US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?

In August, the United States Senate Foreign Relations Committe, released a report (“Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents”) which confirmed that U.S. forces in Afghanistan are now mandated to kill or capture drug traffickers in Afghanistan who have links to the Taliban. The Taliban is estimated to receive between $70 million and $500 million dollars a year from the drugs trade  and this money is said to play a critical role in financing the insurgency. Therefore, NATO (led on this issue by the US and the UK) consider it essential to starve the Taliban of the funds which make the insurgency in Afghanistan possible. However, targeting of individual drug traffickers or of drugs labs and other objects associated with the drugs trade raises some fundamental questions about who or what is a lawful target in armed conflict. The US and NATO’s policy appears to be a regrettable return to the notion of “quasi combatants” and to the idea of total war in which persons or industries connected to the war effort become legitimate targets. Given that the International Criminal Court has jurisdiction over acts committed in Afghanistan and the Office of the Prosecutor has been collecting information in order to decide whether to open an investigation into alleged crimes committed in that country (see here and the discussion at Opinio Juris), US and NATO commanders ought to pay careful consideration to the legality of their targeting policy.

According to the report of the Senate Foreign Relations Committee:

two U.S. generals in Afghanistan said that the ROE [Rules of Engagement] and the internationally recognized Law of War have been interpreted to allow them to put drug traffickers with proven links to the insurgency on a kill list, called the joint integrated  prioritized target list. The military places no restrictions on the use of force with these selected targets, which means they can be killed or captured on the battlefield; it does not, however, authorize targeted assassinations away from the battlefield. The generals said standards for vetting on the list require two verifiable human sources and substantial additional evidence. Currently, there are roughly 50 major traffickers who contribute funds to the insurgency on the target list. ”We have a list of 367 ‘kill or capture’ targets, including 50 nexus targets who link drugs and insurgency,” one of the officers explained to the committee staff. [pp. 15-16]

The report goes on to explain that:

The authorization for using lethal force on traffickers caused a stir at NATO earlier this year when some countries questioned whether the killing traffickers and destroying drug labs complied with international law. Jaap de Hoop Scheffer, secretary general of NATO at the time, said filters had been put in place to make sure the alliance remains within the bounds of the law.

Indeed, this controversy within NATO is one which dates back to October 2008, when NATO defence ministers first agreed to allow forces in Afghanistan to target Afghan drug traffickers (see Washingon Post report). However, the dispute intensified in January when it was reported in the German Magazine Der Speigel that NATO’s Supreme Allied Commander Europe, American General John Craddock issued guidance to the German head of the NATO command center responsible for Afghanistan and the American General then in charge of the International Security Assistance Force (ISAF) in Afghanistan. Craddock wrote that it is “no longer necessary to produce intelligence or other evidence that each particular drug trafficker or narcotics facility in Afghanistan meets the criteria of being a military objective.” Apparently, the respondents argued that such a policy would be illegal under international humanitarian law. 

The furore generated by the January guidance must have had some effect as the policy outlined in the Senate Foreign Relations Committee differs in an important respect from the Craddock guidance. Craddock’s guidance appear to countenance the targeting of any drugs trafficker or narcotics facility in Afghanistan without any need for a connection with the armed conflict going on there.  It is now the case that targetted drug traffickers must have a proven link to the insurgency. It is difficult to think of an IHL argument that would legitimate the Craddock approach as that approach explicitly contemplates that the person or object need not be a military objective. The new approach, however, seeks to confine targeting of individuals not only to those who fund the Taliban insurgency but particularly to those found on the battlefield (whatever that may mean). Also, NATO’s website confirms that ISAF may only engage in “the destruction of processing facilities and action against narcotic producers if there is a clearly established link with the insurgency.”

However, the new approach raises questions about whether it is lawful to target a person or an object simply because they provide finance for armed forces or contribute to the sustaining the war effort. International humanitarian law clearly forbids making the civilians the object of an attack. This is the case both in an international armed conflict but also in a non-international armed conflict, which is what is taking place in Afghanistan (see Article 13(2) of Additional Protocol II (1977) to the Geneva Conventions (APII)). However, as with international armed conflicts, civilians who take a direct part in hostilities in non-international armed conflicts will lose their immunity from attack (Art. 13(3) APII).   The key question with regard to the targeting of individual drug lords is whether they may be regarded as combatants (or fighters), or, alternatively, as civilians taking a direct part in hostilities. It is only if they fall into either of these categories that they become a legitimate target. Although IHL in non-international armed conflicts prohibits intentional targeting of civilians it has not been clear (both as a matter of law and in practice) who is a civilian or a combatant in such a conflict.  Nevertheless, it is hard to see how Afghan drug lords can be regarded as combatants. To the extent that one is talking about drug traffickers who are not members of the Taliban but who simply fund the Taliban (eg by paying it protection money) these are clearly not fighters. They may act illegally but they are nevertheless civilians. Some NATO commanders have claimed that NATO is not targeting drug dealers with links to the Taliban but rather Taliban members with links to the drug trade. However,  membership of the Taliban alone is not sufficient to constitute a person as a combatant or a fighter.

The ICRC’s recent Interpretive Guidance on the Notion of Direct Participation in Hostilities (issued earlier this summer and commented on by me here) states that:

For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”).

On this analysis, only those Taliban members who have a continuous combat function, i.e, whose function in the group it is to engage in hostilities, may be regarded as legitimate targets. Where a drug lord does not have such a function, he will not be a lawful target.

However, Taliban members or drugs lords may still be targeted where they take a direct part in hostilities. Perhaps this is what the US Senate Foreign Relations Report means when it says that the selected targets may be killed or captured on the battlefield. However, the notion of “direct participation in hostilities” is one on which there is not so much clarity. The ICRC’s recent Interpretive Guidance on the Notion of Direct Participation in Hostilities goes some way in providing such clarity. Guidance V(2) of the ICRC’s work points out that:

“there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part.”

In the view of the ICRC, direct causation means that the harm in question must be caused in one causal step. Whether or not one agrees with this particular definition it is clear that direct participation means that it is the act (or the operation of which the act forms a part) which constitutes that participation which causes the actual harm to the enemy personnel or equipment. There is a distinction to be made between acts of participation in hostilities and acts which generally sustain the war effort. This is a crucial distinction as it may be the case that much activity in a state in armed conflict may go towards sustaining the war effort. To permit anyone who is involved in the war sustaining effort to be a direct target is to allow for unrestricted warfare – practically everyone could be a target. This would be a regressive move. Deplorable as their activities might be, IHL does not permit targeting of a drug trafficker simply on the basis of their drug trafficking and financing of the insurgency. More would be required for that person be considered as taking a direct part in hostilities. The Israeli Supreme Court accepted in the Targeted Killings case (para. 35) that providing monetary aid to belligerents does not constitute direct participation in hostilities.

For purposes of targeting, it matters little that drugs traffickers are engaging in illegal activity. The reason they are now being subject to targeting is not the illegality of their activity but the consequences of their conduct – that it funds the adverse party. From that perspective, their activity is no different to that of an executive in any industry (say, oil or manufacturing) which provides the bulk of the income of a belligerent State. Although some have argued (and still argued) that factories and objects connected with war sustaining industries are legitimate targets, I don’t recall it being argued in the past that individuals connected with these industries are lawful targets. Indeed,

This leads to the question whether the Afghan poppy farms and drugs labs for converting the poppy paste to heroin are legitimate targets. As far as IHL is concerned the relevant questions are: (i) whether IHL applicable in non-international armed conflicts forbids the targeting of civilian objects and (ii) whether drug related objects belonging to members of the Taliban or which fund the Taliban are military objectives. While the ICRC Customary International Law study (Rule 7) says that the prohibition of attacks on civilian objects applies also in non-international armed conflicts, it is significant that such a prohibition is not contained in Additional Protocol II. Also, while Art. 8(2)(b)(ii) of the Statute of the International Criminal Court makes it a war crime to intentionally target civilian objects in an international armed conflict, Art. 8 omits to make such conduct a war crime in a non-international armed conflict.

Even if the prohibition against targeting civilian objects applies in the Afghanistan armed conflict, there is a question as to whether objects which contribute to funding a belligerent party are military objectives. To use the wording of Art. 52(2) of Additional Protocol I, the question is whether such objects make “an effective contribution to military action.” The United States takes the view that objects are lawful targets where they “effectively contribute to the enemy’s war-fighting/war-sustaining capability'”  (Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, paras. 5.3.1 and 8.2, reaffirmed in the Instruction No. 2 issued by the Dept of Defense for Military Commissions 2003). This interpretation is too broad and is rejected by scholars and by other States. It is generally considered that the contribution of an object to military action includes contribution to military action in general, however there must a proximate connection between the object and military action. The fact that an object provides the finances for military action is not sufficient. Otherwise, all facilities/industries that generate taxes for a State would be liable to attack in time of armed conflict. This would mean that practically all objects connected with economic production are liable to attack. To take such an approach would be a major reversal of the position of NATO allies other than the US – who have not hitherto taken this approach. Again, as far as the IHL prohibition of the targeting of civilian objects is concerned, it matters little that the object in question is being used in illegal activities. The reason for the targeting is that it is providing finance for the insurgency, in other words it is war-sustaining. If this were permissible, it would be permissible also for lawful activity and would be a regrettable return to a policy of total war.

However, there is another way of looking at the destruction of civilian property. This is the view that the destruction is permissible, not specifically by IHL, but is part of law enforcement in Afghanistan. NATO’s website makes it clear that action by ISAF forces to destroy narcotics facilities can be undertaken only upon request of the Afghan Government. Thus, it could be argued that such destruction is simply assistance given by ISAF to the enforcement of Afghan criminal law.  It is not uncommon that law enforcement officials destroy property in the process of law enforcement, eg the policeman who breaks down the door in the course of entering a house to make an arrest. In domestic law, where a seizure is made of illegal drugs, one would indeed expect law enforcement to destroy that property. The only applicable restraints would be the restraints imposed by human rights law. These restraints at least apply to the Afghan government and some would consider them as applying to the NATO forces too (I ignore for now the tricky question of the extra-territorial application of human rights treaties). These human rights restraints will require that the deprivation of property not be arbitrary and that it be in the public interest. Also proper procedure must be followed. As long as these principles are followed, governments are allowed to destroy property for the purposes of law enforcement. NATO may therefore be acting lawfully as it cannot be excluded, a priori, that action by military forces would fulfil these conditions.

Given that international (human rights) law would permit destruction by a government of civilian property in peacetime for the purpose of law enforcement, it would be surprising to have a blanket prohibition in time of internal armed conflict. This gives reason to be cautious about accepting that there is  blanket prohibition of targeting civilian property in the customary IHL applicable to non-international armed conflicts.  Of course this raises question about the relationship between IHL and human rights law. However, it would be odd for a government to find itself more restrained by international law in time of internal armed conflict than it would be absent such an armed conflict.

To conclude, NATO’s targeting of individual Afghan drug dealers would clearly be unlawful, if based solely on their status as funders of the insurgency. However, the position is more complicated with regard to the destruction of poppy farms and drugs labs.