03 Oct Two Questions from the al-Awlaki Killing
There appears to be some agreement that continuous combat functionaries (CCF) that belong to an armed group that is involved in an armed conflict may be targeted “anywhere, anytime”. I agree with this position and even had Kevin cite p. 206 of Gary Solis’ book as affirmation of that position.
The question is what is the legal justification for “anytime, anywhere” targeting of such individuals? My own answer to that is posted on Lawfare and argued in more detail here is that this should be based upon applying neutrality law principles to transnational armed conflicts. I recognize that such principles currently only apply to IAC’s, but I believe that applying the concepts of the reciprocal obligations between belligerents and neutrals found in traditional IAC’s to transnational armed conflicts makes more sense than applying the Tadic or threshold of violence factors to such conflicts.
Those that agree with the idea that CCF’s are targetable “anytime, anywhere” are either taking an incredibly expansive view of self-defense, a view in which the “imminence” requirement essentially vanishes, or they are applying something other than the Tadic factors to determine IHL’s scope in NIAC’s. Because applying such threshold of violence factors would most certainly not permit targeting “anytime, anywhere” but rather only in locations where the requisite level of violence has been met, and something that arguably is not currently present in Yemen.
The two questions then are 1) are CCF’s of an armed group involved in an armed conflict targetable “anytime, anywhere”? 2) What is the legal framework that supports this position?
Answering 1) in the affirmative does NOT mean that you agree that the al-Awlaki operation was legal. It is still possible to argue that he did not have CCF status or that his group was not involved in an armed conflict. But those are very different from claiming that his location was the basis for finding the operation to be illegal.
Michael, Thanks for the post. I’ve read this and your other post with interest, but I admit I fail to see the problem. A state does NOT always need armed conflict or IHL in order to kill people lawfully. Let’s assume for the moment that the non-US crowd is right (as it is!) and that there is no such thing as a global NIAC with Al-Qaeda or a transnational armed conflict or what have you – a NIAC would require protracted armed violence in some defined place, and the US is only engaged in such violence in Afghanistan. If that is correct (and again, let’s assume that it is), then AA was not a lawful target in any legally cognizable armed conflict, and IHL was simply inapplicable to his killing. What was applicable was (1) the jus ad bellum, and (2) human rights law (let’s assume away the whole extraterritoriality issue as well). Self-defense is only pertinent to (1) – but it actually was not pertinent here, as Yemen gave its consent to the US to conduct the military operation that killed AA. The US simply did not need to invoke self-defense; it would only have had to do so… Read more »
Michael, I fundamentally concur, as I argued in the PENNumbra debate with Kevin. I would add that, historically at least, neutrality applied not only to IAC. This is clear from the broad scope of the Neutrality Acts of the U.S. and was articulated in Supreme Court case law — even back when the U.S. was not a superpower and the Court was concerned with getting international law right. See The Three Friends, 166 U.S. 1, 52 (1897) (finding principle of neutrality requires states to prevent their territory from being used for “any participation in a public, private or civil war”—in modern terms, any participation in international (IAC), non-international (NIAC) or internal (NIAC) armed conflict). In fact, I think neutrality law provided the basis for the expedition against Poncho Villa in Mexico. Ashley Deeks recounts similar conduct by other states both pre- and post- U.N. Charter in her VJIL article. Many simply ignore this state practice as a violation of the U.N. Charter and/or their (or their view of the ICJ’s) preferred view of customary international law. Ignoring or summarily dismissing this state practice does not adequately deal with it. Marko’s position is the standard response, one that requires strict compliance with both a preferred jus ad… Read more »
Marko, Thanks for the comment. I believe we part ways at two points. First of all, if human rights law applies then you may only use lethal force when the target threatens imminent harm to others and then only after the opportunity to surrender is made immediately prior to the use of lethal force (e.g. your hostage situation). While I agree that Awlaki posed a threat, I think it is a real stretch to claim that he posed an imminent threat. I don’t believe that human rights law would allow the killing of an escaped serial killer as he slept in his home or drove in his car alone (no hostage with him). Consent doesn’t matter, under human rights law you violate the right to life if you employ measures that are unnecessarily likely to lead to the death of the target absent a showing of imminent harm to others (see McCann v. UK). So I am not sure how human rights law allows the killing of al-Awlaki without some showing of imminence that I think is quite strained. The second point of departure is based upon my view that human rights law does (or should) have a problem with a… Read more »
Why should it matter if the non-state actor flouts all (?) of IHL’s rules? Don’t rules apply regardless? And who decides who has flouted enough rules and when? Is it only the US or other States may make this determination, too?
Because AQ does not follow some of the most basic rules of IHL (regarding civilian targeting and distinguishing combatants from civilians) IHL denies members of AQ combatant status and the combatants’ privilege. As a result, when members of AQ participate in hostilities IHL views this as forfeiting their immunity either temporarily (DPH) or permanently (CCF) depending upon their conduct. That’s why it matters if AQ follows and enforces the laws of war.
To your question of “who decides?” I think that in a close case (in which leadership of an armed group makes some attempt to enforce the laws of war) it is likely that IHL would regard members of that group as combatants.
I bring it up because IHL clearly disfavors groups that don’t follow its rules in the ways I just mentioned. It would be anamolous, then, to read IHL in a way that favors the very same group. That is the effect of insisting that the scope of IHL in transnational armed conflicts is determined by threshold of violence factors, because it provides effective sanctuary for groups like AQ.
Michael, Thanks for the reply – and this is indeed where we disagree. On your first point, I don’t think it’s right to say that human rights law requires imminence of harm to third parties in all circumstances in order for a taking of life by a state to be lawful. In your serial killer hypo, just imagine a chase scene from a movie. If the suspected serial killer is trying to evade arrest, and if attempts to capture him fail despite best efforts, the police may use deadly force to stop him even if at the time he poses no danger whatsoever to others, i.e. is merely trying to escape and is being very good at it (Art. 2(2)(b) ECHR is an explicit textual authority for this, and there are a number of cases applying it). The McCann scenario is different, I agree. In both scenarios, however, the main question is whether the state has exhausted all other options. Similarly, the degree of the threat also matters; the state may use deadly force to stop the escape of a suspected serial killer, but it can’t use deadly force to stop a suspected (non-violent) thief. The state may… Read more »
John,
Just to briefly add in response to your comment that I actually agree with the last point that you make regarding a possible nexus to an existign NIAC. If Al-Awlaki could somehow be connected to the violence in Afghanistan, then IHL might have applied to him – but it didn’t. And even if it did, the US would still have had to assert a jus ad bellum justification, i.e. self-defense, or procure the consent of the territorial state. If, say, a Taliban fighter from Afghanistan crossed over into Pakistan, he would be a lawful target under the jus in bello, but the US would either need Pakistan’s permission or make a valid self-defense claim in order to justify any use of force on Pakistani soil under the jus ad bellum.
Response… First, please note that we cannot be at war with al Qaeda, thus Marko’s inquiry into self-defense and human rights law is more relevant. But the fact that a foreign state consents to the use of self-defense targetings on its soil does not dissipate the right of the U.S. under UN art. 51 to engage in self-defense targetings of those who are direct participants in armed attacks (DPAA). Its the self-defense paradigm that controls here, as noted in my article in FSU’s J. of Transnat’l L. & Pol’y 2010, particularly with respect to Yemen. Moreover, under human rights law, he had no relevant human right unless he was in the “effective control” of the U.S., which was not the case. And if he had a relevant human right under the circ., his right to life was merely a freedom from an “arbitrary” deprivation of life. U.S. nationals are not Europeans, bound by the restrictive European Convention on H.R. — which, as addressed in my article — does not set the test. McCann is not the test for the U.S. and non-Europeans. Neutrality? Al Qaeda et al breached Yemen’s neutrality when they used Yemen as a base of operations for the Christmas… Read more »
Response…
p.s. “readers” interested why the self-defense paradigm is the proper focus in this kind of circ. and why U.S. nationality of the targeted person who is a DPAA does not provide immunity might check, especially, pp. 249-58, 261-69 & n.60 [re: U.S. nationality], at http://ssrn.com/abstract=1520717
John, I completely agree with your aspatial view of IHL, but I would take issue with your invocation of neutrality law. It is critical not to conflate municipal neutrality laws with the customary international law of neutrality; the former could, and often did, go well beyond the latter. Indeed, scholars have long recognized that the U.S. Neutrality Acts were a classic example of municipal laws that did not reflect custom, precisely because they imposed neutral duties in insurgencies that had not been formally recognized as belligerencies. That was Oppenheim’s view; that was Tucker’s view. Tucker, for example, specifically cited the 1937 Neutrality Act as an example of municipal law that applied the law of neutrality to “situations other than war in the sense of international law.” Indeed, even the US itself has acknowledged that the imposition of neutral duties in unrecognized insurgencies did not reflect international law; an 1895 opinion by the Attorney General explained the Neutrality Acts as follows (my emphasis): While called neutrality laws, because their main purpose is to carry out the obligations imposed upon the United States while occupying a position of neutrality toward belligerents, our laws were intended also to prevent offenses against friendly powers… Read more »
John, Also, with respect, The Three Friends actually supports the idea that the international law of neutrality applies only to IAC (including recognized belligerencies), because the Supreme Court specifically acknowledged that the U.S. Neutrality Act applied in situations (insurgencies) not governed by the international law of neutrality. What follows what you quoted is absolutely critical (my emphasis): Neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil war, and in impartiality of conduct towards both parties, but the maintenance unbroken of peaceful relations between two powers when the domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency. And, as mere matter of municipal administration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention. Hence, as Mr. Attorney General Hoar pointed out, 13 Opinions 177-178, though the principal object of the act was “to secure the performance of the duty of the United States, under the law of nations, as a neutral nation in… Read more »
Marko, in some respects we are continuing an old conversation that we have had more than once (though not recently) regarding whether other principles of international law might support the infringement of sovereignty necessary to carry out an act of self-defense against a non-state actor in another state (such as “host” or territorial state responsibility coupled with counter-measures or necessity). I am aware of your published views on the secondary versus primary obligations in this context. The way neutrality principles operated would seem to support the resort to secondary principles in support of a right to use force against a non-state actor engaged in armed conflict within another state. Regarding your main point on the territorial armed conflict nexus requirement, I want to ask you to respond to something I asked Kevin in the PENNumbra debate. As part of the armed conflict in Afghanistan, could the Taliban permissibly attack the Manas Air Base in Kyrgyzstan or Central Command headquarters in Florida (from the perspective of IHL, not domestic criminal law)? To take that example further…if so, and if the Taliban elements exercising command and control of those attacks happened to be in a quiet neighborhood in Karachi, could the… Read more »
I should also note that “acts of war” as used in the case we were discussing and in general refers not to all acts of violence but only to those forming a part of an ongoing war/belligerency/armed conflict. This is the reason for my consistent position that there must be a operational link to an armed conflict, not merely an ideological one.
John,
Can you please cite a neutrality scholar who believes that the US Neutrality Acts applied to insurgencies as a matter of international law, as opposed to municipal law? All of the ones I found agreed that any extension of neutrality law to “NIAC” (internal armed conflicts other than recognized belligerencies) was solely a matter of municipal law, because neutral duties applied only in IAC.
It is also important to reiterate that “war” in the neutrality sense — and in the sense used by The Three Friends — was not coterminous with the modern-day concept of “armed conflict,” because it specifically excluded insurgencies. So I take issue with your binary “war or belligerency/insurgency.” That is a category error: the correct binary for the purpose of neutrality law is “war/belligerency or insurgency.” The law of neutrality was addressed solely to conflicts between states and to insurgencies that had ripened into belligerencies. With regard to other conflicts, the idea of a “neutral duty” was not possible, because there was nothing to be neutral toward. (Which is precisely why, within limits, states were free to support the government against an insurgent group.)
Kevin, I did not say that U.S. Neutrality Acts applied to insurgencies “as a matter of international law.” I agreed with you that they did not, and argued that The Three Friends extended them to insurgencies because of the political rather than legal nature by which such labels were often extended. States would often call a conflict an insurgency that by its intensity, scale, etc. should have been classified a belligerency. This is precisely what The Three Friends strongly implies about the conflict at issue in that case. Our true point of disagreement lies in your second paragraph. I, for one, do not think contemporary “armed conflict” legal definitions include everything classed as an “insurgency” in the days of old. I do think they encompass some of what might have been called insurgency then but would now be classified as armed conflict. My argument was that contemporary understandings of “armed conflict” should be equated with the idea of war or belligerency for the application of neutrality principles because these are the cases to which the laws of war now apply — just as it in the 19th Century, the laws of war applied only to wars and belligerencies, not… Read more »
John,
Thanks for the clarification. We agree, then, regarding the first paragraph. With regard to the second, my question concerns the effect of applying the law of neutrality to all NIACs: does that mean the organized armed groups engaged in such conflicts are entitled to combatant’s privilege and POW status? That is an unavoidable conclusion, it seems to me, given the basic premise of neturality law: namely, that neutral duties apply equally to both parties to a conflict, because both parties are recognized subjects of international law.
That, of course, is the crux of my disagreement with Michael. If neutral duties apply to transnational NIACs, terrorists groups are entitled to be treated no differently than the regular armed forces of a state — including combatant’s privilege and POW status. To be sure, individual terrorists could lose that status through their actions. The failure to comply with the laws of war would not, though, deprive the organized armed group as a whole of the benefits of recognition as lawful belligerents — just as the failure of some U.S. soldiers to comply with the laws of war does not mean U.S. armed forces as a whole lose those benefits.
Your thoughts?
By the way, I would be interested to know what state practice supports the idea that the law of neutrality has evolved to apply to NIACs — particularly transnational ones. Given that the overwhelming majority of states reject the idea that the US conflict with al-Qaida is a global NIAC, viewing it as subject to IHRL, I doubt that such practice exists.
Kevin, It seems fairly obvious that classification of armed violence as armed conflict makes both parties to the conflict subjects of international law. How else would the laws of war apply to regulate the conduct of the non-state party and the members of its armed forces? This development was, I think, the beginning of the end of state sovereignty. Historically, though, POW status and combatant immunity were only extended to foot-soldiers by policy, not law. I think there are many good reasons that contemporary IHL should be more egalitarian in this area. The price of states having belligerent powers should be the extension of traditional IHL protections to non-state parties. However, state status and sovereignty concerns still influence developments in this area of the law. The states that make international law, including IHL, are not about to grant effective state status to non-state organized armed groups. The Grotian distinction between “public” and “private” war still persists. (The former based on public — meaning state — authority and the latter including all violence engaged in without such authority.) Regarding your second comment, see the Deeks article. Internal armed conflict becomes transnational, at a minimum, when non-state forces use the territory… Read more »
IHL does not apply, but Human Rights Law. It is a case of extrajudicial killing of a civilian by a state on the territory of another state. Or a case of murder. Why should the U.S. government have the last word on this, that it is IHL?
By the way, if IHL would apply, would that mean that al-Awlaki could bomb the CIA headquarters, could legally kill CIA drone-operators or Obama wherever they are in the world?
John,
In response to your question: (1) if the Taliban did in fact act a US base in Kyrgyzstan or in Florida, and if there was a clear organizational nexus between those attacks and the conflict in Afghanistan, then I’d have no problem in saying that the attacks were spill-over from the Afghan NIAC. The problem with Al-Awlaki is factual – such a nexus does not really exist. He had nothing to do with the Afghan conflict. (2) As for the US responding to such an attack by going into Pakistan, again, even if it is granted that this would be a part of the Afghan NIAC, the US would STILL have to justify its violation of Pakistani sovereignty under the jus ad bellum, whether under self-defense (which would be perfecrtly reasonable under the hypo that you give) or by procuring consent.
“In December 1917, when the British Army occupied Palestine, the Arabs could not independently invoke a right of self-determination in general international law even though they had long been numerically preponderant in Palestine, owning most of the land, and even reaching high political office under the Turks. This is because at that time self-determination was, at best, a political principle. It did not exist as an independent legal right, which all peoples could invoke. However, the Arabs were represented at the Paris Peace Conference. Emir Feisal was given a right of audience by the Great Powers and in his speech before them he did assert a claim to Palestine.18 Moreover, President Woodrow Wilson invoked the principle of self-determination in a speech he gave to a joint session of the two Houses of Congress five weeks after his Fourteen Points speech when he said that self-determination was not a mere phrase, but ‘an imperative principle of action which statesman will henceforth ignore at their peril’.19 He added: ‘… peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited of the… Read more »
[…] Historically, it is clear that even US nationals are legitimate targets if they are active as part of an enemy force during open hostilities. Central to present application would be the assertion that Al-Awlaki had definitely transitioned from a propaganda role to that of a full-fledged combatant. The administration termed Al-Awlaki a “proven threat”. The legal details and technicalities of “continuing combat functionaries” are explored i… […]