Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.
One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.
Identifying the Legal Framework
The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate. Read the rest of this entry…