More Thoughts on Targeted Killing (A Friendly Reply to Wittes)

by Kevin Jon Heller

Human Rights Watch’s Tom Malinowski and Ben Wittes — whom, for the record, I consider a friend — have been having an interesting and useful dialogue about targeted killing.  Here is how Malinowski lays out HRW’s position:

Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have at times been met in Yemen — for example, if there is credible evidence that a targeted individual is planning attacks on the US, the threat is imminent, and he or she is in a place where an arrest operation would be impossible. And if such conditions have been met, a case could also be made that drones are one of the best weapons from the point of view of reducing the likelihood of harm to civilians, since they deliver small warheads with precision, and can hover over their targets to observe if civilians are present. (We are concerned about the overzealous use of drones, particularly in the absence of on-the-ground intelligence to guide them, but they are better than most alternatives).

But the administration has not made this case. It has not laid out a clear legal rationale for drone strikes in Yemen or anywhere else. It has not explained what if any limits exist on the president’s ability to order targeted killings. Who can be targeted? Can strikes be launched anywhere on a global battlefield, or only in ungoverned areas where arrest is impossible? Does the threat have to be imminent and if so how is that defined? How does the United States distinguish between the targeted killings it believes are lawful and those it would consider outrageous (say, if the Russian or Chinese governments declared a political enemy a threat to their national security and on that basis killed that person on the streets of New York or London)? The US is not the only country in the world with the capacity to kill its enemies beyond its borders. It is profoundly unwise to legitimize the tactic without establishing the limits on its use.

The assumption Ben makes about our views on drone strikes reflects, I think, a common misconception about Human Rights Watch – that our sympathies always lie with those who are subject to the coercive power of governments. In fact, we often find ourselves urging governments to use their coercive power more assertively to protect civilians. We want to see Joseph Kony and others responsible for atrocities – whether they are abusive leaders in countries like Sudan, or terrorists who kill civilians, brought to justice. When governments cut deals with rights abusers, we condemn them (as we did when the Musharraf government in Pakistan ceded territory to the Taliban, with the toleration of the Bush administration). At the same time, we subscribe to what was once thought a conservative principle – that governments’ coercive power, especially the awesome power to deprive people of liberty and life, must be exercised within limits defined by law that protect due process and human rights.

Ben thinks that this understanding of targeted killing is similar to his:

Among other things, Tom’s statement provides a real basis for describing some common ground on drones. Human Rights Watch here has sketched out a position quite distinct from that of the ACLU and CCR, and that is worth a lot. Indeed, in many ways, HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi. So in addition to admiring the seriousness of Tom’s statement, I am very pleased to learn that the distance between us is actually narrow.

[snip]

More fundamentally, I am delighted to see that the HRW has given a clear and very constructive answer to my question about intermediate uses of force. I asked whether HRW would support taking out Joseph Kony with a Predator if that were possible. Tom’s answer? “We see this as a law enforcement operation, in the sense that the primary objective should be to capture Kony and others wanted by the ICC and deliver them to justice. We also recognize that lethal force is sometimes necessary in law enforcement operations when there is an imminent threat to life, and that this is a plausible outcome, given the nature of this group and of the terrain where it hides.”

Now I wouldn’t frame this as a law enforcement operation, but that’s quibbling over details. Though I question the realism of the project, it’s worth emphasizing that both Tom and I think it is legally and morally appropriate to use force to capture or if need be to kill Joseph Kony in the name of justice and civilian protection.

Now consider Yemen. Here Tom’s statement is remarkable: “Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have been at times met in Yemen–for example, if there is credible evidence that a targeted individual is planning attacks on the U.S., the threat is imminent, and he or she is in a place where an arrest operation would be impossible.” In such situations, Tom writes, drones may be the most discriminating–and therefore most desirable–option.

I suspect, though I don’t know, that there is daylight between our positions here. Tom and I likely have a modestly different sense of what imminence means, at a guess…

That said, the much more striking point than any difference between us is the common ground: Our framework here is virtually identical. To wit, we both believe targeted killings outside of the battle space can be appropriate and lawful in situations in which safe havens in ungoverned spaces make law enforcement options unavailable and the government is left with no other means of reaching military enemies of the United States actively plotting attacks. All the rest is commentary. And while the commentary is important–I think Tom and I would both agree on the importance of whatever differences remain–it is critical to remember which is the commentary and which is the text.

I may be misunderstanding Malinowski — and I hope he will correct me if I am — but I think that the differences between Ben and HRW are much greater than Ben believes.  Before turning to that issue, however, I would question Ben’s claim that “HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi.”  How, exactly?  The lawsuit has never questioned the US government’s right to kill individuals who are combatants in an armed conflict, which is a basic principle of IHL.  Instead, it argues (1) that Al-Aulaqi does not qualify as a combatant in an armed conflict, because there is no NIAC in Yemen; and (2) that, as a result, his targeted killing is governed by international human-rights law (IHRL) and by US constitutional law, both of which impose meaningful limits on the government’s right to use lethal force against him.  HRW may disagree with one or both of those claims, but I doubt it.  After all, Malinowski expressly states (my emphasis) that HRW “subscribe[s] to what was once thought a conservative principle – that governments’ coercive power, especially the awesome power to deprive people of liberty and life, must be exercised within limits defined by law that protect due process and human rights.”

I am also skeptical that HRW’s position on targeted killing is all that similar to Ben’s.  To begin with, I do not think that it is “quibbling over details” for Ben to describe the situation in Uganda as an armed conflict and HRW to describe it as a “law-enforcement situation.”  As a legal matter, I’m with Ben — I think there is (at least) a NIAC in Uganda between the LRA and the Ugandan government, making targeting decisions against people like Kony subject to IHL.  The more important point, though, is that it makes a fundamental difference whether a particular targeted killing takes place in armed conflict or in the context of a law-enforcement operation: the former is governed by IHL, while the latter is governed by IHRL.  Those are two completely different regimes, and the latter imposes more significant restrictions on the use of lethal force than the former.  Indeed, the only restrictions on targeted killing in the context of IHL are the principles of distinction and proportionality.

That said, I think it is important to emphasize that it is a mistake to assume — as many progressives do — that targeted killing is essentially incompatible with IHRL.  Nothing could be further from the truth, as Marko Milanovic has pointed out:

However, targeted killings may, in some circumstances, be justifiable within the framework of the human rights treaties themselves. Article 6(1) ICCPR thus only prohibits arbitrary deprivations of life, while Article 2(1) ECHR allows for intentional taking of life when it is ‘absolutely necessary’ to do so to defend other persons from unlawful violence, to effect a lawful arrest, or to quell a riot or insurrection. It should not be forgotten that even democratic states frequently employ lethal force, even in situations with possible collateral damage – just take the examples of a hostage taking, or shooting fugitives to prevent their flight.

What human rights treaties invariably require, however, is a showing by a state that the killing was necessary; that other, non-lethal options were explored but were not viable. If a drone were to some day kill Osama bin Laden, whether he’s holed up in some cave in Pakistan or, to get rid of the extraterritoriality problem, is found hiking the Appalachian trail, this would not constitute a violation of his human rights if his actual arrest was difficult or impossible. It is only this proportionality analysis which can determine the lawfulness, vel non, of targeted killings. This is, indeed, how the Israeli Supreme Court looked on the matter in its Targeted Killings case. Accordingly, what is necessary is an individualized and factually supported determination – a blanket policy of killing is not permissible.

I removed a post last week about the recent — and rather nasty — targeted-killing debate between Ben and Mary Ellen O’Connell, because an email discussion with Ben convinced me that my post was inaccurate.  I don’t want to rehash the post; my basic point was simply that it was wrong to assume, as I believe Ben did, that O’Connell thinks all targeted killings outside of armed conflict are murder, because she claimed during the debate that Ben was making a “zero-sum argument, as if, if you can’t find a way to kill individuals under the law of our conflict,  you can do nothing.”  O’Connell did not explain that point, but I think it’s clear that she was referring to what I’ve argued above: namely, the fact that IHRL does not necessarily prohibit targeted killings.

Returning to Ben and HRW, I also find it difficult to believe that Ben would fully endorse this statement by Malinowski (my emphasis): “Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative.”  The second option seems to impose an IHRL-like restriction on IHL — insisting that the use of lethal force against a combatant outside the territorial borders of armed conflict must be necessary.  If that is HRW’s position, I don’t agree with it: although I reject the US’s woefully overbroad definition of “combatant” (as essentially any member of any al-Qaeda group anywhere), I think there is little question that a genuine combatant can be targeted at will (subject, of course, to the principle of proportionality), regardless of whether the use of lethal force is necessary.  I imagine Ben would agree with me about that!

Finally — and this is perhaps my fundamental point — I think Ben significantly understates the matter when he claims that “Tom and I likely have a modestly different sense of what imminence means.”  As I have noted before, Ben has an extremely expansive understanding of imminence, as indicated by his analogy between killing Al-Aulaqi and killing someone who is holding hostages:

Yes, the action is being contemplated by military and covert operatives, not cops and and not pursuant to law enforcement authorities. And yes, the threatened harm is, in a temporal sense, less imminent. Anwar al-Alauqi is not, after holding hostages. In another sense, however, the situation is far less controllable and much more threatening than a mere hostage standoff. Police, after all, cannot simply surround the building and wait him out. The threat extends far beyond the people the hostage-taker has in his immediate presence. The nature of terrorist plots, which involve great secrecy and operational security, means that authorities may not know how imminent the threat is; hostage takers are less subtle.

Malinowski says that targeted killing in a law-enforcement situation is legitimate only when the “threat to life is imminent”; Ben’s statement contains no such temporal limitation.  Indeed, it seems to specifically reject the idea that temporal imminence is required.  That, I think it is safe to say, is a fundamental difference between Ben and HRW — text, not commentary, to use Ben’s terms.

http://opiniojuris.org/2010/10/31/more-thoughts-on-targeted-killing-a-friendly-reply-to-wittes/

8 Responses

  1. A couple points are being missed in this discussion. First, the rights to life and humane treatment under the ICCPR apply to armed conflicts because they are non-derogable and peremptory. See Coard v. U.S., Inter-Am.Cm.H.R. (1999). Furthermore, these rights represent the lex specialis applicable to armed conflicts because they provide greater specificity than the Proportionality Rule and the Superfluous Injury and Unnecessary Suffering (SIrUS) Prohibition Rule under GC-Prot. I and Hague Convention. The rights to life and humane treatment impose a very tough standard: use of lethal force may only be used if strictly or absolutely necessary. At the very least, the Proportionality and SIrUS Rules require a construction in conformity with the rights to life and humane treatment, according to the treaty interpretation law. See VCLT, art. 31; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. Reports 16, 31 (1971); Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. Ser. A, No. 10, at ¶ 37 (1989).
    Second, an “imminent threat” of violence provides no legal justification for use of force. (However, an “imminent attack” can provide legal justification for use of force in some cases.) The only way that one can know whether another person poses an imminent threat is to be able to read the other person’s mind.

  2. Response…
    There is a third paradigm, self-defense outside the context or war or during war.  Further, human rights apply when a person is within a state’s jurisdiction, actual power, or effective control — not when a high-flying drone lawfully targets a person taking a direct part in armed attacks or hostilities.  See
    http://ssrn.com/abstract=1520717
    –the final version.

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  4. […] I’m now responding somewhat belatedly to the contentious debate that occurred a couple Saturdays ago between Benjamin Wittes of Lawfare and Mary Ellen O’Connell of Notre Dame law school.   In the debate, O’Connell argues that most of the Obama administration’s drone strikes in Pakistan have been unlawful while Wittes argues the opposite.  Wittes posted video of the debate here and additional commentary here.  The debate continues, as Human Rights Watch has weighed in, with responses by Wittes here and Kevin Jon Heller here. […]

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