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

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.