miles away from any allied soldier or battlefield did not matter. It also did not matter that KSM, who commanded the 9/11 attack, reported to Atef who in turn reported to Bin Laden.  Atef was not killed because he was a terrorist. He was killed because he was a high ranking commander of enemy forces in an armed conflict.

    In war you kill enemy soldiers without legal process. Most of the time you don’t know their name. However, the principle of discrimination requires the US to kill only soldiers and not civilians. When the enemy does not wear uniforms and follow international law, the only way we can meet our obligations under international law is to gather evidence and determine, individual by individual, who is an enemy soldier and who is not. Then we kill the soldiers and we don’t kill the civilians.

    If the US did not make discrimination decisions, then the critics would complain that we are committing war crimes. When we do it, then the critics complain that we are engaged in assassination. So until someone presents an alternate mechanism, it appears that nothing will satisfy the critics and the US will just have to ignore them.

  5. Kevin, regarding the geographical scope of armed conflict, see Article 6(2) of the Fourth Geneva Convention, Article 3(b) of the first Additional Protocol, as well as Robert Kolb, Ius in bello: le droit international des conflits armés, Helbing & Lichtenhahn, Basel, 2003, page 106, and Eric David, Principes de droit des conflits armés, Bruylant, Brussels, 2002, pages 230-231.

  6. “If the US did not make discrimination decisions, then the critics would complain that we are committing war crimes. When we do it, then the critics complain that we are engaged in assassination. So until someone presents an alternate mechanism, it appears that nothing will satisfy the critics and the US will just have to ignore them.”

    While agreeing that discrimination decisions have to be made, what about differences between military vs. intelligence apparatus discrimination decisions. 

    If, for example, military targeters are unwilling to designate someone as a target, but the intelligence community is willing to designate the person as a target the conflict I would imagine would be resolved at the Principals level. 

    The Principals never or rarely have an incentive to not target someone, so the intelligence targeting would appear to prevail. 

    I am not sanguine about National Security Principals having any well-founded empathy for loudmouth dissenters – nor that there is much empathy in the general public for dissenters who are presented as unsavory and unAmerican.

    Thus, the military discrimination is overridden by the intelligence discrimination.  In the meantime, the target like an Aulaqui protests they should not be a target and goes into hiding.

    Read the ICRC Direct Participation in Hostilities guidance (thanks Howard Gilbert) and its predicate of armed conflict.  I felt again that linguistic/deconstructionist unsettled feeling that each word becomes so elastic – but I do sense the thing behind the words.

    I know we can not go to the common law enumerated lists approach here, but the effort to have a maximized and realistic vision of civilians for purposes of a protection appears to be at the intersection of what International Humanitarian Law and International Human Rights Law and Alien law are trying to do (and should be trying to do) to protect civilians from the monopoly on violence of the state and/or the oligopoly/duopoly on violence with non-state actors hiding among the civilians.

    So we come back to “trust us” meaning the Executive and the Oversight by Congress.  But, I have absolutely no confidence in the political branches to do anything more than ratchet up the national security concerns (broadening the targeting) in the US.  There is no payoff for them politically for doing otherwise.  And the courts waive the state secrets flag as the 9th Circuit did yesterday (admittedly with foreigners).  We have to await the Padilla and Yoo 3 member 9th circuit opinion to see whether – at least for citizens – our federal jurisdictions will take a view of their jurisdiction to adjudicate that might include protecting American citizens from Executive/Legislative claims.

    Another aspect of this in the United States is that systemic failures of the federal level were foreseen by the founders and they saw the state level as a “double security to the rights of the people” (badly quoting Madison in one of the federalist papers).  Maybe with states closer to the people, states might be willing to step in to raise concerns about their citizens being unfairly targeted.  The venues for raising these issues are the traditional ones – but this might be a way for federal madness in war to be tempered by precisely those who do not carry the burdens of declaring war who are willing to live with errors of judgment and mistakes but are not willing to live with criminality in the federal level.


  7. As is evident from current practice and existing literature, neither issue is beyond debate. Dr Noam Lubell’s recent book  “Exterritorial Use of Force Against Non-State Actors” deals with many of these issue’s and is definitely worth a read.



  8. Ben: The traditional civilian criminal motto is that it is better that 100 guilty people go free than that one innocent man get convicted. The problem here is that it is better that 10 innocent civilians be killed than that one enemy go free, drive a car bomb into a crowded market, and kill 250 women and children.

    I will accept your distrust of the ass-covering bureaucracy that might be willing to shoot first and let God sort them out, if you will be willing to admit that none of the traditional models, military or civilian, criminal or combat, exactly fits the problem. Ideally everyone would stop talking in cliches, and recognize that there is no moral black and white, and everything is inherently very fine shades of gray. Then we could start thinking about the trade offs and consequences of both action and inaction, and perhaps take meaningful steps to a consensus. Otherwise the outcome will remain a bureaucratic process instead of an application of principle, and that always takes the line of least resistance instead of searching for the saddle-point optimum.

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