Bobby Chesney on Targeting Al-Awlaki

Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen.  It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks.  Here is his comment at Lawfare; the draft paper is up on SSRN at this link.

My comments on an initial read?  First, I agree with the overall structure of the analysis — the questions and the order of raising them.  One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action).  This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns — safe havens — gives up its sovereignty and right to territorial integrity to that extent.  Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, it seems to me a far more important legal principle in addressing terrorist groups than sovereign consent.  The politics and diplomacy of that might be a very different matter, of course.

My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category.  However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise as more facts have emerged.  In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground.  It would in my view be on firm ground either way.  However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances.

With respect to pure human rights law, outside of armed conflict law, I would emphasize a couple of things. One is that I am not especially convinced that the international human rights law of extrajudicial execution is applicable to extraterritorial actions, at least in these ways — even if one grants, as the US does not, that the International Convention on Civil and Political Rights (ICCPR), for example, applies extraterritorially.  The US government has responded to the Special Rapporteur on Extrajudicial Execution that it regards his inquiries as beyond his legal mandate because they run to armed conflict, and therefore outside of his remit.

I’d add (and I haven’t double checked; perhaps the Obama administration has actually said) that even outside of armed conflict law, targeting of this kind is simply a different activity than extrajudicial execution or “disappearances” undertaken by a state against its population within its own territory.  The Special Rapporteur has been unilaterally rewriting his mandate, in my view, even beyond the armed conflict question.  I would also stress that the US remains fully committed to the view that its obligations under the ICCPR do not run extraterritorially, and that its view of the interaction of human rights law in situations of armed conflict is far, to say the least, from the ever-expansive views of academics, activists, and international officials.

The draft article correctly stresses necessity as an element of the decision to target; this will always be the case in any use of force situation.  But the real debate lies over the question of how close a connection one must show between Al-Awlaki, in this case, and threats of violence, particularly a temporal connection.

In that regard, I think the US standard of “active self-defense” that runs back at least to the 1980s remains the relevant standard.  A pattern of behavior by a group, including over a long run of time, with which the person is associated formally or informally is enough; it is not a specific plot or thing about to happen now — the accumulation of evidence of a threat is sufficient, and a government is not obliged to time its response to some immediate threat of violence.

Nor, in my view, is necessity some overly-stringent requirement of showing targeting as the only feasible means of dealing with the threat. I would anticipate that the human rights advocates, while perhaps being strategically careful not to deny the ability ever to target in principle, would seek to achieve the same functional result by raising the necessity bar so high that in practical terms it could never be met.  I don’t think there is any obligation to go there, and the US government should be clear about that so as to remove any possible doubt that it does not see itself as having to make any particularized showing, even internally, on that issue.

Finally, US government officials have been very clear in press articles that, while refusing to reveal specifics for obvious reasons, Al-Awlaki is deeply implicated in operational matters of AQAP. That being the case, it removes the necessity for the administration to address whether Al-Awlaki’s incitement alone, whether broadcast across the internet or specific recruitment and encouragement of people to commit acts of violence, would ever be sufficient reason to target him.  At some point, however, I don’t think the credible incitement to actual violence as potentially being a ground to target someone who is beyond the ability to pick up and judicially charge, but who is able to coordinate incitement to violence over the internet in credible and actual ways, can be elided.  It doesn’t have to arise in the Al-Awlaki case, but at some point the question will have to be confronted directly.

Here is the SSRN abstract:

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances. Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied. Part III then turns to objections rooted in IHL and IHRL, beginning with the question whether an attack on al-Awlaki would fall within IHL’s field of application. I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, it has been crossed as well with respect to the United States and the larger al Qaeda network – and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs. A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).