Guest Post: How International Law Could Work in Transnational Non-International Armed Conflicts: Part II of a Two-Part Series

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program and Naz K. Modirzadeh is a Senior Fellow at the HLS-Brookings Project on Law and Security at Harvard Law School, where she leads the Counterterrorism and Humanitarian Engagement initiative.] Part I of the series can be found here. 

Part II: How International Law Could Work in a Transnational NIAC…with Consent

In our previous posting, we used a scenario to explore a set of legal issues relating to transnational non-international armed conflicts (NIACs). The scenario focused on Syria deciding whether or not to attack three high-level Free Syria Army (FSA) rebel commanders on U.S. soil who were present at the invitation and encouragement of the U.S. government (obviating any expectation that the U.S. would provide consent for an attack against them, or that it would arrest and hand them over to the Syrians).

In this posting, we explore the set of legal issues that arise when a foreign State, in this case Iran, does grant Syria permission to target the high-level FSA commanders who are part of Syria’s NIAC.

As mentioned in the previous post, the purpose of setting out this scenario is to tease out how different international law regimes (specifically the law of armed conflict, the law of self-defense, and international human rights law) could interact in transnational NIACs.  What follows does not intend to raise, or answer, all the legal issues that the scenario presents. Nor do we even think the legal analysis below is necessarily “correct” in all places. Instead, we intend to find areas of agreement, provoke disagreement, and welcome any other thoughts and comment amongst Opinio Juris readers.

Let’s begin:

In this scenario, while Syria is in a NIAC with the FSA, the three high-level FSA commanders secretly travel to Iran to meet with members of the Sunni minority community to discuss possible recruitment operations. The Syrian government learns of the meeting and contacts the Iranian government to ask for assistance to kill or capture the FSA commanders. “Are you kidding me?” the Iranian official responds. He continues, “We’re not getting involved in your war… Well, not directly at least. Plus, I’m not going to commit our limited military and law enforcement resources to a low-priority operation that could result in the death of my agents.” The Syrian official responds, “Well, how about you let one of my fighter jets deal with the situation? After all, we are at war and these FSA commanders shouldn’t be immune from attack just because they cross an international border.” The Iranian official agrees.

What could happen next: After a bit more thinking, the Iranian official realizes that he just authorized what amounts to an extrajudicial killing on Iran’s soil. Moreover, he also may have just authorized Syria to kill Iranian civilians if their death is proportionate to the military advantage that Syria gains from the attack. But, he asks himself, “How can I allow these things to happen when Iran is not at war, and therefore the law of armed conflict does not apply on Iran’s soil?” Instead, he thinks about how law enforcement standards should apply, and how law enforcement standards permit the use of lethal force only in very exceptional circumstances. In these situations, a State must apply non-violent means before resorting to the use of force and may only do so when other means remain ineffective or without any promise of achieving the intended result.  If force is used, States must exercise restraint, act in proportion to the seriousness of the offence and the legitimate objective to be achieved; States must also minimize damage and injury, and respect and preserve human life.

The Iranian official thinks, “I should call the Syrian government back.” The Syrian government takes his call, understands Iran’s new concerns, but notes, “Fine. I’m not happy about this, but I respect it. But if those FSA commanders begin to pose an imminent threat while in Iran, I’ll have no choice but to come across the border and kill them.” Iran responds, “I understand that that’s how international law works. But don’t try to use that expanded definition of imminence that the United States uses. I’ll have no patience for that.”

It could be said that one of the end results of this course of action was that the Iranian legal advisor upheld Iran’s human rights obligations and made impossible an attack (on a non-imminent threat to Syria) that would likely have resulted in damage to civilian lives and property. He took this decision despite the assertion that the law of NIAC allowed Syria to target the three FSA commanders in Iran.  He noted, however, that Syria retained a right to attack imminent threats on Iranian soil, especially if Iran was not willing to contain the threat itself. (Obviously, if Syria took on the U.S.’s broad interpretation of imminence then the same issues noted in the previous post would come into play.)

What could also happen next: The Iranian legal advisor, once again, second guesses himself and calls the Syria government back, this time providing his consent.  With this consent, Syria launches an airstrike against the three FSA commanders as they meet with the Iranian Sunnis who want to help with FSA recruitment.  The meeting takes place in a peaceful village bustling with people. In the house where they meet are four children, three women, and one elderly man.  The airstrike demolishes the house and everyone inside is dead, dying, or injured.  The Syrian pilot carrying out the attack, as well his commander, are aware of the civilian presence but they deem it a proportionate strike.  Very soon after the attack, first responders rush to the house to assist the injured and dying. The pilot loops back around and fires a second missile, now killing everyone. He had mistaken these individuals, who are carrying weapons (because everyone in that village carries a weapon), as going to the defense of the FSA commanders.

As a result of the attack, the Iranian government comes under heavy pressure from the public to disclose what happened. Iran eventually discloses that the Syrian government carried out the attack. The Syrian government takes to the media to defend itself and announces, “We killed top commanders of the FSA, who we are currently at war with, in Iran. We regret any reports of potential civilian casualties.”

It could be said that one of the end results of this course of action was that Iran, which was not engaged in a NIAC on its territory, permitted Syria to 1) commit an attack on Iranian soil that 2) was against a target that posed no imminent threat to Syria and 3) resulted in civilian deaths. Through the assertion that the law of NIAC allowed Syria to target the three FSA commanders in Iran, the civilian casualties would be legally permissible—despite the attack appearing to be at odds with Iran’s human rights obligations to the people on its territory.

Concluding Thoughts: What Do These Scenarios Demonstrate?

In our two-part series we have set out two scenarios relating to the international law of transnational NIACs, utilizing a case where the U.S. has publicly voiced its support for a non-state armed group currently engaged in a NIAC against its government. There are, of course, many parts of those scenarios that are not based in reality. One question they raise, however, is whether the United States’ expanded interpretation of “elongated imminence” could set a precedent with dangerous consequences. Another issue they bring to the surface is that political will and military technology permit states to test the outer limits of how international law allows states to use lethal force outside their borders. In some cases, this can lead to explicit breaches of the law. In other cases, it may lead to reinterpretations of the law. And in other instances, it may lead to a use of force that occurs clearly within the law’s intent. Depending on who you ask, the notion that international law permits a NIAC “cloud” to follow a fighter into a peaceful state, may fit into any of these categories.

Whatever the case may be, we think that the issues raised by the scenarios demonstrate that it is important to imagine now, instead of later, where a “testing the limits” approach might take us.  From the perspective of preserving the fabric of international law and order amongst States, as well as limiting civilian harm, the scenarios raise important questions about the costs of expanding the concept of imminence, permitting the law of NIAC to follow a targetable enemy across an international border, and altering the contours of human rights law’s conception of the use of lethal force in a law enforcement context. These costs may have been somewhat overlooked as the public debate has focused on the use of drones and unmanned technology primarily by the United States.

One of the most significant drawbacks might be how a broad concept of imminence could re-order existing notions of sovereignty and reciprocity at the core of international law and interstate relations. In a new world of permissive rules on the use of force (and in a world where technology is able to take advantage of those new rules), is there a legitimate concern that too many threats could be re-framed as imminent; and too many breaches of sovereignty could be re-interpreted as lawful?

If so, what this might look like is a bomb landing on an armed convoy in a sleepy town, killing civilians proportionately, but killing civilians nonetheless.  In this scenario, the “lawful” targets would have posed no imminent threat (as the term was traditionally conceived), but the law of NIAC and a new interpretations of self-defense permitted the attack.  If these two legal regimes (the law of self-defense and NIAC) are left rudderless, is human rights law strong enough to trump them both and correct this problem? And if not, is there reason to seriously consider 1) ensuring that an expanded concept of imminence does not gain international acceptability, 2) States coming together to explicitly prohibit the application of NIAC outside the territory of the State where the NIAC is occurring, and 3) ensuring that States conducting targeting operations on foreign soil abide by relevant human rights obligations regardless of what LOAC otherwise permits?

When the law of armed conflict, or the standards for imminence justifying self defense, are discussed in a vacuum, killing outside of a geographically limited NIAC may appear firmly rooted in international law, or at least not expressly prohibited in international law. But as one alters a few of the key elements of the current debate (removing al Qaeda, removing drones) and reads the situation in the full context of applicable international law, the “traveling FSA fighters” hypothetical may give us cause for reflection and debate on the stakes of blurring not only the concept of internal armed conflict, but with it the rules of who can be killed, where, and for what reasons.