06 Sep Targeted Killing Away from the Battlefield: A Response to Ken
I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war. Here are the relevant paragraphs (my emphasis):
[G]oing to the geographic definition of war as a legal concept. This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law. And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime). I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it. Certainly the State Department, under Harold Koh, no less, does not even entertain it. And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation. (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)
Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself. The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are. The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven. Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.
To begin with, this is a caricature of Melzer’s position. He does not claim that combatants can be lawfully targeted only when they are on the battlefield; his discussion of the extraterritorial reach of non-international armed conflict on pages 257-61 of his book, for example, is replete with situations in which states lawfully targeted insurgents outside of the “theatre of conflict.” On the contrary, he simply insists — correctly — that the extraterritorial targeting of an individual is governed by the laws of war only if (1) the target does, in fact, qualify as a combatant in the armed conflict in question, or (2) the target is a civilian who is directly participating in that armed conflict.
The distinction is important, because it leads to a conclusion that Ken’s argument ignores: although the laws of war permit the extraterritorial targeting of “participants” in an IAC or an NIAC, not every terrorist qualifies under the laws of war as a “participant” in the IAC in Afghanistan or the NIAC in Pakistan. Al-Aulaqi is a perfect example. He is not a “member of the armed forces of a Party to the the conflict” in Afghanistan, as that category is defined in IHL, nor is he a member of an “organized armed group” that is involved in the NIAC in Pakistan — there are many al-Qaedas, not just one. The laws of war govern his targeted killing, therefore, only if it can be said that he is directly participating in the hostilities in Afghanistan and Pakistan. And that is a very difficult argument to make, given that his terrorist activities appear to have been focused exclusively on Yemen, the US, the UK, and Canada. To be sure, there is no question that Al-Aulaqi approves of al-Qaeda’s activities in Afghanistan and Pakistan. It is even possible that his inflammatory speeches incite young Muslims to join al-Qaeda in those countries. But such incitement does not qualify as direct participation in hostilities (DPH); it is at best indirect participation. And even if it did qualify as DPH under a more relaxed (and less acceptable) definition, Al-Aulaqi would be targetable only while giving his speeches; he could not killed at other times, because DPH is an action, not a status.
We see, then, the real motivation of conservatives like Ken: not to reaffirm the “traditional” understanding of the laws of war, but to dilute traditional notions of combatancy and DPH so that targeted killings with no connection whatsoever to the conflicts in Afghanistan and Pakistan will be governed by IHL instead of by international human-rights law or — worse — American constitutional law. And they accuse progressives of misunderstanding the laws of war!