Taking Stock of the Law on Targeting, Part II

On Monday, I used the recently released U.S. report on military operations to assess the law on targeting. I argued that the dominant mode for analyzing these operations — asking whether international humanitarian law (IHL), international human rights law (IHRL), or a combination of both regimes governs — is problematic. The targeting rules in each regime are context-dependent, so the rules that have been developed for one context would not necessarily require the same thing if they were extended to a different context. Focusing so heavily on the regime choice is not only unhelpful but can be counterproductive. It reinforces the idea that the regime choice is ultimately what determines the codes of conduct. And so, it makes it harder to develop the law for situations that fit neatly into neither regime. Today, I’ll use U.S. targeting policies to amplify on my argument.

U.S. Position on Targeted Killings

The U.S. position is significant precisely because it pushes past the stale IHL-versus-IHRL debate. The United States does not treat the regime choice as particularly relevant to question of which targeting rules apply.

The U.S. legal claim seems to be that, although IHRL might apply to certain cross-border targeting operations, IHL defines or supersedes what IHRL would require; IHRL does not have independent force. Yet for years now, the United States has made clear that it does not intend to exploit, in all contexts in which it says IHL applies, the expansive authorities that are usually associated with IHL. The United States claims that, outside designated areas of active hostilities, it generally will use force only when someone “poses ‘a continuing, imminent threat to U.S. persons’” and “only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” (See p. 25 of the U.S. report.)

Here, the United States is defining new codes of conduct for situations that resemble neither the traditional law enforcement paradigm nor the traditional armed conflict paradigm. The standard that the United States articulates for these situations comes quite close to the standard that ordinarily applies under IHRL. Recall that IHRL generally permits lethal force only if someone poses an imminent threat and the state has taken reasonable steps to avoid depriving him of life. In addition, the U.S. standard comes close to the stricter interpretation of IHL that I discussed on Monday — the interpretation that would require states to consider capturing, instead of killing, people when feasible. Thus, the United States is downplaying the relevance of the regime choice and trying to develop codes of conduct for situations for which neither IHRL nor IHL has all the answers. (The European Court of Human Rights has arguably made moves in a similar direction.)

Assessing U.S. Operations

Of course, the fact that the United States has articulated a new approach to targeting does not mean that we should just accept it. We might still criticize the United States and hold it accountable on the merits for its decisions. For example, we might present and defend an alternative standard for assessing U.S. operations. (I have offered one way to extrapolate a standard from IHRL and IHL, but there are others.) Alternatively, we might question how the United States applies its standard in concrete cases. What are the criteria for determining that someone poses a “continuing, imminent threat” or that capturing him is unreasonable? And are U.S. targeting operations even effective at containing the threat?

Already, international and U.S. national security lawyers press those questions on the United States. But they also keep insisting that the regime choice matters — that what justifies particular results is ultimately the applicable regime, rather than the balance of values and considerations that are at stake in distinct contexts. (For examples, see here, here, here.) This focus on the regime choice is distracting and potentially counterproductive.

Let me end by anticipating and responding to three contrary intuitions. First, some readers might be uncomfortable with the law’s pliability in this area. Open-ended standards are often thought to be less effective at regulating states than are precise rules. This aspect of targeting law might be unfortunate, but it is unavoidable. IHL and IHRL both require context-specificity when assessing targeting decisions.

Second, because the United States claims to apply its “enhanced IHL” rules only as a policy matter, it preserves the discretion to deviate from those rules when it decides that the circumstances so warrant. Readers might claim that, if we insist that IHRL governs and establishes stricter rules, we could better hold the United States legally accountable for its decisions. In other words, we could strip the United States of the discretion to decide for itself when its enhanced IHL rules apply. As a practical matter, however, this insistence seems to have had the opposite of its desired effect. The reason that the United States so staunchly resists giving IHRL independent force in this area is not that that it intends to exploit the most expansive authorities under IHL. One reason is probably that it seeks to preserve some operational flexibility. A second reason is that it equates or is worried that others will equate IHRL with law enforcement rules. It is concerned that IHRL will be interpreted to require the same thing in, say, Yemen as in New York. Insisting that the regime choice matters keeps that concern salient and gives the United States incentives to continue resisting IHRL.

Finally, readers might chalk this up to U.S. exceptionalism. We should not develop a new analytic framework on targeting just because the United States has pressed a particularly assertive position. I suspect, however, that the United States is not alone in resisting IHRL’s application out of a concern that it will be equated with law enforcement rules. For example, that concern likely also animated the United Kingdom’s disappointing responses, in October 2016, to the British Parliament’s Joint Committee on Human Rights report and inquiries about the legality of using drones for targeted killings. As Shaheed Fatima has explained, the committee tried to focus the government on the regime choice, but in doing so, it just elicited a bunch of evasive answers. Likewise, the concern probably animates the persistent claims by militarily active states that IHRL applies extraterritorially only in very limited circumstances. And it might have driven the recent moves by France, Turkey, and the United Kingdom to derogate from IHRL for certain counterterrorism operations. Treating IHRL as if it is a proxy for specific codes of conduct gives states perverse incentives to try to “opt out” of it — which, again, distracts attention from and gets in the way of the important project of trying to define when targeting is or is not justifiable.