The Last Word (for now) on Targeted Killings: Rona Responds to Lewis

The Last Word (for now) on Targeted Killings: Rona Responds to Lewis

[Gabor Rona is the International Legal Director for Human Rights First and he is responding to a post by Michael W. Lewis]

OK, let’s forget about drones for a sec. After all, drones are simply a form of targeting. And targeting in war is a good thing. (Since killing is legal in war under certain circumstances, the alternative to targeted killing is indiscriminate killing, which is a war crime.)

Let’s look at existing US targeting policy. First, it is not at all clear that it is restricted to contexts of armed conflict. Exactly who is the US at war against in Yemen, in Somalia? And even if our various wars do extend to those countries, what exactly is the basis under IHL for killing people who we may label “terrorist,” “insurgent,” or the most popular “militant,” but who may not be members of an enemy armed force or who may not be civilians directly participating in hostilities in that armed conflict? None.

To understand how we got here, remember that the Bush administration thought it necessary to create a previously non-existent category of people in order to DETAIN them outside the protections of the Geneva Conventions. No longer did we have the categories recognized in IHL, combatant and civilian, but instead, we now had “unlawful enemy combatant.” (And to those who cite Quirin, which uses the term, I respond that the case was about PRIVILEGED BELLIGERENTS – members of the German armed forces – whose CONDUCT was in violation of the laws of war. Not about unprivileged belligerents and not about the recognition of a new STATUS.) The Obama administration famously retired the term “unlawful combatant,” replacing it with “unprivileged enemy belligerent,” but is less apt to tout that the definition and consequences of the two designations remain essentially the same.

So what? Well, after the US manufactured a new status and a name, “unlawful enemy combatant,” for the purpose of justifying detention in violation of the Geneva Conventions, the notion began to take hold that if you meet the criteria for detention, you also meet the criteria for extrajudicial killing. After all, what can be wrong with killing an enemy combatant?  Of course, the criteria for killing in the law of armed conflict are much narrower than the criteria for detention.

Mike “find(s) it curious that someone from an organization that has steadfastly maintained that detainees in the NIAC between the US and al Qaeda should be afforded many of the procedural protections associated exclusively with IAC’s (the Geneva Conventions and Additional Protocol I) should now claim that the line between these two types of conflicts is inviolable.” First of all, that’s not an accurate representation of my organization, Human Rights First’s position. We do not claim that the law of IAC is applicable to NIAC by analogy. We claim that the procedural protections of the law of NIAC, namely those of Common Article 3, which is explicitly applicable to NIAC, can only be understood with reference to national law that must comply with applicable human rights law. Second, what Mike suggests here is precisely what I refer to above: the mistaken analogy between detention and targeting.

Now let’s return to drones. You are a political leader. Are you going to commit troops to Yemen and Somalia, where they would be at risk when you can simply kill people by remote control? I think not. What you will do is authorize your commanders to implement existing remote targeting policy, which, by the way, likely violates the law of armed conflict.

Mike is wrong to suggest that I’m ascribing sinister or reckless motives to military commanders. They are simply implementing bad law and policy dictated from above.

None of this takes anything away from the doubtless correct claim that Mike made in the first place and with which I agreed: drones can mean fewer mistakes. But that’s an entirely different issue than the criteria under which a dead person is properly labeled as targetable as distinct from “collateral damage.” And this point, Mike does not address. The US does, however, address it, and does so incorrectly by claiming that any “member” of al Qaida is targetable, and that any military aged male in a kill zone is properly determined to be targetable. And that’s why, former CIA director Michael Hayden was probably correct when he said, “Right now, there isn’t a government on the planet that agrees with our legal rationale for these operations, except for Afghanistan and maybe Israel.”

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General, International Human Rights Law
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Kevin Jon Heller

Gabor,

Great posts, particularly concerning the US’s amazingly overbroad definition of who can be targeted in a NIAC.  I read a newspaper article today that described Anwar al-Awlaki as the “former head of AQAP.”  It’s remarkable how the importance of individuals the US wants to kill grows over time — in just a couple of years al-Awlaki has gone from a propagandist for AQAP to a recruiter for AQAP to an operations planner for AQAP to now the former head of AQAP…

John C. Dehn

Gabor,

I read Quirin as you do.  It was not articulating a battlefield status, the term “unlawful combatants” referred to combatants whose conduct made them subject to punishment for a law of war violation.  

However, I wouldn’t go so far as to say that the Bush era use of that term was a precursor to “membership” targeting.  I am not even sure that membership in a terrorist group is sufficient for targeting in current U.S. practice, as you assert.  As Kevin’s comments suggest, more is typically alleged to be present then simple membership. Would such assertions be necessary if the U.S. considered membership alone to be sufficient?

Gabor Rona
Gabor Rona

John, thanks for your comment. I understand the nexus between Bush era use of “enemy combatant” for detention and present targeting practice is debatable, but the US has explicitly taken the position that membership is sufficient. Brennan said so. He also said that as a matter of policy, the US requires more. That’s why they usually allege more.

Ian Henderson
Ian Henderson

Dear Gabor,
I would be interested in your reason(s) on why membership of al Qaeda (not AQAP or any other group, but AQ itself) is not sufficient for targeting purposes. Is it that you think AQ is not an organised armed group with which the US is engaged in hostilities? Or do you subscribe to the ICRC view that membership of an organised armed group alone is not sufficient, but a person must also have a continuous combat function in that group? Or is there a third reason for your view?
Thanks, Ian

Gabor Rona
Gabor Rona

Dear Ian,

ICRC (in whose legal division I used to work) does not take the position that only those who perform a continuous combat function in an armed group may be targeted. ICRC hews to the generally accepted view that membership in the armed forces of a party to an armed conflict (which may be determined by a person’s CCF) and direct participation in hostilities by a civilian are grounds for targeting. Membership in al Qaeda (whatever that may mean) does not neceessarily mean falling into either of those two categories. Even if al Qaeda is a sufficiently organized entity so that it can be a party to an armed conflict, persons affiliated with it are not ipso facto members of “armed forces” or civilians directly participating in hostilities.

Gabor

Marty Lederman
Marty Lederman

Gabor:  It appears you agree with Ian (and the U.S.) that members of enemy armed groups in a NIAC are legitimate targets.  As Judge Bates put it in his Hamlily decision: The clear implication of Part IV [of the Second Protocol], then, is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population”- i.e.,members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. See ICTY Trial Chamber, Prosecutor v. Galića, Case No. IT-98-29-T, ¶ 47 (Dec. 5, 2003) (“For the purpose of the… Read more »

Gabor Rona
Gabor Rona

Marty, Targeting in a war against Al Qaeda (NIAC) is not like in a war against Germany (IAC). I think on that we agree. But its also not like a war against the guerrilla fighters of FARC or against the armed forces of the parties to armed conflict subject to the jurisdiction of the ICTY, or the military wing of the IRA (all also NIAC). If the presumption of protected civilian status in case of doubt means anything, it means that targeting cannot be justified by the facile use of the term “membership” for persons suspected – or even known – to be affiliated/associated with Al Qaeda. That’s why we have the concepts of “armed forces of a party to the conflict” and of CCF to determine who is or is not a member of the armed forces of a party to the conflict. And all of this assumes the validity of the US position that virtually all of its allies either reject or regard with great suspicion: that the US is, indeed, “at war” with something called Al Qaeda in all the world. So you can either believe that anyone you call a “member” of al Qaeda or of an “associated force” in accordance with some indeterminate standards… Read more »

Marty Lederman
Marty Lederman

Very helpful; thanks, Gabor.  I, too, highly recommend David’s article.  I would be very interested, and grateful, if you would point me to instances in which European nations (or tribunals) have rejected the U.S. views on NIACs — that claim is made quite frequently, but I haven’t seen many citations to authorities, which I’d very much appreciate for future research purposes. In this post you invoke several different things.  One is the baseline question of whether there is an armed conflict between the U.S. and AQ (and if so, whether and how it is geographically limited).  Another is how to identify cobelligenents.  Important questions, to be sure, but I thought that what you were debating with Ian, et al., was whether, assuming there *is* an armed conflict against AQ, members of AQ can lawfully be targeted.  Not anyone merely “affiliated” with AQ, but persons who are members or “part of” AQ. You are obviously correct that in many instances in might be difficult to figure out who is an AQ member.  But not in other cases (e.g., those who have pledged bayat).  And here I’m interested in the latter case.  You had appeared to be arguing that even where someone… Read more »

Kevin Jon Heller

Marty, You and Gabor are not using “membership” in the same way.  Gabor and I (and the ICTY, for that matter) accept the ICRC’s 2009 conclusion that “members” of organized armed groups in NIAC are functionally equivalent to “members” of the armed forces in IAC, making them targetable at any time.  Gabor’s point (and mine) is that membership in an organized armed group is not established in the same way as membership in the armed forces — ie, merely by joining.  Membership in an organized armed group is limited to those who exercise a continuous combat function in the group, with the emphasis being on combat.  “Pledging bayat” is a perfect example of something that does not qualify as assuming a continuous combat function and does not, by itself, make someone a “member” in an organized armed group for targeting purposes.  Recruiting, propagandizing, and financing are other inadequate activities.  Indeed, as indicated by the very concept of direct participation in hostilities, even occasionally fighting on behalf of an organized armed group like al-Qaeda does not make someone a “member” of that group.  The problem with the US approach is thus obvious: it adopts a significantly overbroad definition of who qualifies… Read more »

Michael W. Lewis

Gabor, Thank you for your response. I join you and Marty in recommending David’s latest piece on the differing views between (as you term them) IHL and humanitarians. Although a piece I am working on concludes that the law has a deep interest in thoroughly understanding and accounting for the IHL perspective. I do take issue with your claim that you do not impute sinister or reckless motives to military commanders because they are merely implementing “bad policy”.  One example of such “bad policy” might be signature strikes that I believe you have criticized at other times.  But I believe you would agree that there are signature strikes, even those that utilize the “men of military age” determination for civilian status that might be entirely legal. One example might be a drone strike on a live fire training exercise.  Some of the men (trainees becoming familiar with their weapon) would be armed, while others (instructors assessing proficiency and providing coaching to improve accuracy) would not be.  However all of them would be targetable as CCF’s and such a strike should be deemed entirely legal. Far more problematic would be a strike on an “al Qaeda juniors” soccer match between rival… Read more »

Michael W. Lewis

Kevin,

While there may be commentators that believe that the ICRC went too far in establishing the CCF category or how it has populated that category, state reaction to and state practice in the area has disagreed with the ICRC in the other direction, finding that its definition of CCF was not broad enough.  The only way for the ICRC’s definition to become law is for it to be regarded as custom and that requires state practice and state recognition, not merely commentator approval.    

Ian Henderson
Ian Henderson

First, my thanks to Gabor for responding. Many interesting points, most of which Prof Lederman raised while I slept. I might follow up a point raised by Prof Lederman (Part IV of APII) and responded to by Gabor and Dr Heller.

In a NIAC, I think we can be guided by the reference in art.1(1) of APII to parties to the conflict including the State’s ‘armed forces’ and ‘other organized armed groups’ (OAG). I see no reason to limit the targetability of such members to those who commit acts that functionally amount to taking a direct part in hostilities. If you want to the assessed under the DPH standard, don’t join the armed forces or group. If you join the group as, for example, a legal advisor (a JAG as it where), then art.13(3) APII is not the relevant test. Of course, merely being a legal advisor to a OAG does not make you targetable, just like a Department of State lawyer is not ipso facto targetable.

Kevin Jon Heller

Ian,

So do you disagree with the ICRC’s direct-participation study?  Art. 1(1) of APII mentions organized armed groups, but it says nothing about what constitutes membership in such a group.  The ICRC concluded, on the basis of state practice and opinio juris, that membership in an organized armed group requires an individual to assume a continuous combat function in it; occasionally taking a direct part in hostilities on behalf of that group (to say nothing of actions that do not even qualify as DHPing, such as financing and propagandizing) is not enough.  Do you reject that conclusion?

Kevin Jon Heller

Here, by the way, is the key passage in the ICRC study (pp. 33-34):

As has been shown above, in IHL governing non-international armed conflict, the concept of organized armed group refers to non-State armed forces in a strictly functional sense. For the practical purposes of the principle of distinction, therefore, membership in such groups cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse. Instead, membership must depend on whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict. Consequently, under IHL, the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities (hereafter: “continuous combat function”). Continuous combat function does not imply de jure entitlement to combatant privilege. Rather, it distinguishes members of the organized fighting forces of a non-State party from civilians who directly participate in hostilities on a merely spontaneous, sporadic, or unorganized basis, or who assume exclusively political, administrative or other non-combat functions.

Kevin Jon Heller

I would also add that there are US scholars who accept the ICRC’s understanding of membership in an organized armed group.  Here, for example, is Gary Solis — not exactly a lefty — in his superb Law of Armed Conflict (emphasis mine):

Although the term “continuous combat function” is not found in the Conventions, the phrase, “armed forces” in Geneva Convention common Article 3(1), by clear implication, includes the armed forces of nonstate parties – organized armed groups. The armed forces of the nonstate party (i.e., the organized armed group belonging to the nonstate party to the conflict) “refers exclusively to the armed or military wing of [the] non-state party; its armed forces in a functional sense.” Membership in organized armed groups is not evidenced by uniform or ID card, but by function.

Marty Lederman
Marty Lederman

Kevin:  Your focus in these comments is on how membership in an enemy armed group can be determined.  But what we were discussing earlier in the thread was whether such membership in AQ, if proven, is sufficient to make someone subject to the lawful use of lethal force, assuming AQ is engaged in an armed conflict with the U.S. — a question that turns at least in part on whether AQ has a nonmilitary “wing.”  The ICRC Study asserts that “as with state parties to armed conflicts, non-state parties comprise both fighting forces and supportive segments of the civilian population, such as political and humanitarian wings.”  Although that certainly may be true with respect to some non-state parties, however, it is not invariably true, and the question is whether it’s true as to al Qaeda.  No one on this thread has yet spoken to that question directly.   As for your remarks about what must be proven in order to determine AQ membership, the ICRC proposal has much to commend it — certainly DPH is one important way of proving such membership, perhaps the best way.  The question, though, is whether it’s the only way, or whether there are other… Read more »

Ian Henderson
Ian Henderson

Kevin, Marty has basically provided my answer for me. I think in a NIAC someone is targetable if they are a member of a dissident armed force, and organised armed group, or a civilian taking a direct part in hostilities. Everything after that is commentary. Of course the ICRC make a good point that care must be taken before assigning membership to such a degree that a person is exposed to lawful targeting. It would be completely wrong to target based purely on family ties, etc. But that does not mean that only CCF can provide the requisite degree of certainty. If membership is evidenced by a CCF, all well and good. Seems to me membership could also be evidenced by putting on a distinctive uniform worn by that group, living in a training camp run by that group and commencing combat training delivered by that group. Undergoing combat training is arguably not DPH (so presumably is not CCF), but I know what advice I would be giving to a commander if he or she sought legal review on targeting the training camp — assuming of course a NIAC existed with the organised armed group being a party thereto. I am… Read more »

Kevin Jon Heller

“But what we were discussing earlier in the thread was whether such membership in AQ, if proven, is sufficient to make someone subject to the lawful use of lethal force, assuming AQ is engaged in an armed conflict with the U.S.” That is precisely what I addressed. You cannot prove that someone is a member in al-Qaeda for purposes of IHL (as opposed to US law) without proving that the person in question assumes a CCF in the group. That is the whole point of the ICRC study — to determine what acts qualify as membership for purposes of customary IHL. The claim that the CCF section of the ICRC study is aspirational, by the way, is incorrect.  The study explicitly states that “the 10 recommendations made by the Interpretive Guidance, as well as the accompanying commentary, do not endeavour to change binding rules of customary or treaty IHL, but reflect the ICRC’s institutional position as to how existing IHL should be interpreted.”  It is possible, of course, to argue that the ICRC got custom wrong — as indeed I think it did with Principle IX, which limits the use of lethal force against lawful targets.  But that does not… Read more »

Michael W. Lewis

Kevin,

You say that the burden is on the United States to show that the use of targeted killing is permissible and based upon your first comment in this thread you apparently aren’t even sure if Anwar al-Awlaki met the criteria for CCF.  

When he was killed Awlaki was one of the top 5-7 members of AQAP.  Nasser al Wahishi is generally believed to be the “leader” and Qasim al-Rimi and Fahed al-Quso played greater operational roles, but it was Awlaki and Ibrahim al-Rubaish that were the two principal spiritual leaders of an organization in which spiritual leaders have a great deal of operational power and influence.  And from Abdulmutallab we learned that Awlaki did involve himself in operational instructions.

Targeting him was a war crime in your mind?   

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[…] conversation going on over at Opinio Juris on targeted killings and the use of drones. The posts between Gabor Rona and Michael W. Lewis and […]

Gabor Rona
Gabor Rona

I think Kevin has pretty much said what I would, and rather than repeat him and myself, I’ll stand by his observations.

As to what Europeans think, it is true that the governments aren’t nearly as critical in public as they are in private, but a good example is Germany’s having decided to withhold intel from the US in Afghanistan, specifically due to misgivings about US targeted killing. This was announced, oddly enough, on the eve of Merkell’s (non)State visit to the US. (Technically, she’s not head of State, so it was not a State visit). I recommend Anthony Dworkin’s European Council on Foreign Relations article http://ecfr.eu/content/entry/commentary_obamas_drone_attacks_how_the_eu_should_respond about what Europe’s response should be, in which he notes that European popular and academic opinion is the mirror image of that in the US.

Kevin Jon Heller

Michael,

I didn’t say that killing al-Awlaki was a war crime. (I’m also, it’s worth recalling, one of the few IHL scholars on the left that has publicly asserted the legality of bin Laden’s killing under IHL.)  What I pointed out is that the US government has constantly inflated al-Awlaki’s role in AQAP over time.  Perhaps he was a key operational figure in AQAP at the time of his death; it wouldn’t surprise me.  But the US has long since lost all credibility on the issue.

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