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.