Taking Stock of the Law on Targeting, Part I

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.

Jonathan Horowitz described Haque’s proposal as “dangerous” because it would “open[] the path for States to rely more regularly on IHL’s targeting and detention rules.” Horowitz’s worry was that these rules are more permissive, or at least more easily manipulated, than are the rules under IHRL. Deborah Pearlstein expressed similar concerns. In her view, “it is not possible as a matter of law to reconcile the basic human rights law prohibition on killing with the basic [IHL] acceptance of the power to kill as a first resort.” Here, Horowitz and Pearlstein resist IHL’s application because they assume that it would permit more deprivations of life and liberty. To his credit, Haque replied by trying to disentangle the regime choice from the substantive rules. He meant to leave open the question of which codes of conduct would govern under his proposal. But those questions are a large part of what’s at stake in the debate on the regime choice. People insist on applying (or not applying) a particular regime because they worry about the substantive consequences of that decision.

That worry is to some extent understandable. Clearly, the IHL rules for targeting people in high-intensity conflicts between organized armed groups that identify themselves as such are more permissive than are the IHRL rules that apply in classic law enforcement settings. But those are the easy cases and not really at issue in the IHL-versus-IHRL debate. For example, few would argue that the coalition that is fighting the so-called Islamic State in Iraq and Syria should be constrained by law enforcement rules. Likewise, few would say that New York City police should have the license to conduct themselves as if they are on a hot battlefield.

Things get complicated when we move outside each regime’s paradigmatic setting. This is where the IHL-versus-IHRL debate stands in for disagreements about the acceptable codes of conduct. But it is also where each regime is most unsettled and contestable. In these settings, it is misguided to assume that the regime choice determines or justifies particular substantive rules.

The Human Right to Life

Let me use IHRL to illustrate the point. IHRL is often said to prohibit states from using lethal force except as a last resort to contain an imminent threat. That standard applies in law enforcement settings in which states have considerable situational control, and the threats are relatively modest. But as it tends to be articulated, the standard does not fully capture IHRL’s fact-specificity even for these settings. In particular, the “last resort” requirement does not mean that states must pursue every available alternative before using lethal force. Rather, human rights institutions generally apply this requirement to mean that states must pursue reasonable measures, in light of the circumstances, to avoid taking a life.

For example, in Bubbins v. United Kingdom, the European Court of Human Rights (ECHR) held that U.K. police lawfully killed a seemingly armed intruder who refused to vacate an apartment. The police acted lawfully, even though they did not take every available precaution to avoid depriving the intruder of life. The police did not use a trained negotiator to try to end the siege, and they did not let the suspect escape and then try to capture him at a later point, when he would be off guard. Both of those options were available to the police and likely would have reduced the risk to the intruder’s life. The police acted lawfully, even though they forwent those options, because they acted reasonably to reduce the risk to life without compromising the police mission. They secured a perimeter around the apartment, used flood lighting to enhance their visibility, cautioned neighbors to stay indoors, encouraged the intruder to surrender, and so on. To be sure, people might disagree about whether particular measures — in this case, using a trained negotiator — were reasonably foregone or should have been taken. But that is the IHRL inquiry. It is heavily fact-dependent.

Because the inquiry is fact-dependent, it is not surprising that human rights institutions tend to apply IHRL more loosely when they assess killings outside law enforcement settings — when situations are more chaotic, and states have less control. In Isayeva v. Russia, the ECHR suggested that Russian agents could lawfully kill Chechen fighters, even absent the kind of imminent threat that IHRL usually requires. In Finogenov v. Russia, the court recognized that IHRL’s law enforcement rules could be relaxed when the circumstances so require — there, because Russia was pressed for time and lacked situational control. For similar reasons, the ECHR has indicated that IHRL might be more lenient when it is applied extraterritorially. A state that acts extraterritorially typically lacks the tools and institutions that, back home, allow it to achieve its legitimate security interests while satisfying strict human rights standards.

The point is that, even if IHRL applies outside ordinary law enforcement settings, its content will be fact-dependent. We still must answer the question of what IHRL requires in these circumstances. As I have explained elsewhere, a similar dynamic is at play on the IHL side of the ledger.

Moving Beyond the Regime Question

At the very least, then, the IHL-versus-IHRL debate is not really where the action is. The action is in defining codes of conduct for situations that resemble neither the traditional law enforcement paradigm nor the traditional armed conflict paradigm. To define these codes of conduct, we might draw on IHL and/or IHRL. But we should not assume that the regime choice determines the outcome.

I suspect that many readers will insist that it is still useful or necessary to identify the applicable regime before defining the appropriate codes of conduct. These readers might claim that, even if the regime choice does not necessarily lead to particular results, it might stack the deck in one direction or another, or help us frame the substantive question. Advocates who believe that more permissive rules are appropriate might push for IHL, while those who seek more restrictive rules might push for IHRL. I understand that impulse but think it has real costs. Insisting that the regime choice determines the substantive result reifies the content of each regime as it has developed for its principal context and makes it harder to adapt the law to new contexts — including many contexts in which armed force is now used.

Here is an example: although IHL is widely thought to permit states to target nonstate fighters as a matter of first resort, some have argued that IHL is better interpreted as requiring capture whenever feasible. Many who resist the stricter interpretation worry about applying it on active battlefields, when it could “inject potentially deadly hesitation into the targeting process.” In other words, they assume that, if IHL applies, it requires the same thing on active battlefields as it does in other settings, even though states in those other settings might reasonably capture people without much risk to their own agents or missions. The IHL-versus-IHRL frame reinforces that assumption by suggesting that the regime choice is ultimately what drives the substantive rules. By contrast, underscoring that the rules in each regime are contextually variable would make it easier to press for the stricter interpretation when the circumstances so warrant — in some but not all situations in which IHL applies.

To wrap up for today: legal analysts who assess targeting operations tend to put too much stock in the regime question. This approach is not particularly helpful for, and might instead get in the way of, defining the codes of conduct for distinct settings. Later this week, I’ll elaborate on this argument by using as a concrete example U.S targeting policies.