Yesterday, Ryan wrote about the killing, presumably by US drone, of Ibrahim al-Rubaysan, an alleged leading cleric of al-Qaeda in the Arabian Peninsula (AQAP). Ryan presumes that the US is indeed “at war” with AQAP, and therefore, that the law of armed conflict determines whether or not al-Rubaysan was properly targeted. That’s certainly the US position, most recently noted by the top Pentagon lawyer, Stephen Preston. (Others have written about Preston’s speech here, here, here and here on Just Security.)

Preston says we’re not at war with all terrorist organizations, but we are at war with AQAP. After Preston’s recent remarks, it is unclear whether the administration’s theory is that AQAP is the same organization, or instead, is an “associated force” of the al-Qaeda organization that was responsible for 9/11. In either case, the government position is that AQAP is covered by the 2001 congressional Authorization for the Use of Military Force (AUMF) directed at those responsible for the 9/11 attacks.

But the US argument is questionable in several respects. First, it’s a stretch to claim that AQAP and Osama Bin Laden’s al-Qaeda are one and the same. The two organizations are not always in total lockstep, with some prominent AQAP members signaling their support for the Islamic State. Second, as for the alternative claim that AQAP is an associated force of al-Qaeda, “associated forces” is not an established concept of the international law of armed conflict. Third, it is not at all clear that AQAP has “entered the fight alongside al-Qaeda and is a co-belligerent with al-Qaeda in hostilities against the United States,” the criteria the US uses to define an “associated force.” Fourth, congressional authorizations may be relevant to establish authority to wage war as between the legislative and executive branches, but they cannot satisfy international legal criteria for determining the existence of armed conflict. Those criteria are factual based on: 1) the existence of identifiable parties with a command structure, and 2) sufficiently frequent or severe hostilities to exceed the levels of violence normally relegated to domestic policing authorities operating under more stringent limitations of domestic and human rights law. There’s no doubt that the United States and AQAP are identifiable parties, but whether the level-of-hostilities-between-the-parties requirement is met is questionable. 

Assuming that the law of armed conflict, rather than international human rights law, is the applicable international legal framework, Ryan is absolutely correct that the touchstone for determining whether a cleric loses his or her immunity from attack is whether he or she is “directly participating in hostilities.” However, Ryan’s post may leave the mistaken impression that targeting a religious leader for “decisions on the basic engagement of their armed forces and groups, on specific methods to be used by their forces, or on specific operations and targets” are necessarily close questions. I think it’s more accurate to say that in some respects, such activities clearly do not amount to direct participation in hostilities, while in other respects, they do not clearly amount to direct participation in hostilities.

The frame Ryan refers to a single series of three questions put to a small group of anonymous experts in a brainstorming exercise in 1994. But the three questions are worse than useless for the purpose they purport to serve, namely to determine whether an individual may be extrajudicially executed. Let’s look at each one:

    1. “Decisions on the basic engagement of their armed forces and groups.” If this means exhorting the fighters that their cause is just and that god is on their side, it is absolutely not direct participation in hostilities. Otherwise, the exemption of clerics who are part of the armed forces from targeting would be meaningless. If it means the authority to give orders, or in fact, giving orders, to engage the enemy, then it is direct participation and the cleric loses his immunity from targeting.
    2. “Decisions on specific methods to be used by their forces.” If this means, for example, “do not use the Red Cross Emblem to mask your hostile intent because that would be a war crime” then it is obviously not direct participation. But even if it means “use the Red Cross Emblem to mask your hostile intent,” it is not a ground for targeting the cleric unless he is actually empowered to give, or does give, a military order. If he is so empowered, he is targetable not because of his suggestion of an illegal method of attack (for which he might be prosecutable) but simply because he is in the chain of command. Again, mere exhortation by someone outside the chain of command is not direct participation.
    3. “Decisions on specific operations and targets.” Same as #2. Whether he says to the troops “don’t destroy the mosque” or “you may destroy the mosque if there are enemy fighters inside,” if the cleric is merely giving legal/moral/religious advice on what is/is not targetable, that is not direct participation in hostilities. If, on the other hand he is empowered to order specific hostile operations and attacks on specific targets, then he is directly participating in hostilities and loses his immunity from attack.

The answers Ryan reflects on were simple, binary ones — yes or no — when we all know that if the respondents are indeed experts in their field, each answer has to reflect numerous assumptions not specified in the question, and numerous caveats to black or white answers. The views of at least some of the participants in the survey cited by Ryan are, in fact, infinitely more nuanced than what is reflected in the division of yes and no responses to the survey. (I only say “at least some” because I don’t know the views of them all.)

A more useful template against which to measure the targetability of civilians and other protected persons such as clerics serving with armed forces is found in the ICRC’s description of the difference between direct participation in hostilities (triggers targetability) and indirect participation (does not trigger targetability). It is also a relatively well-established tenet of the law of armed conflict that in case of doubt about their activities, a person is presumed to be a civilian rather than a combatant: protected from the effects of hostilities rather than a target.

Whether Ibrahim al-Rubaysan merited killing is a complex question involving consideration of several layers of international law, the most important being human rights law and the law of armed conflict. Even assuming the application of the law of armed conflict, I don’t know the answer to this ultimate question because like Ryan, I don’t know the facts. Therefore, I agree with Ryan’s conclusion that greater transparency is called for. But I can say with certainty that well-established legal rules exist, and though there is room for debate about how they apply, that debate occurs on significantly narrower turf than what is suggested by the overly simplistic answers attributed to a few people in response to hopelessly imprecise questions.

Editor’s note: This post has been updated to more accurately reflect the relationship between AQAP and core al-Qaeda.