[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]
If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?
These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.
The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”
When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.
A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.
When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.
This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.
The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.
And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.
But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.