13 May Who Needs International Lawyers When We Have Ilya Somin? (Updated Again)
Here I was, thinking that targeted killing raised complex and contestable legal issues that required painstaking analysis. Fortunately, Somin sets me straight at Volokh Conspiracy by pointing out that, as a simple matter of logic, there is no legal difference between killing Admiral Yamamoto during World War II and killing a terrorist anywhere in the world today:
But most of the debaters have overlooked a key point. If it is moral and legal to individual target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case law and morality give the latter greater protection than the former.
What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.
First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies.
In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.
Yes, surely! Stupid international lawyers, “overlooking” the obvious point that there cannot possibly be a difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war.
Nothing to see here, people. Everything the U.S. does is fine. Move along…
UPDATE: Somin responds to my post by claiming that I provide “no substantive critique” of his argument. First, I have written extensively on precisely the IHL issues that he ridicules, most recently here. Second, Somin did not make a substantive argument, other than to claim that the “enormous scale” of al Qaeda’s activities qualify as a “war.” That’s empty rhetoric, not an argument. Who counts as “al Qaeda”? What kind of armed conflict is it? What status do “terrorists” have in that “conflict”? Are all terrorists equally targetable? All the time? Somin makes no attempt to address, much less answer, any of those questions — because, of course, he is “surely” correct and we dumb international lawyers have “overlooked” the obviousness of his conclusions.
If Somin wants to engage with the legal issues instead of simply assuming that he is correct, I’m happy to provide a substantive critique of his argument.
UPDATE 2: Somin replies again, and only makes things worse for himself. He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.” Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.
That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines. It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan. As reflected in Common Article 2 of the Geneva Conventions (and this is really IHL 101), international armed conflict can exist only between states. By Somin’s own logic, therefore, it is only legal to target terrorists who are part of an international armed conflict between states. And that means UBL’s killing was actually illegal, because the international armed conflict between the U.S. and Afghanistan ended when the Taliban lost power in 2002.
UPDATE 3: Somin now claims that “[n]othing in Heller’s argument turned on a distinction between ‘international’ and ‘non-international’ armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction.” Apparently, he is unaware that we are talking about NIAC when we examine “whether hostilities rise to the level of armed conflict”; there is, as readers know, no threshold for international armed conflict. And, of course, my discussion with Marty Lederman specifically discussed NIAC — again and again — in relation to the combatants’ privilege.
Somin also fails to understand Hamdan. He writes:
As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.”
The first part of that statement indicates that Somin has no understanding of the concept of belligerency: as I’ve noted before, the reason the Civil War qualified as a war and not an insurrection was that Europe formally recognized the conflict as a state of belligerency and declared itself neutral in the conflict. And the second part of the statement just concedes my point that Hamdan recognized that the “war” with al Qaeda did not and could not qualify as an international armed conflict.
Oh, and by the way, Somin also grossly mischaracterizes Hamdan. The majority opinion used the expression “war with al Qaeda” precisely twice — and both times when the majority was characterizing the Court of Appeals’ decision that it was rejecting: “The court accepted the Executive’s assertions that Hamdan was captured in connection with the United States’ war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions.” The majority never referred to the conflict with al Qaeda as a war, because it — unlike Somin — understood that “[t]he term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”
Someone’s hole is indeed getting deeper. But it’s not mine.