Unprivileged Does Not Mean Prohibited

In his latest post, Ryan takes issue with those who argue that it would violate international law for a state civilian agency, such as the CIA, to use force in an armed conflict.  I agree with Ryan’s ultimate conclusion—that there is no such international law restriction—but I get there somewhat differently, via a more straightforward route that does not depend upon the typology of the armed conflict in question.  Moreover, I doubt the issue is truly as controverted, or as unsettled, as Ryan suggests.

As Ryan notes, one does occasionally confront the argument that to the extent CIA personnel are responsible for the use of force in the current U.S. armed conflict with al Qaeda and the Taliban, that use of force violates international law because CIA personnel are “unprivileged.”  (I’ll assume for purposes of this post that CIA officers or employees are responsible for the use of force in some instances.  I should note, however, that as far as I’m aware the government has neither confirmed nor denied whether or to what extent that assumption is accurate.  In the one instance in which it has acknowledged some CIA involvement, the bin Laden operation in Abbottabad (see Point 9 of this post), the force reportedly was employed by members of the Armed Forces, i.e., Navy SEAL Team 6.  Unofficial accounts would suggest this was not an aberration–that the relationship between the armed forces and civilian authorities might often be close and complex.  See, for example, pages 11-14 of this Columbia Law School Human Rights Clinic Report and pages 328-30, 341-51, and 353-57 of co-blogger Philip Alston’s recent article.)

This argument, where it appears, mistakenly conflates unprivileged with unlawful uses of force.

My understanding of the relevant international law is as follows:

1.  In any sort of armed conflict, international or noninternational, certain actors—principally, the armed forces of a state—are entitled as a matter of international law to the combatant’s privilege.  What this means is that if they engage in a use of force that would otherwise be unlawful under the domestic criminal law of the state in which they act (say, murder, or battery), but they do so in an armed conflict and in conformity with the laws of war, international law confers upon them an immunity from culpability under that local domestic law.  A killing that would be murder in peacetime, for example, thus becomes a “privileged” killing in an armed conflict.  This rule is instantiated as to some conflicts in Article 43(2) of the First Additional Protocol to the Geneva Conventions; but it was established and honored as a matter of custom long before the First Additional Protocol, and it continues to be treated as custom, in international and noninternational conflicts alike.  So, for example, U.S. armed forces cannot be prosecuted for murder in Afghanistan if they kill al Qaeda or Taliban forces in that nation in conformity with the laws of war.  (One very interesting question, I think, is whether the privilege also protects such forces when they use force that is justifiable as self-defense under international law, but outside of an armed conflict.  That’s a subject for another day.)

2.  The combatant’s privilege does not, however, protect other actors who use force in an armed conflict, with minor exceptions (in particular, persons who act as part of a levée en masse).  Therefore, the laws of war do not immunize such actors from culpability under the relevant domestic law (i.e., murder laws) of the state in which they act.  This would apply, for example, to persons who use force as part of a civilian agency of a belligerent state (the CIA or otherwise); to privateers who use force, with or without their home state’s sanction; and to persons who are part of the armed force of a belligerent terrorist organization such as al Qaeda.  None of those actors is privileged by international law to use such force.

3.  This is the important point, however:  The absence of the privilege does not mean that the use of force by such actors violates the laws of war, or any other international law.  To be sure, because such actors do not qualify for the combatant’s privilege they might be culpable for violating the domestic law of the nation in which they act.  This should hardly come as a surprise:  As Philip Alston has recently explained (see pp. 368-69), many, if not most of the foreign operations of the every nation’s intelligence agencies–not only covert actions, but also ordinary intelligence-gathering–violate the laws of the third countries in which they operate:  “This applies as much to Russian agents operating in the United States as it does to U.S. intelligence operatives in Pakistan.”

But international law does not prohibit the use of force merely by virtue of the fact that it is undertaken by unprivileged civilians (or other unprivileged belligerents).  Such persons might violate other laws of war (the prohibitions on targeting civilians or perfidy, for example), depending on how they employ force; but the fact that they are unprivileged does not itself cause their use of force to transgress international law.

This is, I believe, a complete response to the charge that international law would prohibit CIA actors from using force in the current armed conflict.  What is more, there is really not much dispute among nation states and commentators on that question.  See, for example, paragraphs 70-71 of Special Rapporteur Alston’s 2010 Report on extrajudicial killings.

What is the source of the occasional confusion, then—of the idea one sometimes hears that international law prohibits unprivileged belligerency, as such?

Mostly, I think, the source of the confusion is some ambiguous language in Chief Justice Stone’s opinion for the Court in Ex parte Quirin (1942).  In his classic treatment in 1951, however, Major Richard Baxter (who would later go on to write the elegant, and still unsurpassed, 1956 Army Field Manual on the Law of Land Warfare), explained why those readings of Quirin are mistaken, and that international law does not proscribe unprivileged belligerency.   See Richard R. Baxter, So-Called ‘Unprivileged Belligerency’:  Spies, Guerillas, and Saboteurs, 28 Brit. Y.B. Int’l L. 323 (1951).

Baxter’s understanding has been almost universally accepted ever since.

In 2007, however, the confusion re-emerged, owing largely to language in the Department of Defense’s 2007 Manual for Military Commissions, and arguments that commissions prosecutors made to similar effect in several cases.  The 2007 Manual stated that an accused acted “in violation of the law of war” if he engaged in “acts as a combatant without having met the requirements for lawful combatancy” (p. IV-11).  That view was at odds with the established, Baxter view, and was sharply, and justifiably, criticized by many observers.

Fortunately, that language was removed in the 2010 Commissions Manual.  It was replaced with a passage stating that “an accused may be convicted in a military commission for these offenses [e.g., murder or property destruction ‘in violation of the law of war’] if the commission finds that the accused employed a means (e.g., poison gas) or method (e.g., perfidy) prohibited by the law of war; intentionally attacked a “protected person” or “protected property” under the law of war; or engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war” (page IV-11).

In other words, the 2010 Manual view is not that killing by an unprivileged belligerent violates the international laws of war, but instead that “murder committed while the accused did not meet the requirements of privileged belligerency” is something that can be tried by a military commission “even if such conduct does not violate the international law of war.”  To the extent this assertion is predicated on the notion that murder by an unprivileged belligerent is a so-called “domestic common law of war offense” that can be tried in a non-article III court, of course that theory has not found favor thus far in the U.S. Court of Appeals for the D.C. Circuit, and is being reconsidered by the al Bahlul en banc panel next Monday.  Regardless of the resolution of that question, however, the important point for present purposes is that the 2010 Manual has abandoned the mistaken notion that international law itself prohibits “unprivileged belligerency.”

Although Ryan’s analysis begins from different premises, he agrees with almost all of the propositions above, with one exception.  The exception is Ryan’s suggestion that the combatant’s privilege does not protect state armed forces in a noninternational armed conflict.  If that’s his view, I don’t think it’s right—I’m fairly confident, for example, that both the U.S. and Afghanistan agree that their armed forces enjoy the privilege for their use of force in the noninternational conflict in Afghanistan.  But now is not the time or place to engage on that question, because even if we differ in that discrete respect, it’s really of no moment to the question presented, since we agree with one another on the two most important points, namely, (i) that U.S. civilian actors would not enjoy the combatant’s privilege in this (or any other) conflict, but (ii) that the absence of the privilege would not render their use of force unlawful as a matter of international law. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).