Targeted Killings Symposium: John C. Dehn on Richard Meyer and Col. Maxwell on Status-Based Targeting

[John C. Dehn is a nonresident senior fellow in West Point’s Center for the Rule of Law. The views presented here are his personal views.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully diverse thoughts on an intellectually rich topic.  My only regret is that circumstances prevented me from contributing to it despite an invitation to do so.

Colonel Maxwell’s chapter in Targeted Killings is an excellent contribution to the ongoing debate regarding the targetable status of individuals in non-international armed conflict (NIAC).  In my view, Rich Meyer’s critique identifies an appropriate weakness in it, but addresses it in the wrong way.

Both Maxwell and Meyer fail to address the import of the international legal threshold for NIAC.  Maxwell notes the shift from a law enforcement/human rights to law of war legal framework in the U.S. response to terrorism.  But he does so without addressing the (ambiguous in both substance and application) international law that attempts to delineate the circumstances under which terrorist violence might become “hostilities” in a NIAC.  Meyer senses this problem, classifies it as a “jus ad bellum” issue, but then characterizes it as a “collective political decision” rather than a legal issue (effectively extracting most of the jus from the jus ad bellum).  The decision to attack an extraterritorial non-state organized armed group is probably a political question under the framework of the U.S. Constitution, but is not so from the perspective of international humanitarian and human rights law.

Nevertheless, Meyer’s point regarding Maxwell’s lack of clarity in assigning responsibility to determine the existence of a NIAC is well taken.  However, I read Maxwell to assume the existence of a NIAC so that he may get on with the work of addressing ambiguity in the law regarding individuals with targetable status. Additionally, Meyer’s assertion about the relationship of the jus ad bellum and jus in bello to the individual culpability of soldiers seems to be more argument than law.  It is relatively clear, I think, that not every “collective political decision” to wage war against an identifiable armed group immunizes any military subordinate who attacks the group if it should (objectively) have been considered legally protected from attack.

I think the real problem with Maxwell’s proposal is his “military function” criterion. Maxwell would include those whose activities establish a continuous combat, combat support, or combat service support function for a non-state armed group as targetable member of that group.  That it is probably too broad.  For example, the U.S. employs many Department of Defense civilian employees and civilian contractors to perform various logistics and combat support functions in the theater of operations, from arming and maintaining drones to feeding and housing troops to protecting civilian government officials.  Although it once performed these functions (almost exclusively) with members of the armed forces, to my knowledge it considers most if not all of these individuals to be civilians (some of which may take a direct part in hostilities), not belligerents. Under Colonel Maxwell’s proposal, most if not all could be targeted as belligerents if supporting non-state organized armed group in similar fashion.  Thus, it is not only terrorists who have blurred the distinction between belligerent, protected civilian and targetable civilian (meaning one taking a direct part in hostilities).