The Obama administration has long maintained that the United States is an armed conflict with Al Qaeda “and associated forces”—and that members of the latter can accordingly be detained and targeted during the course of hostilities. The United Nations released two reports this week—by the UN expert on extrajudicial killings (the Heyns report) and by the UN expert on human rights and counterterrorism (the Emmerson report)—both of which call the US position into question.
In this post, I suggest that an independent and overlooked legal basis exists for the US position that it’s in an armed conflict with “associated forces” (part B). And I argue that rejecting this alternative legal basis—which one of the UN reports does directly (part C)—may have perverse and unintended consequences for human rights and humanitarian protections (part D).
A. What is at stake for the US position?
The legal position of the Obama Administration is based on an analogy drawn from co-belligerency in wars between states. If “State A” attacked the United States and “State B” later allied with State A as a co-belligerent, the United States would be at war with both of them and it would be lawful for the US to use force accordingly. Specifically, the United States could target and detain members of State B’s armed forces. In litigation involving Guantanamo detainees, the Justice Department has made this analogy explicit: “the United States has authority to detain individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency.” And the Administration has explicitly predicated its targeting practices on the theory of co-belligerency.
Both UN reports challenge the application of the concept of co-belligerency to non-international armed conflicts, such as any conflict between the United States and al-Qaeda.
If the US theory of co-belligerency is invalid, it would seem that President Obama has no congressional authority to conduct drone strikes against al-Qaeda in the Arabian Peninsula (AQAP) in Yemen, and, under international law, the US presumably would not be able to detain or target members of al-Shabaab in Somalia even if that organization formed a direct alliance with al-Qaeda.
B. The missing legal justification
A different legal justification—having nothing to do with co-belligerency or the laws of interstate relations and neutrality–provides for the detention and targeting of members of associated forces. The UN drones reports are not especially at fault for overlooking this alternative legal basis. Other commentators and experts have done so as well.
Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”
In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention. The key question becomes: What is meant by “belonging to” a party to the conflict? The answer: Less than you might think. According to the ICRC Commentaries to the Geneva Conventions, it may involve fighting on “behalf of” the party which can be demonstrated by a “‘de facto’ relationship” that “may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting.” It is also clear from the wording of Article 4 of the POW Convention and the ICRC Commentaries that these groups are not military organizations “forming part of” the armed forces of a party to a conflict (Article 4(a)(1)), but are instead “independent” (“the delegates to the 1949 Conference reverted … to the principle … which made a distinction between militias and volunteer corps forming part of the army and those which are independent” — ICRC Commentaries).
Of course these rules would also have to apply by analogy, or by custom, to non-international armed conflicts. But that is not as much of a stretch as rules that were developed to deal with particular relationships between states and neutrality in international wars. Indeed, the category of “belonging to” a party is derived from relationships that include nonstate actors. And the 2009 ICRC Interpretive Guidance on Direct Participation in Hostilities (which discusses the test for “belonging to” at length) is also replete with references to the same terminology — of organized armed groups “belonging to a party” — in the context of purely noninternational conflicts (e.g., “Members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members….”).
C. The Heyns Report
The Heyns Report delves most deeply into the analysis of associated forces. Without discussing the above legal justification, the Report essentially asserts the opposite proposition in the course of its analysis. That is, the report suggests that only military groups forming part of the party to the conflict are targetable (and says nothing about military groups “belonging to” the party). The report states:
62. The established legal position is that, where the individuals targeted are not part of the same command and control structures as the organized armed group or are not part of a single military hierarchical structure, they ought not to be regarded as part of the same group, even if there are close ties between the groups.
63. Violence by various organized armed groups against the same State can amount to separate non-international armed conflicts, but only where the intensity of violence between each group and the State individually crosses the intensity threshold. Isolated drone strikes alone are unlikely to meet this threshold of violence intensity.
The Report thus suggests (in para. 62) that the “established legal position” is that individuals can be targeted only as part of the command and control structure within a single organized armed group. And that proposition provides for the conclusion (in para. 63) that the US relationship with each nonstate actor (e.g., AQAP) must independently satisfy the criteria for a separate armed conflict.
The only authority the Report cites for “the established position”—a trial chamber opinion of the International Criminal Tribunal for the Former Yugoslavia—provides questionable support. Indeed, reliance on that opinion is arguably a category mistake. The section of the opinion which the Report cites deals with the criteria for the existence of a non-international armed conflict. That is, the trial chamber is addressing what level of violence constitutes an armed conflict, and what type of organization is necessary for a nonstate actor to be a party to an armed conflict. The opinion is not addressing the issue of targeting. And the opinion is not addressing potential relationships between different organized armed groups. It is intriguing whether one could extrapolate, from the required organizational structure of a party to a noninternational armed conflict, principles concerning relationships between armed groups and legitimate targets. But significant analytic heavy lifting would have to go into making that case, and until it is made directly, such an extrapolation does not constitute an “established position.” As it stands, the requisite organizational structure of “a party” begs the question of what relationships other armed groups might have to that principal party which would bring those groups into the armed conflict.
D. Unintended consequences for human rights and humanitarianism
Denying or narrowly construing the legal category of associated forces (paras. 62-63) can have unintended and perverse implications for other humanitarian values served by the law of armed conflict.
First, let’s consider the POW protections for members of associated forces in past and future conflicts. Recall that the definition for “belonging to” a party was set forth in the POW Convention. Indeed, its modest requirements were designed in part to ensure that members of resistance movements—such as the French resistance to the Nazis—would receive humane treatment upon capture. Raising the threshold for what it means to “belong to” a party to a conflict could negate such protections. By way of example, one of the Bush Administration’s internal memos attempted this familiar rhetorical move in trying to deny protections to al-Qaeda. Not satisfied with other (far simpler) ways to deny al-Qaeda members POW status, a March 22, 2002 memo by the State Department’s Legal Advisor William Howard Taft asserted that al-Qaeda could not receive POW protections because the belonging to test imposed a high threshold. The important point is that legal positions that might constrain the US “associated forces” rationale (e.g., against AQAP) may have long-term and unintended consequences for the protective elements of the law of armed conflict in other situations.
Second, consider the implications for the current use of force in Yemen and elsewhere. Followed to its logical conclusion, the Heyns Report (para. 63) (and perhaps Emmeron’s as well (para. 67)) would deem US drone strikes against AQAP in Yemen to fall outside of armed conflict. In my first post for Just Security, I warned of a future in which the US Government rids itself of the restrictions of the Geneva Conventions (jus in bello) by arguing that “there is no longer an armed conflict in different areas or with different groups” and instead relies on the law of self-defense. That day would be upon us if the Heyns Report were correct. US drone strikes in Yemen would, on the vision set forth by the Report, not be subject to jus in bello, and no matter how errant could never be considered war crimes. It may be far better for human rights groups to rely upon the Geneva Conventions than hope that the US military and CIA will ever bend to human rights principles applied extraterritorially in matters of self-defense in which US airborne forces arguably do not even have effective control.