By Dan Gettinger
On July 25th, I listened in on a teleconference hosted by the American Bar Association titled “Targeting Killing and Drones.” In this post I summarize some of the key points made by the speakers. The full transcript will be published by the ABA next week.
In attendance were:
Moderator: Ronald J. Bettauer Policy Officer, ABA Section of International Law; Visiting Scholar, George Washington University Law School; former Deputy Legal Adviser, U.S. Department of State
Amos N. Guiora, Professor and Co-Director, Center For Global Justice, University of Utah, S.J. Quinney College of Law; author of Legitimate Target: A Criteria-Based Approach to Targeted Killing (Oxford University Press)
Kate Martin, Director, Center for National Security Studies; former General Counsel to the National Security Archive, a research library located at George Washington University
Gabor Rona, International Legal Director of Human Rights First, former Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva
Gary Solis, Professor of Law, Georgetown Law School and Washington University Law School; retired Professor of Law, U.S. Military Academy
Drone Strikes Outside of ‘Hot Battlefields’
Gary Solis outlined the differences between jus ad bellum and jus in bello. The former are a set of requirements that permit the commencement of hostilities whereas the latter, jus in bello, are the rules that govern the conduct of combatants. Solis focused on jus ad bellum, raising a myriad of questions in regards to the application of the rules to drones.
Solis: “Are drone strikes in Somalia or Yemen our attacks on those states? Are they in violation of U.S. obligations under the UN charter? Are they a US initiation of an armed conflict with Somalia or Yemen? Does it matter if it was a CIA drone versus a US military drone?”
The problem at the base of these questions is the absence of an identifiable battlefield outside Afghanistan. The government has made no apparent attempts to place geographical limits on the area in which targeting may occur. Solis believed that individuals may certainly be lawfully targeted within Afghanistan but targeting individuals in other countries is dependent on the permission of the host government in place. If individuals flee from Afghanistan into a neighboring country, such as Pakistan, Solis was unsure if the permission of the neighboring state is still required. What constitutes ‘hot pursuit,’ and can an individual be pursued 10 or 50 or 100 miles into the neighboring country? [For more on this question, see an article in the Washington Post from earlier this year about continuing CIA drone strikes in Pakistan.]
Solis: “In my opinion, given the parameters described, there may well be a lawful right to target fleeing individuals just over the border of the neighboring state. But that [opinion] is by no means universally shared.”
For Kate Martin, the Director at the Center for National Security Studies, one aspect of the question of geography is clear: “this administration does not take the position that there is no geographical boundary to the war against al Qaeda.” Whereas the previous administration toyed with the idea of world-wide war on terror, the Obama administration has rejected that rhetoric. While the administration has not released any details on what it considers the appropriate geographical limits to be, Martin said that it “acknowledges that there are geographical limits to where that armed conflict is and, accordingly, to where to use armed force as part of that armed conflict.”
Solis: “I know I’m giving you a number of questions and not providing many answers, but that is because we don’t have firm answers…What we have is arguments and that is what we are going to proceed through.”
With Whom are We at War?
Rona: “In an armed conflict, you can legitimately kill members of opposing armed forces as well as civilians while they are directly participating in hostilities. Outside of armed conflict, of course, those concepts don’t really track well.”
Gabor Rona began his speech by arguing that we often neglect to ask an essential question that the debates on drone strikes: Are the drone strikes occurring within a context of an armed conflict? The common debate on drones skips this step and goes straight to trying to determine who may be targeted by drones. This is a mistake, argued Rona, because questions of targeting and definitions of combatants rest on the determination of whether a state of armed conflict exists. This is one of the questions that, as Professor Solis noted, the laws of war do not answer conclusively. Rona suggested that jurisprudence, particularly from the Yugoslav tribunal, helped define some parameters for determining armed conflict.
According to Rona, the generally accepted definition of armed conflict with non-state actors rests on the fulfillment of two requirements: there has to be “some minimum intensity of hostilities” and the existence of “identifiable parties.” There has to be a threshold to the hostilities between what can be classified as law enforcement and what is termed to be armed conflict. In this case, again, Rona cited the findings of the Yugoslav tribunal and the International Committee of the Red Cross as providing some guidance.
Rona: “[T]errorism is a method of doing things; it’s not an end in itself, and it’s a method that can be employed in armed or outside of armed conflict. And so the question of whether terrorism is or isn’t war really is not answerable. What is answerable is whether or not terrorism, understood as the targeting of civilians, is or isn’t lawful. The answer is no, but it could occur in armed conflict or outside of armed conflict.”
Meeting the criteria for what qualifies as a legitimate armed conflict is particularly important when considering the current nebulous status of the war against al-Qaeda. While some might argue that the United States is at war with al-Qaeda because of the 2001 Congressional Authorization of Military Force, Rona rejected this view because
Rona: “[L]aws do not armed conflict make. The fact on the ground determines whether or not there is an armed conflict. So a declaration of war, even though we don’t do that anymore, would not trigger the law of armed conflict. It would again be the modicum of hostilities and that those hostilities are attributable to identifiable parties.”
“Somebody a lot more clever than I am, and I am forgetting who it was, said, ‘You can have war against proper nouns, but you can’t have wars against common nouns’ because proper nouns like Germany and Japan can surrender and promise not to do it again, but you’ll never get that out of terrorism.”
The second part of determining whether a state of armed conflict is legal is defining the parties involved. The Bush-era term “war on terror” implies both an absence of geographical and of participatory limits. However, the 2001 AUMF that permitted the war against the Taliban and remains the Obama administration’s legal basis for drone strikes in Yemen and Somalia is very vague in how it defines the enemy. Technically, it authorizes the president to pursue only those individuals or organizations responsible for the 9/11 attacks. However, the Obama administration has, in a court filing on the AUMF detention authority in 2009, argued that the list of legitimate enemies extends to “persons who were part of, or substantially supported, Taliban or al-Qaida forces, or associated forces ….” Rona emphasized the need for the narrow identification of particular groups according to the real threats that those groups pose to the United States.
Rona: “The idea of an armed conflict of global reach against an amorphous non-state entity and something called ‘it’s associated forces’ that, once again, the US administration has not defined, comes much too perilously close to the idea of open-ended war without geographic or conceptual boundaries — again, coming back to this flawed concept of a global war on terror.”
The Question of Combatants
Assuming the two conditions of armed conflict have been met and the situation warrants more than a law enforcement response, one still must resolve the question of who can actually be killed legally. There are two basic classifications, combatant and civilian; the law of distinction, one of the “most fundamental principles of the law of war” said Rona, must be used to separate the two. A combatant is a member of the armed forces of the enemy, while a civilian is not. Rona notes that when the conflict is between two states, this identification is easy to make. But when a non-state actor is involved, it becomes less clear.
For example, one might be tempted to say that all “members” of al-Qaeda are targetable. But without any noticeable identifiable indicators such as uniforms or membership cards, how does one know who is a member of al-Qaeda? Some members might be children; others might hold the beliefs of the organization, but are not involved in hostilities. The person who is targetable must be part of the armed forces within the al-Qaeda organization. In the question and answer portion of the conference, Professor Solis argued that there was a geographical element involved in identifying enemy combatants.
Solis: “Terrorists are not combatants, they are enemy fighters, and if they can be identified on the battlefield where there is an ongoing armed conflict, they can be targeted and killed.”
Some members of al-Qaeda are immediately targetable because of their status in the organization. Even though Osama bin Laden was sitting quietly in his house in Abbottabad, he remained legally targetable because of his status as an enemy commander just like, as Solis noted, General Eisenhower was a lawful target during World War Two, even though he never personally fired a gun at an enemy. [For more on the targeted killing of enemy commanders as a justification for targeted strikes, see this 2012 speech by Jeh Johnson, the then chief lawyer at the DOD.]
Amos Guiora: “It’s a terrible power, and the less we’re willing to get into the details of what threat that specific individual poses, then we have a drone policy that is, from my perspective speaking from someone who has been involved in this, is deeply troubling.”
“Signature strikes,” the practice of targeting individuals without knowing their identities, were roundly criticized by the members of the panel during the question and answer period. Professor Solis said it was “probably illegal” and an “abuse of the system of targeting beyond the imagination.” Kate Martin added that “the standard can’t be that the individual poses the threat of a violent act. The standard has to be much higher than that.” Gabor Rona argued that “the criteria that the US has apparently been using for determining who is subject to lethal force are just too loose.”
Rona: “The law of armed conflict does recognize that it’s not only members of the armed forces of the enemy that participate in armed conflict, but that there can also be some civilians participating in armed conflict.”
When a state is engaged in armed conflict with a non-state entity, the determination of who is a civilian is as difficult as knowing the combatants. A civilian who plants an improvised explosive device or spies on the opposing force is recognized as targetable because that person is, according to the ICRC, “directly participating in hostilities.” However, the civilian who gives up and goes home can no longer be considered a target.
Rona: “This creates an anomaly in which individuals who are civilians and participating in hostilities can always target the armed forces of the state, because those forces are always targetable. But they themselves, as civilians, can only be targeted while they are directly participating in hostilities.”
Again, the laws of armed conflict do not offer full answer to this question either. Rona noted that the ICRC coined the term “continuous combat function” to describe those civilians who had a direct and sustained participation in hostilities and therefore were qualified as regular combatants instead of as passersby to the conflict. The civilian is targetable for the duration of time that that individual participates in hostilities, whether that means for the moments surrounding the planting of a roadside bomb or for longer periods of “continuous combat.”
Responsibility to Capture Instead of Kill?
One concern regarding the use of drones is that they forgo the opportunity to capture enemy combatants. Gabor Rona and Gary Solis explained that in situations of armed conflict, there is no responsibility in the laws of war to capture an enemy combatant instead of killing him.
Rona: “The majority view on that issue is that there is no requirement to detain. If a person is a member of the enemy armed forces, if the person is a civilian directly participating in hostilities, there is no obligation under the laws of war to try and detain that person rather than to use lethal force.”
During the Q&A, Medea Benjamin, the founder of Code Pink, asked whether, supposing “there was just a suspicion that someone was engaged in violent activities,” there is any legal responsibility to capture that individual? In response, Gabor Rona acknowledged the difficulty of determining the level of evidence required in order to act. Amos Guiora argued that “there is a merit and value in capturing somebody, obviously from an intelligence gathering perspective.” While there is no inherent responsibility to capture an enemy combatant, in order to kill that person there are criterion of action or potential threat posed by that person that must be met.
Guiora: “But if you’re really serious about understanding the significance of targeted killing, going back to Gary and my experiences … you have to have really strict definitions of evidence that somebody really poses a threat.”
Domestic Law and Targeted Killings
Markin: “[T]he United States government, at the moment, relies upon the 2001 authorization of the use of force, as it’s constitutional legal authority under US domestic law for all of the ongoing drone operations.”
Kate Markin covered the subject of the domestic legal justifications for targeted killing under the AUMF and the interpretations by the Obama administration of that law. Markin cited two recent documents as being helpful to understand the position of the administration towards targeted killings: the national security speech by the President in May and the policy guidelines fact sheet for the use of force outside of hot battlefields. At the beginning of her speech, Markin made two points of clarification: that the use of drones against al-Qaeda and associated forces by the United States is predicated on the existence of a legal state of war and that domestic law incorporate international law.
The use of the drones by the U.S. is not based on some separate legal rationale of self-defense, but rather, on the constitutional authority—the AUMF—that permitted the invasion of Afghanistan in pursuit of the people, organizations or nations responsible for committing or aiding the operation of the 9/11 attacks. The AUMF remains the legal foundation for the ongoing drone strikes not only against al-Qaeda and the Taliban, but also against “associated forces.” Markin emphasized that this is not a blank check and, while the administration is not specific, they have said that “an associate force has to be 1) an organized armed group and 2) it has to enter the fight alongside al-Qaeda in hostilities against the United States and its coalition partners.”
Markin: “We, for one, while we believe that the AUMF did authorize under the Constitution, the use of force in Afghanistan and also in the spillover conflict in Pakistan, that it is stretching it to say that Congress intended that the President can decide on his own on the use of military force against a group, AQAP that didn’t exist in 2001, in a country, Yemen, that is not next door to Afghanistan.”
In regards to the question of whether the U.S. is entitled to use lethal force against American citizens, Markin said that the government’s justifications “are even more confused than they have been on other issues.” [For more on this question, see a recently released report by Brookings entitled “Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad.”]