[For Just Security’s other coverage of yesterday’s Amnesty International and Human Rights Watch reports on targeted killings, see Sarah Knuckey’s guide to the content of each report, and the exchange between Naureen Shah and Chris Jenks.]

Tuesday’s release of a major report by Human Rights Watch (HRW) on US targeted killing practices in Yemen raises several important concerns (see Sarah Knuckey’s guide to the report). One of the paramount legal issues involves the power of the US and Yemeni forces to apprehend rather than kill targeted individuals. In response to the report, White House Spokesman Jay Carney stated, “the United States does not take lethal strikes when we or our partners have the ability to capture individual terrorists.” Carney did not specify whether that decision is due to US policy or legal requirements–nor do we know sufficiently what the administration means when it says capture is not “feasible.”

The HRW report and the statement by Carney raise an important legal question. What are US legal obligations when it is militarily entirely feasible for the territorial state (Yemen) to capture an individual, but not for the United States to do so (i.e., if Yemen won’t allow US boots on the ground)? What does international law require?

I do not intend to answer the international legal question here, but a few observations are worth making.

I. The alleged facts

Before delving into the legal details, it is important to understand the alleged incidents. A remarkable feature of the HRW report is the repetition of cases in which Yemeni authorities allegedly had ample opportunity to perfect an arrest. Instead the individuals were targeted and killed by US airstrikes. Consider the following excerpts from HRW’s report:

Hamid al-Radmi

“’He was in my office all the time and I could even have gone to his house to arrest him,’ said one ranking security officer in Wessab who knew al-Radmi. … A second local security official echoed those comments.”

“So open were al-Radmi’s movements that on the day he was attacked he had attended a qat chew with Mojahed al-Mosanif, the secretary-general of the Wessab government council ….”

Rabee Hamoud Lahib

“Lahib lived in a village an hour’s drive from the capital and traveled every other day to Sanaa, passing military checkpoints en route. It is not clear why Yemeni forces did not capture him at a checkpoint on his frequent trips into Sanaa.”

Adnan al-Qadhi

“a lieutenant colonel in an elite Yemeni military unit”

“By all accounts, al-Qadhi moved freely within elite political and military circles even as he retained ties with AQAP.”

“‘The concentration of police and military personnel in Sanhan [the town that includes Beit al-Ahmar] is one of the highest in the country,’” said Abdulghani al-Iryani, a Yemeni political analyst. “‘To say that the government could not reach that place and make a capture there is absurd.’”

“Al-Qadhi moved freely in Beit al-Ahmar and surrounding areas. He was in Sanaa as recently as four or five days before he was killed and had to pass several checkpoints to get from the capital to Beit Al-Ahmar, relatives said. The fact that al-Qadhi was on the military payroll gave the authorities any number of potential ruses to lure him in.”

Muhammad al-Kazami

“al-Kazami traveled freely through the area upon his release from prison, suggesting ample opportunities for capture. Indeed, residents said his movements required him to pass multiple checkpoints at which security forces could have detained him.”

The report also includes additional statements which place some qualifications on the above cases. For example, with respect to al-Radmi and al-Qadhi:

A Yemeni government official … denied that al-Radmi could readily have been captured. Speaking of both al-Radmi and Adnan al-Qadhi … the official said that in cases where the government has moved in armed forces to rout AQAP, they often are defeated: “They [al-Radmi and al-Qadhi] had strong tribal ties and the government is in no position to capture them or physically hold them for a while. The state is too weak right now. So what do you do? The easiest option is, you take them out. Because they are actively recruiting.”

And, the report references a news story which stated that Yemeni officials said President Hadi approved the strike against al-Qadhi after determining that trying to arrest him in his neighborhood could have resulted in more deaths. The report also proceeds to question the strength and accuracy of that justification in al-Qadhi’s case (p. 49).

II. International law

As mentioned at the outset, I do not intend to answer the international legal question in this post. But here are a few observations.

First, the legal question does not necessarily boil down to whether there is a “duty to capture” in the law of armed conflict (LOAC). As an independent ground, some of the individuals in the HRW report might be considered hors de combat (the equivalent of soldiers who lay down their arms and thus cannot be killed). Consider, for example, Just Security Guest Author Michael Schmitt’s recent essay in the European Journal of International Law, which concludes that LOAC “extends hors de combat status to enemy fighters who have been effectively captured.” Schmitt writes:

The central question is accordingly when has an individual been “captured”? It is here that I find common ground with Professor Goodman. I do not accept the premise that defencelessness alone shields enemy forces or civilian direct participants from attack. But capture (and detention) does not necessarily require taking the fighters into “custody”. … The crucial question is whether an individual is unambiguously in the captors’ control, such that he poses no risk to the captors or civilians (e.g., a risk of suicide bombing) and taking custody would be operationally feasible in the attendant circumstances. In other words, the hors de combat rule prohibits an attack that is nothing but an execution because the individual concerned has already been captured.

In the Yemen cases, one important question then is whether routinely passing through government checkpoints and being alone inside government buildings might constitute a form of “effective capture,” a status that is materially shy of being in the enemy’s actual detention and custody.

Second, consider LOAC’s “release on the spot” rule which addresses a dilemma of having to let go an enemy fighter despite, practically speaking, having him in the crosshairs. As I have written elsewhere, under LOAC, “if a military unit comes upon enemy combatants in the field whom the unit can capture but is unable to detain, the unit cannot kill these adversaries but must release them.” For example, if a unit (let’s imagine a multinational force) captures a fighter and renders him hors de combat but has no capacity to detain him, the individual must be set free and not killed on his way out. Are the Yemeni cases analogous or too different in character?

Third, if the Yemeni government’s alleged actions — facilitating the killing of these individuals rather than apprehending them — violate its international obligations, what does that mean for the United States? The US government’s relationship to Yemen in these operations—either as a co-belligerent of Yemen in its civil war or otherwise—might render the United States indirectly responsible for the international law violations that Yemen commits. Article 16 of the Articles of State Responsibility provides: “A State [the US, here] which aids or assists another State [Yemen] in the commission of an internationally wrongful act by the latter is internationally responsible for doing so…”).