BU Law School’s “Ten Years In” Conference

Congratulations to Professor Robert Sloane and BU Law School for a fine conference yesterday, “Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan.” The conference was co-sponsored by the ASIL Lieber Society and the Naval War College. Update: Peter Margulies contributed a terrific summary of the panel sessions, posted here at Lawfare.

The first panel addressed the future of COIN, and it included Professor Andrew Bacevich — not a lawyer, of course, and instead speaking as a well-known strategist, and lending an important interdisciplinary voice.  He offered a blistering critique of COIN (and pretty much every other strategic option as well, including counterterrorism via drones, I should add).  I was part of the second panel, on targeted killing and drones.  Michael Schmitt of the Naval War College offered a vigorous defense of drones as being essentially like any other weapon system, and on this occasion, at least, it was interesting to see how much agreement there was between him and Human Rights First’s Gabor Rona.

For my part, I gave a shortened and simplified version of this Hoover Institution article on the evolution of the debate over whether there is a “legal geography of war.”  I extended it a bit to cover the latest twist in the debate, noted by Charlie Savage in his New York Times coverage.  This is the internal debate between State and Defense lawyers over whether there is a legal notion of a “hot battlefield,” outside of which not even members of “associated forces,” such as Al Qaeda in the Arabian Peninsula, that are belligerent with respect to the United States, can be targeted on account of status alone, or whether outside of the hot battlefield, such as Yemen, an independent self defense analysis must be made of each target.  This self-defense analysis shifts the question from “status” to “threat” and becomes more or less a question of “imminence” of the threat posed by that individual at that time.  Harold Koh at State (accepting Savage’s reporting on the internal debate) has taken the threat imminence view, while Jeh Johnson at Defense has taken the (more accepted among military lawyers) status view.  To judge by John Brennan’s Harvard speech a couple of weeks ago, the position of the administration at this point is to accept DOD’s view of the law, while taking DOS’s view as a matter of current policy.

The argument from Legal Adviser Koh is striking because it moves the self-defense discussion in a different direction from what was said in earlier statements — not contradicting the earlier position, but deploying it in a different direction with different implications.  Assuming the accuracy of the press accounts of the debate, it seems that Koh would accept that there is a “legal geography of war” for at least some purposes.  Most human rights advocates would say that the implication of this defining legal geography is that it says where the law of armed conflict applies and where human rights law applies. (This leaves aside the further assertion of the human rights advocates that human rights law can be implied into armed conflict in ways that, from my viewpoint, look like ad hoc trumps, but that’s for another discussion.)

However, the United States does not accept the extraterritorial application of the canonical human rights treaties with respect to its own conduct and those of its agents outside of the territorial United States, so from the US point of view, that distinction is legally neither here nor there.  In order to give the geographical distinction content, Koh’s argument says not that human rights law applies with respect to the US, but instead that the requirements of self-defense independently require an imminence of threat analysis even within an armed conflict that includes AQAP as an associated force.  The ordinary foot soldiers of an AQAP who are engaged in fighting with other factions in Yemen, but are not themselves targeting the US, would not be counted as targetable threats even though part of an associated force in belligerency with the US.

Of course, I have seen no internal memos, so I don’t know how this is being framed as a legal matter; I’m offering my best guess.  One possibilty, I suppose, is that although these foot soldiers are in some sense part of AQAP, outside of a defined geographical zone of hostilities, they are not sufficiently “part of” the group with respect to being a threat to the United States to warrant being targeted for status alone.  A threat is needed, and without it, “necessity” in both a jus ad bellum and jus in bello sense is missing.  (That situation might change if the jus ad bellum changed — if the US, for example, openly aligned itself with a faction in Yemen to win the internal civil war as such.)  Without the predicate of necessity, reached through threat and imminence, the US has no self-defense ground to use force, even though an armed conflict that reaches to the group of which the footsoldiers are in some sense a part is indeed underway — and even though leaders of that group, who are engaged directly against the US, are being targeted.  This kind of rationale reaches to certain legal-geographic constraints without having to reach to extra-territorial application of human rights law to US conduct abroad — though the results under this self-defense-necessity rationale are different from what human rights law might say.

I have no idea if this is remotely close to the rationale being considered at State. If it is, however, I can’t say I find it persuasive.  Broadly speaking, I am open to the US developing “state practice” and articulated legal rationales that adapt legal regimes to transnational counterterrorism. That includes the development of state practice in the conduct of self-defense operations using force that are outside of “armed conflict” in its strict legal meaning.  I have sometimes referred to this as developing state practice with regard to “intelligence-driven uses of force” that do not fall under conventional armed conflict — state practice and articulated legal rationales governing (colloquially) extraterritorial “covert action,” even if it is not in fact very covert.  So I am not opposed to innovation in legal rationales in this sphere reached through articulated state practice.  My difficulty here is that once we have accepted the premise that this is an armed conflict — the non-international armed conflict, as the US sees it, against Al Qaeda and associated forces — the long-standing rules on status targeting govern.  One can talk about further elaborations based around “direct participation in hostilities” and related concepts as “continuous combat function” in the ways that the ICRC argues in its interpretive guidance, but those interpretations are not law and the US has not accepted them as such.

So one is talking about policy here, rather than law, which is to say, what Brennan said — Defense’s view as a matter of the existing law, Koh’s view as a matter of existing policy.  Again, I am not opposed to the elaboration of state practice and articulations of legal-policy that try and adapt to transnational counterterrorism, but I don’t think this is the right direction to go.  Given that one is talking about an armed conflict underway, and what are taken as associated forces, then the introduction of a geographic constraint in law seems to me a mistake, if only because the legal touchstone in the law of war is not geography, but the conduct of hostilities.  And once one is within an armed conflict, then necessity shifts from being what it would be under self-defense simpliciter, and becomes aligned in jus ad bellum with winning, and in jus in bello with the ordinary strictures of military advantage.