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

by Jens Iverson

[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.

http://opiniojuris.org/2013/11/06/drone-reports-can-members-armed-groups-targeted/

6 Responses

  1. Jens:  For what it’s worth, several us had a rich exchange on these very questions here last year, in the comments to this post, which I commend to OJ readers:
    http://opiniojuris.org/2012/08/03/the-last-word-for-now-on-targeted-killings-rona-responds-to-lewis/
    One other minor thing: I don’t read the Emmerson report as “taking the same approach” as the ICRC on the question of whether membership can only be proven by evidence of a CCF, or whether other types of evidence (e.g., swearing bayat) can suffice — he merely describes the ICRC view, contrasts it with Michael Schmitt’s view, and does not take a position on which, if either, is an accurate description of customary law.
     
     
     

  2. Professor Iverson,
    Thanks for the nuanced analysis of whether members of organized armed groups who are not taking a DPH in a NIAC can be targeted.
    The fact that the ICRC’s CIHL and DPH studies do not fully support AI and HRW’s positions detracts from their credibility as much as the overbroad and overly simplistic governmental assertions to the contrary detract from its credibility.
    As you say, it is far better to acknowledge ambiguity than to ignore it, let alone to interpret it in favor of one’s argument.

  3. Quite clearly, DPH conduct allows targeting under the laws of war (as DPAA woould under the law of self-defense).  Whether CCF status allows targeting under the laws of war depends on the reach of dynamic customary int’l law, based on general patterns of practice and general patterns of opinio juris. We may be experiencing the creation of a new customary CCF norm.  It would be helpful if there were more current studies of relevant practice and opinio juris on this matter.
    In any event, there is not “admirable” and “stong” legal argument in the reports with respect to proper tests under human rights law (e.g., “effective control” and “arbitrary” killing) and there is inadequate attention to the law of self-defense.

  4. Regarding proper tests under human rights law and the AI Report, see http://jurist.org/forum/2013/10/jordan-paust-drones-justification.php
    HRW emphasizes the wrong human rights test as well (in its report on pages 83, 86-87) and pays no attention to the law of self-defense and permissible targeting or capture of persons who are DPAA.

  5. Thanks for all of the comments.

    Marty, that is a great discussion, worth a read (or re-read). Thanks for the link, and your comments there.
    With regards to Emmerson’s report (alternate link here, the UN websites are odd today for me: http://msnbcmedia.msn.com/i/msnbc/sections/news/UN_Drones_Report.pdf ) reading behind the lines, I think he agrees with the ICRC. It’s true that statements of law like “If the criterion of continuous combat function is not met, then an individual who is otherwise affiliated with an armed group is to be regarded as having protected civilian status and may be targeted with deadly force only if and for so long as he or she is directly participating in hostilities” are sandwiched between statements talking about the ICRC’s views. Contrast his relatively detailed exposition of the ICRC’s views with his terse noting that some “United States military lawyers argue” differently. In any case, my main desire was to point readers to those reports while keeping this piece to-the-point.
    Regarding the question of whether continuous combat function is the sole determinant of membership or whether (for example) bay’ah might qualify – it’s important to keep in mind that this is only important where it can be operationalized. I think the functional, fact-specific approach is correct, and it has to make sense from the perspective of an objective, lawful person making a targeting decision. I think there’s a lot of work to be done with regards to operationalization, both from the military regulation and criminal law perspectives. For a signature strike, whether the target involves individuals who have sworn allegiance will not be known.
    A common sense rule of thumb might be whether a reasonable commander could reasonably expect that those targeted could a) be presently ordered into combat (not mobilized, then ordered) or b) could issue such orders. If swearing allegiance doesn’t fulfil this requirement after an objective assessment of the available facts, then it would be insufficient. The ICRC’s approach is to resolve the imbalance as best as possible. A US Army cook could be ordered into combat at any time, but a contractor couldn’t. This should find a parallel in NIAC targeting. But that’s just my gloss on operationalizing the ICRC’s guidance, which itself is a mix of law and aspiration.
    From a criminal law perspective, doubt will be operating on two different levels – IHL says that while making a targeting decision, doubt must be resolved in favor of assuming the civilian nature of potential target, but a later criminal law assesment of that decision would require most uncertainties of the finder of fact to be resolved in favor of the accused (based on in dubio pro reo and proof beyond reasonable doubt for every element of the charges). This played out a bit in Gotovina, but how it would work for something like signature strikes is, to me, unclear. What standard of doubt is appropriate for those making targeting decisions? The rhetoric is pretty absolute (“any doubt”) but that seems unrealistic, and IHL is best approached as the realistic regulation of armed conflict. This IHL standard is less developed than the subsequent criminal law assessment, I think.
    BattleJAG, thanks for your comments, especially catching my emphasis on the US government’s statements and claims, which also could use clarification and often lack credibility. I really appreciate the experience, expertise and efforts of the JAG corps. I’ve often said that they’ve done as much or more than any other legal community to check the sometimes illegal and unwise policies and orders of the US executive.
    Jordan, your further points are interesting. We may disagree as to the overall merits of the AI and HRW Drone reports. I think they are excellent, put out by groups performing an invaluable function. (My main policy concern here is the stability of Pakistan, actually, which I think outweighs in most instances concerns about a decent interval in Afghanistan.) I’m just gently suggesting that they clarify their views on this point, perhaps helping to crystalize law and practice along the lines of the ICRC’s Interpretive Guidance.
    Thanks again for reading and commenting.

  6. I just noticed that Opinio Juris stylesheet overwhelmed my emphasis in the quoted material.  Here are the bits I was trying to emphasize:
     
    AI:
    Membership in an armed group alone is not a sufficient basis to directly target an individual.
     
    HRW:
    Thus members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone.
     
    Customary International Humanitarian Law:
     practice is not clear as to whether members of armed opposition groups are civilians
    this rule appears to create an imbalance between such groups and governmental armed forces.
     
    Interpretive Guidance:
    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.
    Members of organized armed groups belonging to a non-State party to the conflict cease to be civilians
    members of an organized armed group belonging to a party to the conflict, IHL deprives them of protection against direct attack
     
    I hope that’s helpful.

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