The Boundaries of the Battlefield

by Michael W. Lewis

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

http://opiniojuris.org/2011/05/15/the-boundaries-of-the-battlefield/

17 Responses

  1. Michael, thanks for taking time to post on this.

  2. Excellent post.

  3. wonderful. i agree, but i will await the response from ejil-talk. im sure marko will have something to say about this issue

  4. It was ruled in the Somalia v Secretary of State for the Home Department of 2008 (by a UK immigrations tribunal) that “Tribunals should endeavour to identify both the territorial area in respect of which international humanitarian law applies (following the identification of an internal armed conflict) and, where feasible, the parameters of the actual zone of conflict”. Arguing for an extraterritorial NIAC, in the sense that the conflict simply follows the terrorist around wherever he goes, would create an unbearable reality. Courts would never be able to set the relevant zones of conflicts and parameters for the applicability of IHL and states would be given complete autonomy in breaching their neighborint states’ territorial borders whenever they presume that a terrorists with whom they are in conflict has entered such territory. Given the fact that almost all states today harbor with or without their knowing or will terrorists – this interpertation of IHL is too radical.

    It is one thing to accept the Hamdan ruling or to believe in the possibility of a spill over NIAC in the great lakes’ region and its another thing to argue that one can simply take a drone and fire at will only because at one point in time that State had a conflict which reached a level of NIAC with a non-state actor somewhere around the globe.

  5. Asaf,

    This interpretation of IHL does not allow a nation to “fire at will” at any suspected terrorist regardless of their location.  The limitations on the ability to do so are found in the necessity to get permission from the host state.  Without such permission there has to be a finding that the host state is unable or unwilling to apprehend the individual themselves.  There was plenty of evidence that Pakistan was unwilling to apprehend bin Laden.  In Yemen there is a good deal of evidence that the government is unable to apprehend Aulaqi (considering that he was convicted by a Yemeni tribunal over six months ago and is still at large). 

    The one question about Aulaqi that others have raised is whether AQAP is involved in a NIAC with the US.  AQAP probably cannot reach the NIAC threshold on their own, but would have to do so as an “allied organization” of al Qaeda.

  6. This is not my area of specialization, and I’m not trying to impugn Michael specifically, but it seems to me that the same conservative voices who argued that nonstate actors like alQaeda captured on the battlefield were not entitled to POW status because of their irregular character and the non application of IHL to them back during the Bush administration, are often now the same people who are heard to argue that terrorist groups are legitimate targets for killing under an application of IHL no matter where they are in the world. These arguments seem both ironic and mutually exclusive to me. I dont think one can have it both ways.
    Dan Joyner 

  7. Under this analysis the only limiation on the applicability of IHL is grounded in Jus Ad Bellum, in standards of necessity. Therefore we throw out the window the Tadic criterium of organization, duration and intensity and we allow for states to drag armed conflicts to new terrains following the footsteps of the terrorist. This is in fact enhanced by the decision to affiliate some terrorist organizations with others. Thus we basically create an ‘all encompassing war on terror’ that knows no boundaries (or limited Jus Ad Bellum boundaries). The problem with this is that IHL allows for some collateral damage to civilians and civilian objects in carrying out hostilities. Therefore we provide no protection to a civilian yemenite who has nothing to dbo with Aulaqi or with his state’s inability to incarcerate him.

    The alternative might be found in a Human Rights paradigm. Under a Law Enforcement analysis the incarceration and even killing of a suspected terrorist would be equally lawful (of course assuming it meets the harsher tests of necessity and proportionality under IHRL). Therefore we can still tackle terror abroad, still ensure Jus Ad Bellum standards – all without applying IHL across the board and risking civilian lives.

  8. The ICRC guidance makes it clear that the question of who may be targeted and the question of who is protected under the Geneva Conventions are distinct. While members of the regular armed forces are both subject to targeting and protected, members of armed units of a non-state party to a NIAC engaged in CCF are subject to targeting but are not protected by IHL. The Bush administration claimed that the main Taliban armed force was a massing of tribal militia that failed to meet the “four part test” of Article 4 of GC III and was therefore subject to targeting but not protected even if the conflict with the Taliban was an IAC.

    It is reasonable to argue that the Bush argument was wrong, that the Taliban army was the regular armed force of a Geneva signatory, its soldiers were entitled to protection under the Third Geneva Convention, and prosecution of individual soldiers for Material Support would have been found to be illegal had they not agreed to a plea bargain. However, that error has nothing to do with targeting.

  9. Asaf,

    We do not throw out the Tadic criteria.  They must be met for there to be a NIAC.  They are met with respect to al Qaeda and the US, therefore there is a NIAC involving those two parties.  You are suggesting, however, that al Qaeda members may temporarily remove themselves from the NIAC by going to Yemen, for example.  They may remain there until they are ready for their next operation, then they can continue their participation in the NIAC at a place and time of their choosing.  Reading IHL to grant them the that benefit, the strategic initiative, undermines IHL’s central purpose which is the protection of the civilian population and non-participants in armed conflict.

  10. This is a wonderfully insightful and useful post.  Thanks.  It contains the best and most rational legal explanation I have yet seen for the seeming paradox that non-state fighters (either DPH or CCF) involved in a NIAC with a state may be lawfully targeted as if they were combatants, while being denied the privileges of combatant status.  You have shown that there is no “irony” nor any double standard, but rather that “IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.”

    This is a keeper.

  11. To argue (as Lewis) that IHL would apply to the target killing of a terrorist group member residing in the peaceful and government controlled Suisse Alps, is a perversion of the concept of IHL.
    Humanitarian Law is an exceptional legal regime for exceptional situations in which human rights are at stakes as the result of a military conflict.
    E contrario the conclusion has to be,  that on territories where human rights are not at stakes as result of military conflict in the first place (because they are not within the area of the NIAC), IHL does not apply but rather the civil legal regime.

    To say otherwise puts the cart before the horse:
    It would transform IHL from a protectionist legal framework to a regime that would service states as legal justification to use military force in places where there is no conflict and where the common civil law framework is effectively protecting human rights.

    I conclude:
    No state is entitled to use military force on enemy combatants of an NIAC while they are residing on third-party territory in an area over which not the enemy but a sovereign government exercises control.

    I dont think there is a big issue with possible sanctuaries for terrorist organizations (which is the only argument for this global battlefield non-sense).
    If law enforcement should be ineffective in such country, ICC law enforcement could step in.

  12. I completely agree that this is an excellent post with one very small caveat.  I think it overlooks a potentially important original goal of the “organization” and especially “IHL compliance” criteria.  That goal is very important to those now wishing to delimit the material field of IHL’s applicability, and is mentioned in my comments to Ken’s earlier post. 

    I think it is reasonably clear in the negotiating histories of the Geneva Conventions and their protocols that states limited the application of IHL in NIAC to sufficiently organized, IHL-compliant groups – those akin to “traditional” armed forces – in order to preserve flexibility in dealing with domestic disturbances/uprisings.  We must recall that these treaties were concluded before a strong conception of “international” or “universal” human rights emerged (not including genocide and significant crimes against humanity).  Having undertaken very few express international obligations for dealing with widespread violence not approximating “traditional” armed conflict, states (including autocracies) were free to deal with such violence under their domestic law…and under the protective veil of state sovereignty.   In other words, historically at least, the requirement for IHL organizational compliance reflected in the “under responsible command” standard was not solely an incentive issue regarding access to the combatant’s privilege.   It went to whether IHL constrained a state’s conduct at all.

    Those wishing to delimit IHL’s application to active battlefields wish to fill this normative gap in conventional IHL with human rights law.  The U.S. position, it seems to me, is either to fill the gap with customary IHL or with IHL by analogy (because neither IHL nor human rights law applies).  For example, Jack Goldsmith and Curtis Bradley have argued that IHL “informs the nature” of presidential powers conferred by the AUMF but doesn’t limit those powers.  In other words, no law truly applies these extraterritorial uses of force, but we should understand those powers to be war- or IHL- “like.”  This seems also to be the approach being taken by the lower federal courts regarding issues like co-belligerency, etc.

    Such lex ferrenda arguments are permissible in a common law legal system, much less so in a civil law legal system.  This may be why Kevin perceives that this is an idiosyncratic, strictly U.S. view of things.  I am open to being corrected but it seems to me that a lawyer raised in the civil law tradition would likely reject any resort to the lex ferrenda.  Normative gaps are to be filled with available law (lex lata) if possible.  This very naturally leads to the rejection of applying IHL as an exclusive lex specialis and in favor of its complementary application with human rights law.

  13. Response…
    With respect to the many commentators, I disagree with so many points.  My postings on EJIL talk contain points that I would make here re: (1) its an international armed conflict (but not one with al Qaeda as such), (2) a DPH can be an otherwise ordinary civilian and targetable whether or not they are members in an insurgent, belligerent, nation, or state’s armed groups, (3) there is no limitation of the inherent right of self-defense requiring the foreign state to have been unwilling or unable to polce its territory (especially when the rockets are raining down across the border in a period of 5 or ten minutes), (4) IHL is “exceptional”? and so? the “exceptional” situation presented is where bin Laden et al have misued neutral territory to plan, authorize, and initiate armed operations and other acts of violence into Afghanistan, (5) human rights law does not apply regarding U.S. actions in Pakistan unless and until a U.S. force has “effective control” over a relevant person, such as bin Laden (and the Obama Admin. says they did not, he had not surrendered or attempted to do so in a circ. where he was under effective control), (6) the inherent right of self-defense is a U.N. Charter-based limitation on sovereignty that has actually been recognized as a CIL limitation prior to and since the Caroline incident (see my article http://ssrn.com/abstract=1520717 ), (7) members of al Qaeda would have Geneva common art. 3 rights whether or not al Qaeda follows the law of war (inernational or internal armed conflict) and regardless of their status once they are taking no active part in hostilities (or a DPH under Protocol I), (8) if the armed conflict involving armed forces of the U.S. and several other countries in Afghanistan and across the border into Pakistan and involving the armed forces of Afghanistan against the armed forces of the Taliban is merely a NIAC (which lacks common sense), how can the Navy Seals have “combatant” status and “combatant immunity” for lawful acts of war during an international armed conflict and not be prosecutable for murder under relevant domestic law?, (9) the serial criminality of the Bush-Cheney Administration and their manifestly erroneous claims should not be used to justify violations of the laws of war or human rights law (see http://ssrn.com/abstract=1331159 ; http://ssrn.com/abstract=1470945 ) and they are unnecessary with respect to the debate about permissible targeting under the self-defense paradigm or the law of war paradigm and, of course, the U.S. can use military force to kill or capture bin Laden et al on Pakistani territory without Pakistani consent and whether or not the government of Pakistan had been unwilling or unable to do so (which, may very well not have been the case merely because, as merely speculated, a few Pakistani military or intelligence persons knew where bin Laden had been hiding).  Let’s not forget who is misusing otherwise neutral territory and has breached the laws of neutrality.

  14. “If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? ”

    Can the host state invoke its Article 51 right of self-defense against the state actor party in the NIAC who acts in its territory without its consent?   Can the host state invoke its mutual defense treaty with other states against the state actor party in the NIAC who acted in its territory without its consent?  Can the host state seek Security Council intervention against the state actor in the NIAC?  Can the host state seek united for peace in the General Assembly against the state actor in the NIAC?

    I am not sure all positing this are understanding the dimensions of what they are suggesting in the absence of consent by the host state.  These are a couple of questions that came to mind.

    Best,
    Ben

  15. Doesn’t analogous application require loophole without intent? And isn’t it doubtful, whether parties at time of ratification - had they envisioned the issue of extra-territorial killings – would have consented that this should be governed by Art. 3 GC?
    After all, an analogous application means extension of rule of law from the battlefield on to the territory of (possibly) neutral states.

  16. I am coming more to cases. 

    Israel in an NIAC with the PLO bombing the PLO office in Tunis is considered I Law compliant without Tunisian consent because Tunisia was unwilling or unable to “do something about” the PLO? 

    US in an NIAC with AlQaeda going after Aulaqui in Yemen (stipulate he is part of AQ Central for ease) or Bin Laden in Pakistan without host state consent as being Ilaw compliant?

    If these attacking states assert right of self-defense basis in the absence of consent, the host states also have an armed attack now that permits the host states to assert right of self-defense.  And then the host states go back and attack the state that came in – which in turn asserts a right of self-defense and the spiral gets started.

    The “unable or unwilling” as the trigger or excuse for the state asserting the power in an NIAC to attack a non-state actor in the host state and that being legal.   That sounds like sophistry.

    It would seem much clearer to be an assertion of the attacking state of a right of self-defense independent of the “unable or unwilling” argument.  One consequence would also be that such an armed attack triggers the host state’s right of self-defense in the absence of consent.

    Under that vision, the attacking state’s and the host state’s rights of self-defense are the primary focus.

    “Unwilling or unable” fig leafs appear to be political justifications and not rules of law.

    But what do I know.

    As to distinguishing the Israeli and US settings – I truly believe that the US had consent of Yemen and of Pakistan for these actions which Israel did not have of Tunisia and so the self-defense armed attack trigger was lit for Tunisia but not for Yemen and Pakistan.  There is evidence in Wikileaks for that vision about Yemen and the initial reactions of Pakistan also seemed to support it.

    It seems to me that the “double/triple” public posturing games that states have to play as political entities makes it terribly difficult to state an “unable or unwilling” rule in the absence of more perfect knowledge.  I like the self-defense attacking state/self-defense host state vs self-defense attacking state/acquiescence of the host state vision as more clearly speaking to the explicit or tacit consent by the host state or lack thereof as the heart of the matter.

    Best,
    Ben

  17. Response…
    With respect to the self-defemse paradigm, “unwilling or unable” is not a limitation on the inherent right of self-defense under UN 51 to target DPAA persons, although it has some traction regarding misuse by an enemy of neutral territory and justification for targetings of the enemy military targets in neutral territory under the laws of neutrality as such for targeting DPH and CCF persons.  UN 51 will, in any event, override treaties re: neutrality b/c of UN art. 103. 
    Again, with respect to the law of war paradigm let us recall that al Qaeda and the Taliban have long misused Pakistani territory.  Moreover, the de facto theater of war has spread to parts of Pakistan and had spread to bin Laden’s command and control compound.  He was a DPAA, DPH, and a CCF person — targetable under both paradigms.

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