Over on Just Security, Ryan Goodman has an excellent post entitled Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community). In sum, Ryan argues that human rights activists have been too radical in their critique of US drone strike policy, as reflected in the Presidential Policy Guidance adopted during the Obama administration, and in the context of the Trump administration’s recent proposal to revise this standing policy and relax some of its requirements, especially with regard to the procedure for authorizing lethal strikes. In particular, Ryan argues that human rights activists have been portraying as clearly unlawful decisions which legally fall within the bounds of reasonable disagreement.
In that regard, Ryan argues – persuasively in my view – that the mere fact that a drone strike takes place outside an area of active hostilities under the PPG does not mean that the strike takes place outside armed conflict under IHL. The former, as Ryan correctly notes, is not even a legal term of art. I also agree with Ryan that some US positions that used to be regarded as novel or anomalous have become mainstream with time, in part through the acceptance of these positions by European and other states, by the ICRC and scholars – viz., for instance, the idea of ‘spillover’ NIACs (for more on the operation of this mainstreaming process see here; on spillover NIACs see here).
That said, Ryan in some respects significantly overstates his argument. Yes, states have accepted the idea that they can be engaged in an armed conflict with a terrorist group – but I would say that this really was never in doubt. What was in doubt is whether this NIAC can be global in scope, and this US position has not been mainstreamed – or at least I am unaware of any other state which agrees with it. What do I mean by this?
The US position is that it is engaged in armed conflict with Al-Qaeda and associate forces, full stop; not that there is a series of distinct non-international armed conflicts with Al-Qaeda in Afghanistan or AQI in Iraq or AQAP in Yemen, all of which have their own independent existence after (arguably) having reached the organization and intensity thresholds required by customary IHL, and all of which may independently end. Combined with the completely nebulous concept of associated forces and its further application to entities with a very diffuse organizational structure, this US theory has allowed it to claim that many of its operations were conducted in the course of an armed conflict, when, in fact, under the mainstream view they would not have been. The only body of international law that could have regulated the use of force in these circumstances would be human rights law, in addition to the jus ad bellum.
It is hence this US view of a single, non-territorially localized NIAC with Al-Qaeda which remains problematic. And it is because of that underlying premise that Ryan’s reliance on the acceptance of ‘spillover’ NIACs is also problematic. I personally have no problem in accepting that, for example, an ISIS commander who was directing hostilities against Iraqi and coalition forces in Iraq and who crosses the border into Turkey and continues directing his forces in Iraq from there remains subject to IHL and that the NIAC has spilled-over into Turkey. He would continue being a lawful target under IHL, but Iraq/the coalition would have additional jus ad bellum obligations vis-a-vis Turkey. I also agree with Ryan that it makes no sense to confine this spillover effect to physically neighboring states. That effect would continue if, say, the commander boarded a ship on the high seas or went to Thailand, so long as what he continued doing had a nexus to the ongoing NIAC in Iraq. But this is still a far cry from the US theory that any individual in the world who professed allegiance to Al-Qaeda (or ISIS, or whoever) was a fighter in a global NIAC which has no nexus to specific hostilities in any given place.
So, while I think Ryan is right in saying that we need to be careful in drawing legal conclusions based on the formulations of a US policy guidance, it is not correct to say that all US drone strikes have been conducted in the context of an armed conflict recognized as such under IHL as properly interpreted (to be fair, I’m not sure whether Ryan even thinks that). In other words, if D is the set of all historical US drone strikes, it has two sub-sets: DIHL and DIHRL, the latter of which is regulated only by IHRL and has a non-zero content (the jus ad bellum aside, and misguided US positions regarding the non-extraterritoriality of IHRL also aside). Footnote – the best such UK example would be the August 2015 drone strike against ISIS recruiter Reyaad Khan in Syria. Within DIHL there is a further sub-set – let’s call it DIHL+IHRL – in which IHRL not only applies in parallel to IHL (which it does always, in my view), but does so in way that modifies the outcome that would have been correct if IHL had applied alone – for example, by imposing an additional requirement of capture before kill in specific circumstances, as in the Israeli Supreme Court’s Targeted Killings case.
A virtue of Obama’s PPG was precisely that, even though it maintained the rigidity of the US legal position that IHRL did not apply to an extraterritorial taking of life, it substantially reduced the risk of an IHRL right to life violation in both DIHRL and DIHL+IHRL scenarios, by minimizing collateral damage (which IHRL does not categorically prohibit in any event – viz. Finogenov v. Russia) and by moving the use of lethal force against the intended target closer to an option of last resort. (This of course assumes that the PPG was in fact applied as written, which is probably assuming too much). The new Trump policy will at least prima facie escalate this risk, as does the US continued insistence on the global NIAC theory which, again, to my knowledge other states have not endorsed, and which clearly (and I use this word advisedly) has no basis in IHL.