As of March 1st, the US-led anti-Islamic State (IS) coalition had conducted a total of 10,715 strikes, including 7,159 in Iraq and 3,556 in Syria. Much concern has been expressed about the jus ad bellum (i.e., the right to resort to force) justifications for expanding military operations into Syria, which, contrary to Iraq, has not consented to the coalition’s intervention (though somehave asked whether Syria has tacitly consented, for example, through the terms of the recent cessation of hostilities agreement). At the same time, little attention has been paid to the legality of the airstrikes under the jus in bello (i.e., the rules on how force may be used during an armed conflict) — a notable exception being Beth Van Schaack’s excellent discussion on the legality of targeting IS oil tanker trucks here and here.
Coalition members regularly report on the targeting of IS training camps. Under the law of armed conflict (LOAC) — which regulates the non-international armed conflict (NIAC) between the coalition and IS in Iraq and Syria — military training camps are military objectives by nature. It is also logical to expect that these camps are populated by members of the armed forces of the enemy, who are legitimate targets. Thus, the targeting of individuals training in IS camps in Iraq and Syria does not generally raise any particular legal issue — provided the strikes comply with the principles of proportionality and taking necessary precautions.
Below, I address a specific type of recruits whose targetability deserves more legal scrutiny: those trained to mount terrorist attacks in Europe. Those individuals raise questions about how to determine who is a member of an armed group for targeting purposes, and strongly implicate questions about the ICRC’s notion of “continuous combat function” and its interpretation. Airstrikes against these individuals have been acknowledged by France (which has participated in the coalition since September 2014 and has conducted airstrikes in Syria since September 2015). Last October, the French Defense Minister said:
We launched strikes because we know that there are in Syria, and in particular around Raqqa, centers of foreign fighters whose mission is not to go fight for Daesh in the Levant, but to come to France, to Europe, in order to conduct attacks. (My translation.)
Though the comments are somewhat ambiguous and may indicate an attempt to provide a self-defense justification to fight IS as a whole, the statement can also be read as saying France has sufficient intelligence to distinguish between two types of fighters: those who are training for combat in Iraq or Syria and those who are recruited specifically to mount terrorist attacks in Europe. Even assuming the distinction is materially accurate, the reason for the insistence by the French Defense Ministry on attacking IS fighters posing a specific threat to France is unclear. (As a practical matter, the French bombing campaign has certainly not actually been limited to individuals training for plots against Europe.) Under the jus ad bellum (and accepting that Article 51 of the UN Charter authorizes France to use force against IS in Syrian territory), it seems overly restrictive — and hardly practicable — to restrict force to those IS fighters who pose a threat to France or its allies by virtue of their individual missions.
The jus in bello does not impose such a restriction: All members of IS armed forces are targetable, regardless of whether their mission is to attack France, Iraq, Syria, or elsewhere. What’s more, the targetability of individuals who are expected to deploy for attacks in Europe raises more legal challenges than targeting IS members training for operations in the Levant.
Who is a legitimate target in a NIAC?
To determine whether an airstrike is lawful under the LOAC, one must first assess whether the targeted objects and/or persons are military objectives. If they are, the attack must be proportionate (the expected civilian harm must not be excessive in relation to the concrete and direct military advantage anticipated) and all feasible precautions must be taken to minimize incidental civilian harm.
Contrary to international armed conflicts (those between states), NIAC treaty rules do not provide for clear-cut legal categories of “combatants” (targetable at all times) and “civilians” (targetable only and for such time as they directly participate in hostilities). However, it is now generally accepted that members of non-state armed forces participating in a NIAC should, like state armed forces, lose their protection from attack for the duration of their membership in those forces. What amounts to “membership” for the purpose of targeting is, however, a highly contentious issue. Following a five-year long expert process, the ICRC issued an Interpretive Guidance on the notion of direct participation in hostilities (DPH), which considers that members of organized armed groups lose their protection against direct attack if they assume a continuous combat function (CCF) in the group (i.e., individuals lose their protection when their continuous function is to take a direct part in hostilities).
The ICRC’s CCF standard has attracted much criticism for being too permissive (as it allows status-based as opposed to conduct-based targeting, as envisioned by the DPH rule), or too restrictive (by those who, like the US, claim that all members of an armed group are targetable, even those with a non-combat function). However, even those states who do not officially endorse the CCF notion, have sometimes embraced it in their targeting decisions. It is also fair to acknowledge that the wide range of critics — to which the author of the Guidance partially responded — is certainly the best evidence that the ICRC’s standard offers a balanced interpretation of the law, and the best starting point for discussion to date.
As to individuals who are not “members” of an armed force, they are protected from attack as civilians, except for the duration of an act of DPH. The ICRC Guidance provides a detailed interpretation of the constituent elements of such act and the duration of the loss of protections attached to it.
Information available to the French commander
Under the LOAC, commanders have an obligation to take all feasible measures to clarify the status of individuals located inside a targetable facility.
A loss of civilian protection may be identified visually (e.g., through conclusive behavior or, in the case of CCF, through wearing a uniform or other distinctive sign), or based on intelligence. Even if individuals in IS camps were wearing a distinctive sign, aerial attacks most likely do not allow for visual identification of such sign. Moreover, the French targeting files from the Chammal Operation are, as revealed by the Chief of the Defense Staff, mostly (if not exclusively) based on satellite imagery and reconnaissance flights. This type of intelligence does not provide individualized information that would indicate an individual has taken part in hostilities (and continues to do so) alongside IS that rises to the level of a CCF. As a consequence, and absent an indication to the contrary, it is safe to assume that the targeting decisions are being made based only on indications that individuals in the camps are receiving training to mount terrorist attacks abroad, as reported by the French Defense Ministry. Is this information sufficient to conclude that they assume a CCF, as defined in the ICRC’s Guidance?
Do they assume a CCF?
The targeting of IS training camps raises important questions about the constitutive elements of a CCF. Some of these questions are linked to the targeting of fresh recruits in general (regardless of where they will be deployed): When do new recruits lose protection from attack? Can an individual having never participated in actual combat assume a CCF? Other questions relate to the specific profile of individuals recruited to conduct terrorist attacks in Europe: Can terrorist attacks qualify as a combat function even far away from the combat zone? Does their “mission” have a sufficient nexus with the NIAC taking place in Iraq and Syria? And can a mission to conduct attacks at an unspecified future time amount to a continuous combat function — even for a single suicide mission?
If the foreign recruits arrive directly from their country of origin, it is unlikely that they have already participated in the hostilities. According to the ICRC, “[a]n individual recruited, trained and equipped … to continuously and directly participate in hostilities … can be considered to assume a [CCF] even before he or she first carries out a hostile act.” At the same time, the Guidance indicates that a CCF requires “lasting integration into an organized armed group.” In my view, the time element is irrelevant: like for state armed forces, an individual should lose protection from attack as soon as he/she is integrated within the group’s command structure and may contribute to its military potential, including from the first day of training.
So, can a function or mission to conduct terrorist attacks in Europe be considered a combat function? Terrorist attacks would undoubtedly qualify as (unlawful) participation in hostilities. In addition, the fact that the hostile acts will occur miles away from where the NIAC primarily takes place is in my view irrelevant. (Whether this necessarily means that the LOAC would be applicable to such attacks in Europe is a controversial, but distinct question.) Moreover, it is irrelevant whether the mission of the targeted individual(s) is to attack a member of the coalition (or its civilian population), or any other states. What is required is a combat function, not that the individual’s function is to fight the belligerent considering the attack.
The more complex question is whether these individuals assume a continuous combat function within IS. The first difficulty is that they are likely to participate in hostilities sporadically, or just one time in the case of a suicide mission. According to the ICRC’s Guidance, “a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation” does not qualify as a CCF. If IS-trained future terrorists are to be considered members of the group for the purpose of targeting, we would need to adopt a more flexible reading, whereby a mission to participate in a single operation would be sufficient for CCF.
The second difficulty is that after their training they will reintegrate into civilian life and are unlikely to carry out any hostile act in the immediate future (e.g., before reaching European soil, arranging the logistics of the attacks, etc.). Should this mean their function will not be continuous? Their case could resemble that of reservists who, after a period of basic training, reintegrate into civilian life; according to the ICRC “such ‘reservists’ are civilians until and for such time as they are called back to active duty.” The key element would thus be whether the trainees are integrated under IS command in the sense that when they will participate in hostilities, they will do so under IS’s orders. They would then be in “active duty” during their training as well as when implementing their mission (Whether they remain “active” members — and targetable — while deploying to Europe is a question of the geographical scope of the LOAC.) But even under this interpretation, an individual receiving general training on tactics of terrorism without a specific mission or without subsequent operational ties to IS once back in Europe, would likely not assume a CCF. Whether individuals in IS terrorist training camps assume a CCF would depend on whether they will subsequently execute a mission or whether they are only trained by IS but will then act as lone wolves. It is highly unlikely that the attacking country possesses such information, given the type of intelligence used for the airstrikes as highlighted above.
Are they civilians directly participating in hostilities?
If individuals in IS camps training to mount terrorist attacks in Europe are considered civilians rather than members of IS for the purpose of targeting, could they be targeted because they are directly participating in hostilities at the time of the airstrike by virtue of their training?
State practice indicates a restrictive interpretation of direct participation. According to the US, “direct part in hostilities” means “immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy.” And the definition in the UK Manual suggests a similarly narrow interpretation. According to the ICRC, the conditions for training to be considered part of an act of direct participation in hostilities are strict: “Only where persons are specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and, therefore, as direct participation in hostilities.” If “predetermined hostile act” means attack plans must be settled at the time of the training, it seems unlikely that the training delivered to IS foreign fighters would qualify. I submit that the degree of remoteness and uncertainty between the training of IS fighters and the potential attacks in Europe is generally too significant for the training alone to qualify as direct participation in hostilities.
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Individuals training in IS camps to conduct terrorist attacks in Europe raise a set of new legal issues related to the definition of membership to an armed group for the purpose of targeting. Under the current phrasing of ICRC’s Interpretive Guidance, they are unlikely to qualify as assuming a CCF. If they are civilians, their training would not amount to an act of DPH in my view. They would only be targetable as members of IS if we interpret the notion of CCF more broadly along the lines discussed above. However, even under this interpretation, an important question remains: Should their targetability as members of IS depend on whether the trainees are given a mission to conduct attacks (or maintain subsequent operational ties with IS), and on the commander possessing such information?
The above elements are meant to trigger further discussion on the definition of membership to an armed group and its application to individuals training in IS terror camps. Pending clarification, if the coalition forces are indeed able to distinguish between centers of “future terrorists” and centers of IS members already fighting or to be deployed to combat in the Levant, it would certainly be advisable to concentrate efforts on the latter.