03 Aug The Last Word (for now) on Targeted Killings: Rona Responds to 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.”