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Home Armed Conflict Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC

Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC

Published on May 9, 2014        Author: 

The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.

Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.

Military necessity as a permissive principle

It is true that the regulation of an activity by a rule of international law does not necessarily imply that the same rule also authorizes that activity. IHL adopts such a position of neutrality on a number of questions. For example, the fact that IHL applies to the activities of organized armed groups in a NIAC does not necessarily imply that it permits or prohibits the existence of such groups. Lawrence and Dapo are therefore perfectly correct to point out that just because a particular activity is regulated by the rules of IHL does not imply that IHL endorses or authorizes that activity. However, to conclude that IHL does not authorize any of the activities it regulates takes the argument too far. It would mean that the sole effect of IHL is to impose constraints on the conduct of hostilities. As Professor Charles Garraway has aptly put it, IHL is based on a ‘Faustian pact’ between the principle of humanity and the principle military necessity, with the former serving as a constraining and the latter as an enabling factor. According to the US Military Tribunal in the Hostages Case, the principle of military necessity authorizes belligerents to engage in hostilities in the following manner:

Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger.

This enabling function is reflected in the corpus of IHL in two ways. First, its vocabulary is not limited to prohibitions, but incorporates belligerent rights (Article 1 of the Hague Regulations), powers (law of belligerent occupation) and privileges (combatant immunity). Second, an authorization to conduct hostilities is implied in the very texture of IHL. Take the principle of distinction. If IHL does not confer or at least recognize an authority to use lethal force against enemy combatants, then what is the purpose of distinguishing between combatants and civilians in the first place? If killing certain categories of individuals is not authorized, should not every human being enjoy protection from lethal targeting, rendering the principle of distinction redundant? In fact, the principle of distinction has a dual purpose and effect: to determine who are civilians and as such protected from military operations and to determine who are combatants and as such subject to direct attack. Thus, Rule 1 of the ICRC Customary IHL Study, which applies both in international and non-international armed conflicts, proclaims that ‘attacks may only be directed against combatants’. Plainly, this rule does not impose a legal obligation to actually attack combatants, but instead recognizes that States enjoy a legal privilege or liberty (in the Hohfeldian sense) to do so. It is worth recalling here that the ICRC Guidance on Direct Participation in Hostilities classifies members of organized armed groups as fighters, not as civilians. It makes no sense for IHL to distinguish between fighters and civilians in a NIAC if it did not confer the authority on States to use lethal force against the former.

Emasculating IHL

Accepting that IHL does not authorize the use of lethal force and detention would render the entire debate about the relationship between IHL and international human rights law (IHRL) superfluous. If IHL were to consist solely of constraints and fail to provide legal authorizations, as Lawrence and Dapo submit, then no conflict would ever arise between these two branches of international law: States would simply have to follow the more restrictive rules. The point may be illustrated with reference to the advisory opinion of the ICJ in the Nuclear Weapons case, where the Court held that the ‘test of what is an arbitrary deprivation of life…falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’.

Status based targeting, that is killing a human being on the basis of his status as a combatant, is not permitted under IHRL. Since the Lotus approach suggests that IHL does not authorize status based targeting, but merely fails to prohibit it, it follows that States will have to comply with the more restrictive IHRL standard of absolute necessity in targeting. Consequently, what constitutes an arbitrary deprivation of life in the context of an armed conflict would have to be determined with reference to IHRL alone, as IHL would have nothing to add to the matter. This renders the lex specialis principle irrelevant. Needless to say, it is also puts the Lotus approach at loggerheads with the ICJ. Not only that, it would effectively emasculate IHL by fully subjecting it to the more constraining standards of IHRL. The armed forces could no longer operate on the basis of the conduct of hostilities paradigm, but only in a law enforcement paradigm.

The limited equality of belligerents

To support their analysis, Lawrence and Dapo argue that the absence of a legal basis in IHL for lethal targeting and detention in NIAC is compelled by the principle of the equal application of IHL. For if IHL were to authorize lethal targeting and detention in NIAC, the principle of equality demands that this authorization apply both to States and non-State actors. This stretches the principle of equal application too far. As Lawrence and Dapo rightly observe, the States negotiating the Geneva Conventions and Additional Protocol II resisted creating the impression that they were recognizing any belligerent rights for non-State actors or conferring a belligerent status onto them. In fact, common Article 3 to the Geneva Conventions explicitly states that its application ‘shall not affect the legal status of the Parties to the conflict.’ As the ICRC Commentary explains, the inclusion of this clause was essential for the adoption of common Article 3.

What the language, structure and negotiating history of common Article 3 and Additional Protocol II thus demonstrate is that States were not prepared to accord the same belligerent status and rights to non-State actors which they themselves enjoyed. This can mean only one of two things for the principle of equal application. First, if the principle demands that belligerents enjoy the same status and rights, and common Article 3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and Additional Protocol II gave up their status and rights as States and assumed the same status and rights as non-State actors.

Such an understanding of the principle of equal application not only contradicts common sense, but it also contradicts the plain language of common Article 3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, common Article 3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC. This compels us to adopt a second, narrower reading of the principle of equality: namely, that common Article 3 and Additional Protocol II provide for equality of protection, but not equality of belligerent status and rights.

Consequently, and contrary to what Lawrence and Dapo suggest, there is nothing inconsistent about accepting that IHL confers an authority on States to use lethal force against members of organized armed groups in a NIAC without conferring a corresponding authority on those groups.

Problems in practice

Lawrence and Dapo suggest that denying the existence of a legal basis for lethal targeting and detention in IHL would leave no gap in the law or present any problems in practice, because any void can be filled by domestic law. Not quite. As a matter of international law, any domestic authorization to conduct hostilities would have to comply with the international obligations of the State in question, including any IHRL obligations (cf. Article 27, Vienna Convention on the Law of Treaties). This means that States cannot rely on their domestic law (or arguably the law of other States) to authorize status based targeting and detention. Contrary to what has been suggested, this does create problems in counter-insurgency operations conducted abroad. Not so much because there may be a ‘perverse incentive to kill rather than to detain’, as Lawrence and Dapo put it. Regardless of its perversity or otherwise, it makes no operational sense to kill every single insurgent. Rather, denying the legality of status based targeting and detention renders it virtually impossible to take fighters off the battlefield and to gather intelligence effectively.

With that in mind, either the vast majority of States and the ICRC got it wrong and there is no authority to conduct status based targeting and detention operations in NIAC (and possibly IAC) or the view that IHL provides no legal authority for status based operations does not stand up to scrutiny.

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13 Responses

  1. Heiko Recktenwald

    I would not say that IHL authorises anything. Wars just happen and it is a question of the law of the state whether to kill people is legal or not. IHL is a limitation and nothing else. The principle of proportionality in the narrow and the wide sense or whatever. Der Krieg wird gehegt und nicht gepflegt. But I also asked myself whether the war in Afghanistan was a NIAC at all. Summum ius, summa iniuria…

  2. Heiko Recktenwald

    Well, maybe we could define NIAC as an IAC on invitation, Odesssa etc not to mention Nicaragua.. Then we have the law of IAC in NIAC situations anyway. This seems to be most realistic. But whether this invitation legalises anything would still be a question of the law of the state. There is no third way. NIAC and the law of the state or IAC

  3. Jordan

    The war against the Taliban in Afghanistan has been an IAC, especially because of the internationalization of the belligerency that had been taking place between the Northern Alliance and the Taliban prior to Oct. 7, 2001 (which belligerency was itself an IAC).
    The quotation from the U.S. Military Tribunal during the Subsequent Nuremberg Proceedings is on point regarding the law of war’s provision of a competence as well as a limitation — whether or not most law of war norms are merely regulatory.

  4. Heiko Recktenwald

    Dear Jordan, doesnt competence mean that they just do it?

    Very best, H.

  5. Thanks for your comments. I appreciate that the classification of the conflict in Afghanistan is not straightforward, although I do believe that the view that it is a NIAC is the better one. However, this does not distract from the underlying question whether IHL authorizes, rather than just regulates or even just tolerates, status based operations. As I suggested in my post, in my view the reference to domestic law is unhelpful, as the conduct of military operations hardly falls within the reserved domain of domestic juridiction of States. Consequently, domestic law cannot serve as a sufficient legal basis for military operations in armed conflict, at least not in the eyes of international law.

  6. Jordan

    Heiko: I view a “competence” under the laws of war (or international law more generally) as one recognized by that law (expressly or by implication) — not that it is merely “practice” (i.e., they “just do it”).
    With respect to the IAC in Afghanistan, it is important for the government of every state that had troops participating in the armed conflict to recognize that the internationalized conflict was an IAC so that their soldiers can have “combatant” status and “combatant immunity” for lawful acts of war during an IAC. Otherwise, the government would be mistakenly or recklessly leaving its soldiers in harms way, withoout combatant immunity.
    Furtehr, on Oct. 7, 2001, the Taliban was the de jure government of Afghanistan according to at least 3 states and was at the very least a “belligerent” engaged in an armed conflict of an international character with the Northern Alliance (meeting the 5 customary criteria for “belligerent” status, as well as the Northern Alliance), etc.

  7. Oliver Daum Oliver Daum

    Dear Auriel,

    thanks for your insightful post.

    However, I do disagree with your assumption that military necessity constitutes a permissive principle in order to enable/authorize/permit the conduct of warfare.

    First, I am not certain about your implied understanding of a State being „enabled“, „authorized“ or “permitted”. Does it mean that a belligerent State has a subjective right to kill foreign troops with the enemy State therefore being burdened with a corresponding duty? Even if “enable/authorize/permit” is just meant as a synonym for lawfulness, what would be the legal significance then? How about a belligerent’s legal possibilities to interfere with a neutral State’s trade in this regard? Since the relation between the belligerent State on the one hand and the neutral State on the other is subject to the laws of neutrality and not to the IHL, military necessity, which is part of IHL, cannot be relied upon in order to conduct acts of naval warfare against neutral States.

    Second, concerning the essence of military necessity, you accurately quoted the IMT in the Hostage Case. However, the IMT further elaborated on the perception of military necessity as it also stated that:
    “The destruction of [non-military] property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”
    Against this background, the Hostage Case gives the impression that military necessity is not to be construed as a permissive principle. Instead military necessity is a legal standard supplementing – as we call it today – humanitarian considerations to assess the lawfulness of a particular act of war under IHL.

    Third, you stated that „domestic law cannot serve as a sufficient legal basis for military operations in armed conflict“. May domestic law serve a State as a „legal basis“ (the accuracy of this term might be challenged on the assignment that a legal basis provides for subjective rights with a corresponding duty), let’s say, to kill its nationals during times of peace? In may view this issue is prominent since IHRL is perceived as prohibitive law, setting limits to the conduct of States in times of peace and in times of armed conflict. Just in case you affirm the reference to domestic law as a „legal basis“ to kill during times of peace, what would be the whipping difference to the state of armed conflict then?

    Best wishes

  8. Heiko Recktenwald

    Jordan, there is international law, the law of Afghanistan, what Karsai did say, and the law of the UK or whatever homecountry of the soldier.

    My favourite case, I dont have many, is the Kundus case. German penal law. We did not fight a war according to the official language but something else and wow, the General prosecutor of Germany said: Yes, there is war.

    IMHO combat immunity is a part of the law of states and not of international law. We do not only fight wars, but we do it ourselves. We shoot. And the rest is just souveraign equality of states as said by Koroma in Germany .v. Italy. Best!

  9. Heiko Recktenwald

    Btw, there is a very nice decision on “combat immunity” and souvereign equality of states according to Vattel of the old German Reichsgericht called “Legion des Patriotes”. French “little green men” sotosay, RGSt 16, 165-171, http://heikorecktenwald.de/RGSt_16_165-171.pdf

    The other decision of the Reichsgericht on “Krieg” in the official collection is on “lawfare”, “Nachrichten ueber den Krieg”, RGSt 50, 305-306, http://heikorecktenwald.de/RGSt_50_305-306.pdf

  10. Dear Oliver,

    Thanks for your comment, it raises excellent questions. Let my reply briefly. First, as I have suggested in the post, IHL confers on States a legal privilege, freedom or liberty in the Hohfeldian sense, rather than simply a right. In other words, IHL permits States to carry out military operations (subject to the constraints imposed by other rules of IHL) and other States have a no-right to demand that the first State refrain from carrying out military operations. Recognizing that IHL does not simply leave the matter unregulated, but confers legal liberties, is absolutely critical, as it means that there is in fact a norm conflict between IHL and IHRL as far as status-based targeting and detention is concerned (contrary to what the ECtHR assumes in Al-Skeini and Al-Jedda).

    Second, you are of course right, I have only quoted those passages of the Hostages case which were directly relevant to the point I was making. I fully accept that the principle of military necessity has a limiting function, as explained by the Tribunal in the passage you quote. What this means, however, is that the principle serves two purposes: enabling the use of military force, but also limiting its scope. You can find another example of this duality in Art 35 API (and its predecessors), which states that the ‘right of the Parties to the conflict to choose methods or means of warfare is not unlimited’. Here we have in a single provision a reference to the ‘right’ of belligerents to conduct operations (rather than just an absence of prohibition, as Lawrence and Dapo have claimed) as well as a limitation of the right.

    Third, the point I was trying to make when I wrote that ‘domestic law cannot serve as a sufficient legal basis for military operations in armed conflict’ was to highlight that the gap created by denying that IHL contained authorizations cannot be filled by domestic law, as domestic law would have to comply with IHRL obligations (which do not permit status-based targeting and detention). Outside of armed conflict, domestic law may well permit the use of lethal force against a State’s own nationals within the confines of IHLR (absolute necessity etc).
    On Heiko’s point about the Kunduz case, notice how the critical part of the LG Bonn’s analysis is based on the conclusion that German public bodies are bound, as a matter of German administrative law, to protect the rights of third parties they derive from public international law, in this case IHL. Essentially, what this means is that German domestic law defers, lock, stock and barrel, to the provisions of IHL in determining whether an individual injured by military operations has a cause of action. If the operation was carried out in breach of IHL, a cause of action may lie. If the operation was carried out in conformity with IHL, it seems that a cause of action does not arise. Doesn’t German law thereby accept that Germany is free (again, in the Hohfeldian sense of a liberty) to conduct status-based operations and, moreover, defer to that freedom?

    Best,
    Aurel

  11. Jordan

    as an aside, readers might be interested in the (erroneous) instruction of a judge in a U.S. military commission at GTMO in the Al Nashiri case and the issue whether the U.S. can be in any sort of armed conflict with al Qaeda. See David Frakt’s comment over at opiniojuris.org.

  12. Oliver Daum Oliver Daum

    Dear Aurel,

    thank you for your elaborated reply which leads me to another aspect.

    I agree with you that States engaged in an IAC do not have subjective rights to conduct acts of warfare but a legal concept, which is close to the ‘privilege’ in the Hohfeldian sense. And this ‘warfare privilege’, if I understood you correctly, is based on military necessity. Thus, military necessity serves as a sort of legitimizing source for acts of warfare, which were unlawful in times of peace.

    In the context of an international armed conflict, the preventive function of the ius contra bellum to foreclose the outbreak of an IAC failed to operate effectively. Since these legal effects of the ius contra bellum between the two or more belligerent States may be seen as suspended during the course of an IAC, why are belligerent States in need of a ‘legitimizing source’ in order to kill or bomb the enemy?
    Honestly, I am not sure whether this thought is worth to be responded to or whether the answer to this issue is just too simple…

    Best,
    Oliver

  13. Heiko Recktenwald

    Well, for German penal law, that may be stupid, a soldier is technically a murderer. See the opinion of the German federal prosecutor in the Kundus case.