[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.
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)
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): (more…)