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Home Armed Conflict Taking Stock of the Law on Targeting, Part I

Taking Stock of the Law on Targeting, Part I

Published on December 12, 2016        Author: 

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.

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10 Responses

  1. Hi Monica,

    Great post. Looking forward to Part II. Two clarifications:

    “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.”

    Actually, my view is that the law of NIAC, like the law of IAC, should be triggered by a “first shot”, that is, by the first use of (even) low-intensity force between the relevant entities. So organization and capacity alone do not trigger IHL, but once organization and capacity exist then even low-intensity force should trigger IHL.

    “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.”

    Sort of. In my initial post (not in reply), I stated (rather briskly, I fully admit) that IHRL applies during armed conflict, that IHRL may prohibit killing when capture is feasible, and that measures derogating from IHRL may not be strictly required throughout the territory of a State involved in a NIAC. Rather than “disentangle regime choice”, my view is that both regimes (more precisely, both bodies of law) apply. And though I merely gestured at the applicable substantive rules, I didn’t exactly leave the question open either.

    Anyway, looking forward to Part II.

    Very best,

    Adil

  2. Charlie Kirk

    Thank you for your very interesting article Monica.

    I suspect, though, that the regime question is one of fundamental importance. Not only for us lawyers trying to work out the applicable law, but for (the families of those) that are wrongfully targeted? Much easier at the end of the day to bring a claim under human rights mechanisms. Until IHL (and ICL) introduces very real systems of redress, this creeping suffocation of IHRL is likely to mean more and more victims getting less and less protection.

    Looking forward to Part 2, too.

  3. Jordan J Paust

    Problem: human rights thresholds and standards, for example, under the ICCPR are not the same as those developed under the European Convention. Persons protected in most contexts abroad will only be those who are in the actual or “effective control” of the targeting entity. The laws of war regarding lawful killing are not so limited in reach. Also, the right to life is conditioned by the very broad contextually related word “arbitrary,” which is far less protecting than law of war standards for targeting persons who are, for example, DPH.

  4. Jordan J Paust

    With respect to Human Rights on the Battlefield, please see http://ssrn.com/abstract=2563329
    The US denial of application of relevant human rights law during armed conflict is in error.

  5. Monica Hakimi

    Thanks for all of these thoughtful comments.

    Adil, I’m not sure there’s much space between: (1) the claim that IHL governs “the first use of (even) low-intensity force,” and (2) the claim that IHL’s application does not require the violence to meet a certain level of intensity. Do you mean simply to clarify that IHL would be triggered only when the first shot is actually deployed? Or am I missing something more fundamental about your view?

    Also, I understood you to be “disentangling” the regime choice from the substantive rules because you suggested that, though both regimes might apply, we still would have to determine what they require. Sorry if I was clunky in conveying your position.

    Charlie, I think you’re right that international lawyers must at times claim that IHRL applies in order to use certain institutional mechanisms. But even here, I’d suggest that they treat the “jurisdictional” issue as separate from the question of what substantive rules apply.

  6. Dan Joyner Dan Joyner

    Hi Monica,
    A very good post. I think you make the case persuasively that there are situations in which neither IHRL nor IHL, nor some hybrid of the two, is the best way to conceive of the international legal rules governing the conduct of participants. You mention the possibility of the creation of “codes of conduct.”

    I’m interested to hear in your second post some discussion of the juridical nature of these codes of conduct. I’m assuming, perhaps incorrectly, that you mean to propose some sort of agreed normative framework to be applied to such situations, that does not consist of formally binding law, such as in a treaty or in CIL. I would be very interested to hear your thoughts on the legal theory implications, as well as the practical implications, of the use of soft law codes of conduct to “regulate” such situations.

    Best,
    Dan

  7. Marty Lederman

    This is a great post, Monica–it beautifully captures what I’ve been been trying to articulate for awhile now: namely, that we spend far too much time on the “is it an armed conflict?” and “does IHRL apply?” questions, in the abstract, without sufficient attention to what the applicable rules of conduct are, or ought to be, in various, quite disparate settings.

    With Adil and (I believe) you, I think it would be extremely beneficial to assume that the *restrictions* of IHL ought to apply whenever force is used between a state and an organized armed group. (I’d add: the immunities from domestic-law culpability ought to apply across the board, too, although that’s no longer a very practical concern.)

    I also think it’s fair to say, as the Obama Administration suggested in its Report last week, that IHRL (customary IHRL, anyway) also categorically applies to such uses of force. The key questions –the ones you rightly urge us to pay more attention to — then become when, if ever, IHRL permits status-based targeting, and (as you indicate) when IHRL permits use of force only as a last resort. Or, to put it more broadly in terms of the ICCPR prohibition–to determine which uses of force, in which situations, are “arbitrary,” a question that can only be answered by inquiring carefully as to why IHL has traditionally privileged the use of force in certain situations among organized groups that are mutually devoted to using force against one another, and that have a command structure in which they can direct their agents (armed forces) to strike upon command.

    Anyhow, I’m also looking forward to Part Two. I hope these posts trigger a much needed, more granular reorientation in the academic and governmental discussion of these legal questions.

  8. Hi Monica,

    “Do you mean simply to clarify that IHL would be triggered only when the first shot is actually deployed?”

    Yes.* I worried that wasn’t clear from your description.

    Many thanks,

    Adil

    *On my view, IHL (eg, target verification and selection, precautions in choice of means and methods, etc) also applies to the planning of a first strike, before the first strike is actually carried out.

  9. JS

    Whether or not you accept an anticipatory use of force (AUF) against extra-territorial NSAs triggers the jus in bello, one must acknowledge the requirement for the international legal basis for such intervention (even if not a formal jus ad bellum).
    It is trite that such a basis, inevitably individual self-defence in this context, would confine the acting state to that which is necessary or proportionate – -whether or not an armed conflict is formally triggered – and for the period of any such state action.
    Although the requirements of necessity and proportionality are easily discharged within ongoing and established armed conflicts (i.e. given the established intensity of fighting and organisation of the NSA etc.), such that one need look no further than IHL as a comprehensive guide to the acting state’s conduct of hostilities, the scenario of a discrete AUF should perhaps be distinguished from such traditional contexts, whether or not it amounts to a nascent armed conflict.

    In other words, even if your AUF is construed as a nascent armed conflict, you might well be expected to confine your targeting to the individuals posing the threat to the state actor (as opposed to any member of the NSA OAG if otherwise unconnected to the threat) under the overarching necessity and proportionality analysis of the jus ad bellum. If the threat could be averted that way, then the self-defence basis for intervention and any associated armed conflict paradigm should then expire (assuming no broader armed conflict pertains).
    On the other hand, discounting IHL, it would be extraordinary if IHRL – as applicable – would not account for the facts on the ground, and would not be informed by the necessity and proportionality of the resort to lethal force (including in relation to anticipated civcas beyond those targeted) under the invocation of article 51 and the harmony of the international legal framework.

  10. Jordan J Paust

    Adil: can there actually be an armed conflict of any sort if a “first shot” is fired and there is no armed response? I see your point that it may be preferable to back up to a point before the first shot is actually fired for application of rules concerning target selection, etc., but there seems to be a problem if no conflict exists after the “first shot” — still law regarding use of force, e.g., self-defense, could apply.