William C. Bradford’s article Trahison des Professeurs: The Critical Law of Armed Conflict Academy as an Islamic Fifth Column, published last summer in George Mason Law School’s National Security Law Journal, drew widespread criticism from the international law community. According to Bradford, recent hostilities involving militant Islamic groups such as ISIL are the latest phase in a centuries-old struggle by Islamic extremists to eradicate the West as an evil civilization that “blocks a recreated Caliphate and resists God’s laws.” Within this armed conflict, a small group of American legal scholars have, Bradford posits, made themselves lethally targetable through their support of Islamic extremists groups. Although the early responses to Bradford’s article have unanimously derided this suggestion, few have set forth a classic legal analysis of his positions. Now that some time has elapsed since his article was published, I will ignore Bradford’s outlandish politicized rhetoric, and offer a rebuttal based in the law of armed conflict (LOAC).
Bradford traverses a series of tenuous steps to reach his conclusion that these legal scholars are “combatants who, like all other combatants, can be targeted at any time and place.” He begins by asserting that Islamic extremist groups rely on psychological operations (PSYOPs) across all domains — political, economic, cultural, moral, and legal — as their primary method of combat against state actors. However, according to Bradford, they lack the capability of conducting these operations on their own. He contends that 40 or so American LOAC experts with influence in the formation of US policy and public opinion have stepped in to supply the groups this capability. These scholars advocate political and ideological positions that are often critical of Western actions (and legal positions) against Islamic extremist groups. Their efforts therefore constitute PSYOPs, so the argument goes, that effectively hamper American military operations and undermine political will. For Bradford, they have “mustered into the Islamic order of battle as a Fifth Column to direct its combat power against American military power and American political will”; the supposedly resulting combatant status thereby renders them targetable at any time and place, as well as subject to capture and detention until the end of hostilities. Further, Bradford argues that they are “unlawful” combatants because they fail to satisfy the requirements of Article 4A of the Third Geneva Convention and, thus, forfeit protections that prisoners of war enjoy. As his charge that these legal scholars are lethally targetable alone holds significant flaws, I will leave the issues of capture, detention, and “unlawfulness” for another time.
In claiming that these legal scholars are “combatants,” Bradford mistakenly applies an international armed conflict (IAC) LOAC notion to hostilities that are non-international in character. Near universal agreement exists (see here and here) that the combat actions in which the US, its allies and partners remain engaged against Islamic extremists qualify as non-international armed conflicts (NIAC). There are technically no “combatants” as such in a NIAC. Properly understood, only four categories of individuals exist within such a conflict: armed forces of a party to the conflict, including dissident armed forces; other organized armed groups (OAGs); civilians directly participating in hostilities (DPH); and civilians who are not so participating.
Of the five, only OAGs and directly participating civilians are relevant to Bradford’s conclusions as to the targetability of his group of scholars. The Interpretative Guidance on the Notion of Direct Participation in Hostilities sets forth the ICRC’s qualifying criteria for these two categories, as well as the scope of targetability that attends them. Bradford scoffs at its publication as one of myriad actions the offending legal scholars have taken in support of Islamic extremism, claiming that the Guidance’s interpretation of who falls into the categories, and when they are targetable, unduly handcuffs States. However, the majority of States and scholars accept many aspects of the Guidance. Even where differing positions exist, none would lead to agreement with Bradford’s preposterous suggestion regarding targetability. Allow me to explain.
Had Bradford utilized the correct categorization of individuals in NIAC, it is unclear whether he would deem these legal scholars to be members of an OAG or civilians DPH. First, consider the possibility that they are members of an OAG. According to the ICRC Guidance, “[OAGs] constitute the armed forces of a non-State party to the conflict.” A person qualifies as a member of a group when he or she “assumes a continuous function for the group involving his or her direct participation in hostilities.” The Guidance labels this as a “continuous combat function” (CCF). CCF requires “lasting integration” into the group as distinct from filling an only “spontaneous, sporadic, or temporary role” (which would simply qualify as DPH). “Combat function” generally involves execution of tactical or operational level hostilities. The Guidance offers as examples preparing, executing, or commanding acts or operations. CCF does not, however, include accompanying or supporting the OAG in non-military ways such as serving as a cook. Nor does CCF include, for the ICRC, those merely supporting the general war effort such as recruiters, trainers, financiers, and propagandists. Bradford clearly has a much broader interpretation of combat when he states that Islamic extremists recognize these legal scholars as “wielders of combat power.” Scholarly critique of US efforts against Islamic extremists may admittedly undermine public support of the war effort to some degree; however, the acts of the legal scholars are so far removed from hostilities that they undoubtedly fall outside the Guidance’s parameters of CCF.
Some States and scholars reject the CCF criterion as too narrow and argue that membership in an OAG should be no different than membership in a State’s armed forces. For them, fulfilling a combat function is but one of many factors that may be considered when determining membership. The key criterion is whether the individual falls within a command structure responsible for the conduct of its subordinates. If so, he or she is a member of the OAG regardless of role or function, and thus targetable. Bradford argues that Islamic extremists recognize these legal scholars as a “source of combat power that must be infiltrated and co-opted” and, thus he seems to impliedly suggest they are somehow assimilated into the adversary’s command structure. However, nowhere does he provide any example of how such integration has occurred. Consequently, even by the broader view of OAG membership, Bradford’s legal scholars still fail to qualify as targetable members.
The second category of individuals within which these scholars might fall is civilians who are directly participating in hostilities. Such civilians lose their protections from attack for such time as they engage in said hostilities. The Guidance sets forth three criteria for determining whether an act, such as publishing allegedly condemnatory scholarship, constitutes direct participation in hostilities. First, the act in question must adversely affect the military operations or capacity of a party to the conflict. Most experts consider direct participation in hostilities as only occurring at the tactical or perhaps the operational level. Classic examples include acts of sabotage to disrupt deployment, logistics, or communications; the guarding of captured military personnel, objects, or territory; removal of mines emplaced by the adversary; and electronic interference with military computer networks. Yet, Bradford offers the following as examples of legal scholars’ acts and resulting harm: promotion of the requirement that the US unilaterally adhere to much more rigorous LOAC standards, thereby effectively restricting US military operations; distortion of the LOAC principles of distinction and proportionality in favor of the Islamic extremist side; and effectively spoiling US interrogation and intelligence gathering efforts by gross exaggeration and miscategorization of US techniques as “torture.” Although these acts may somehow influence US policy in ways that remotely restrict the means available to combat Islamic extremists, the legal scholars are entirely removed from contributing to any harm on the battlefield.
Notwithstanding that the scholars’ actions fall short of causing the requisite degree of harm, their actions additionally fail to satisfy the second criterion, causation — that there exists a causal link between the act and the resulting harm. The Guidance cites tactical or (perhaps) operational level activities that harm the enemy in a direct and discernable manner. Such a link does not exist in any of Bradford’s examples. At most, decision makers consider the arguments of these legal scholars in developing policy. Such influence is at best indirect in nature. It in no way affects any particular operation or engagement such that the causation criterion is satisfied. Bradford offers up no such analysis.
The third and final criterion of DPH is the requirement of a belligerent nexus. According to the ICRC Guidance, the act must be “specifically designed to [inflict the harm] in support of a party to an armed conflict and to the detriment of another.” Belligerent nexus is to be distinguished from subjective intent. It requires an objective analysis of the design of the act rather than the mindset of the participating individual. Nowhere in Bradford’s article, in which he offers nearly two dozen explanations for these scholars’ activities, does he suggest any design of supporting Islamic extremism or militarily disadvantaging the Western side.
Simply put, as a matter of law, Bradford’s analysis is devoid of any basis for rendering the scholars targetable based on their discussion of the nation’s engagement in armed conflict. In particular, none of their discourse takes place at, or directly impacts, the tactical or operational levels of the armed conflict. They are neither members of an OAG (by any interpretation), nor are they directly participating in the hostilities as a matter of law. The so-called “professeurs de trahison” can rest soundly at night knowing they lawfully cannot be lethal targeted under the LOAC.
The views expressed in this post are those of the author in his personal capacity.