The US’s Retreat from IHL (or, the Triumph of Ryan Goodman)
In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the “near certainty” standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL’s principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force “outside the United States and areas of active hostilities” represent a complete retreat from IHL in general. As I discuss in my article on signature strikes, the US has always insisted that its drone strikes are governed by IHL, not by IHRL, because – to quote John Brennan — “[a]s a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces.” Yet almost none of the requirements articulated in the fact sheet the US released regarding Obama’s speech have any basis whatsoever in IHL. Here are those requirements:
 A target that poses a continuing, imminent threat to U.S. persons;
 Near certainty that the terrorist target is present;
 Near certainty that non-combatants will not be injured or killed;
 An assessment that capture is not feasible at the time of the operation;
 An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
 An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.
Requirement 1 could perhaps be reconciled with IHL’s concept of membership in an organized armed group, which requires the individual to assume a continuous combat function therein, as long as we assume that anyone who qualifies as a member poses “a continuing, imminent threat” of violence. But it cannot be reconciled with the idea of direct participation in hostilities; almost by definition, a civilian who DPHs does not pose a “continuing, imminent threat.” Moreover, nothing in IHL requires a fighter in a non-international armed conflict to pose a threat to the United States; has Obama now abjured the right of the US to act on behalf of other states fighting terrorism, at least outside of the “active zone of hostilities”?
Requirement 2 echoes IHL’s presumption of civilian status and requirement (in Art. 57(2) of AP I) that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” But Requirement 2 (“near certainty that the terrorist target is present”) seems to articulate a standard that is singificantly more restrictive than IHL, even accepting that the quantum of evidence IHL requires to rebut the presumption of civilian status is unsettled. Israel and New Zealand, for example, believe that IHL prohibits an attack only if there is “substantial doubt” or “significant doubt,” respectively, about the status of the target. Even the ICRC appears to adopt a less restrictive standard, insisting that an attacker must presume civilian status even in cases of “slight doubt.” (Although perhaps “near certainty” and “slight doubt” are two sides of the same coin.)
Requirement 3 was addressed in my previous post. Suffice it to say that nothing in IHL requires an attacker to be “near certain” that no civilian will be killed in an attack that satisfies the principle of distinction.
Requirement 4 echoes Ryan Goodman’s argument in his excellent article “The Power to Kill or Capture Enemy Combatants.” I do not want to rehash whether his understanding of the duty to capture is lex ferenda or lex lata; you can find my view here. Suffice it to say that few if any militaries would accept that there is a general duty in IHL to capture instead of kill legitimate targets.
Requirement 5 is not particularly relevant to IHL; indeed, it blurs the distinction between the jus ad bellum and the jus in bello, an issue I will return to below.
Requirement 6 is no less problematic from an IHL standpoint than Requirement 4. Reasonable alternatives may be relevant to a proportionality analysis, but it is black-letter IHL that lethal force may be used against a lawful target anywhere at any time.
As I said, the new requirements for the use of lethal force represent a complete retreat from IHL. The question is, why? My best guess is that the requirements were very much written with an eye to the near-to-middle future, in which the US will be increasingly unable to maintain the fiction that it is involved in a single armed conflict “with al-Qaida, the Taliban, and associated forces.” Differently put, the US seems to be anticipating a time in which it will no longer be able to argue that the US may use lethal force outside of areas of active hostilities on the ground of either self-defense or IHL, but will be able to invoke only self-defense.
I think that’s a mistake, for two reasons. First, although it may make sense to abandon IHL with regard to the US’s supposed armed conflict with “with al-Qaida, the Taliban, and associated forces,” it is very likely that the US will eventually find itself involved in other non-international armed conflicts in which lawful targets are located outside of “areas of active hostilities.” So I do not understand why the US would want to embrace an aspatial view of IHL and targeting standards vastly more restrictive than those embraced by IHL, even if — it’s unclear from the fact sheet — its new understanding of the use of lethal force applies only to the current conflict.
Second, although I don’t imagine that the US much cares, the jus ad bellum-like targeting standards announced in the fact sheet do not necessarily satisfy the limitations on lethal force imposed by international human rights law. As I have pointed out ad nauseum on the blog (see here for an example), whether an extraterritorial use of force is legitimate under the jus ad bellum says nothing about whether the targeted killing legitimately deprives the target of his or her right to life. It is possible, of course, that the substantive requirements of the jus ad bellum and IHRL are the same, in which case eliding the distinction between the two has no practical effect. But it is also possible, perhaps even likely, that necessity and proportionality mean different things under the jus ad bellum than they do under IHRL — in which case a legitimate act of self-defense could still violate IHRL. Indeed, although it is a subject for another post, I think that the US’s deliberate push to relax jus ad bellum imminence beyond the traditional Caroline test — what Mike Lewis has nicely called “elongated imminence” — indicates that the US view of when lethal force may be used under the jus ad bellum is significantly broader than the consensus view of when lethal force may be used under IHRL. As a result, I fail to see why the US would want to essentially give up IHL as providing an independent justification for the use of lethal force against individuals who, despite being located “outside the United States and areas of active hostilities,” are clearly participating in a non-international armed conflict.
It’s all very strange. I would have loved to be the proverbial fly on the wall when the White House was explaining the fact sheet’s requirements to the military…