The Drone Reports: Can Members of Armed Groups Be Targeted?

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.]

Amnesty International and Human Rights Watch have recently published reports (AI, HRW) regarding drone strikes.  They are admirable.  They further the debate on the legality of drone strikes.  (This debate continues on Opinio Juris and elsewhere by Deborah Pearlstein, Ryan Goodman, and Kevin Jon Heller amongst others.)  Each report provides unique reporting and strong legal arguments on an important issue.  There is at least one subject, however, where they, at a minimum, overstate the clarity of the law—namely, the status of members of organized armed groups who are not directly participating in hostilities in a non-international armed conflict (NIAC).

AI and HRW effectively state that members of an organized armed group (party to the NIAC) who are not presently directly participating in hostilities are protected from direct attack.  Both reports rely strongly on the ICRC’s landmark volume Customary International Humanitarian Law.  This volume does not fully support them on this issue.

AI states:

Speeches by US officials suggest that the Administration believes that it can lawfully target people based merely on their membership in armed groups, rather than on the basis of their conduct or direct participation in hostilities. Membership in an armed group alone is not a sufficient basis to directly target an individual. (pp. 45-46, emphasis added)

HRW states:

US statements and actions indicate that US forces are applying an overly broad definition of “combatant” in targeted attacks, for example by designating persons as lawful targets based on their merely being members, rather than having military operational roles, in the armed group. Individuals who accompany or support an organized armed group, but whose activities are unrelated to military operations, are not lawful military targets under the laws of war. Thus members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone. (p. 86, emphasis added)

In contrast, Customary International Humanitarian Law states in the commentary to Rule 5 (Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians): 

While State armed forces are not considered civilians, practice is not clear as to whether members of armed opposition groups are civilians subject to Rule 6 on loss of protection from attack in case of direct participation or whether members of such groups are liable to attack as such, independently of the operation of Rule 6. Although the military manual of Colombia defines the term civilians as “those who do not participate directly in military hostilities (internal conflict, international conflict)”,116 most manuals define civilians negatively with respect to combatants and armed forces and are silent on the status of members of armed opposition groups. (p. 19, emphasis added)

Customary International Humanitarian Law states in the commentary to Rule 6 (Civilians are protected against attack unless and for such time as they take a direct part in hostilities.):

To the extent that members of armed opposition groups can be considered civilians (see commentary to Rule 5), this rule appears to create an imbalance between such groups and governmental armed forces. Application of this rule would imply that an attack on members of armed opposition groups is only lawful for “such time as they take a direct part in hostilities” while an attack on members of governmental armed forces would be lawful at any time. Such imbalance would not exist if members of armed opposition groups were, due to their membership, either considered to be continuously taking a direct part in hostilities or not considered to be civilians. (p. 21, emphasis added)

In short, according to Customary International Humanitarian Law, practice is not clear in support of a rule that would protect members of organized armed groups that are not at that time taking a direct part in hostilities.  If members would be protected, this would create an imbalance.  Of course, Customary International Humanitarian Law is not the last word on the issue.  The ICRC attempted to resolve this possible imbalance in 2009 with new guidance.

The ICRC’s 2009 Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law (Interpretive Guidance) provides a clearer contradiction to AI and HRW’s claims.  For the Interpretive Guidance, one cannot be a member in an organized armed group party to a non-international armed conflict without losing one’s protection against direct attack.  The Interpretive Guidance states:

[T]he 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 requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conflict. Thus, individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function. An individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.  […]

Individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities, are not members of that group within the meaning of IHL. Instead, they remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces.  (pp. 33-34, emphasis added)  […]

Members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members by virtue of their continuous combat function.  […]

[W]here individuals go beyond spontaneous, sporadic, or unorganized direct participation in hostilities and become members of an organized armed group belonging to a party to the conflict, IHL deprives them of protection against direct attack for as long as they remain members of that group.  (pp. 71-72, emphasis added)

So while the Interpretive Guidance would generally agree with HRW’s statement that “[i]ndividuals who accompany or support an organized armed group, but whose activities are unrelated to military operations, are not lawful military targets under the laws of war[,]” it would differ with the other characterizations of the law on this matter.

For the ICRC, members can be targeted.  But to be a member one has to have a continuous combat function.

Under the Interpretive Guidance, membership does not depend on current direct participation in hostilities, but rather whether one’s continuous function in the group involves the direct participation in hostilities (that is, a continuous combat function.)  Even if one has never directly participated in hostilities, they may  still be targeted, if one’s function involves (potential) direct participation.  That is the nuance AI and HRW lack, or disagree with.  (This mirrors the lack of nuance in some US Administration statements such as Harold Koh’s comment that “individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law” without clarifying what it means to be a member of an armed group.)

The Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (paras. 69-72) and the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (paras. 68-70) take largely the same approach as the ICRC, while noting dissent, highlighting ambiguity as appropriate.

Of course, AI and HRW can have legitimate disagreements with the ICRC.  Others do so openly, in the opposite direction, arguing for a wider targeting regime than the ICRC would permit.  But it would be helpful if AI and HRW would explain their case more clearly on this point.  If they feel their language can be reconciled with the ICRC’s, they should do so.  They have done a magnificent job reporting on the issue and publicizing their reports.  They have an important role to play in explaining the law and facts to reporters and policy makers.  But they should do their best to clarify the law, not cloud it. Where ambiguity exists it is better to acknowledge it, not ignore it.  One might expect they would grab hold of the Interpretive Guidance with both hands and promote it on its own terms, given its comparatively restrictive interpretation on targeting.  In any case, this issue remains an important one for IHL lawyers, worthy of further attention.