Rita Siemion and Heather Brandon of Human Rights First have published a comprehensive post on some of the more important aspects of Brian Egan’s speech to ASIL. (My own rundown of the major points in the speech is here.) In that post, they ask a good question regarding the United States’s application of the international law principle of distinction, which permits the targeting, in an armed conflict, only of combatants and of civilians while they are directly participating in hostilities. The United States has offered a straightforward answer to that question with respect to al Qaeda; but the issue might be considerably more complicated as applied to ISIL.
Siemion and Brandon point to a particular sentence in the Egan speech, where he explained that in determining whether a person is a member of “organized armed group” (which would mean that the person may be targeted, and counted as a combatant for purposes of assessing proportionality, based upon such status), the United States “may examine the extent to which the individual performs functions for the benefit of the group that are analogous to those traditionally performed by members of State militaries that are liable to attack; is carrying out or giving orders to others within the group to perform such functions; or has undertaken certain acts that reliably indicate meaningful integration into the group.” Siemion and Brandon argue that consideration of the third factor — “undertak[ing] certain acts that reliably indicate meaningful integration into the group” — is troubling, because “mere membership in an organization is not a lawful basis for targeting,” and, in particular, “members who serve other functions in the group,” besides combat functions, “may not be directly targeted.”
The United States has addressed this argument in the past, as applied to al Qaeda, by arguing that al Qaeda is an organized armed group, a military organization, through and through, with no “civilian” wing, and that therefore membership in al Qaeda is analogous to being an enlistee in the U.S. armed forces, making one targetable on that ground alone (except when such persons are hors de combat or entitled to special protection due to their particular function). Judge Bates offered some support for this argument in his 2009 Hamlily decision, where he wrote the following:
The clear implication of Part IV [of the Second Protocol to the Geneva Conventions] is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population”–i.e., members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. See ICTY Trial Chamber, Prosecutor v. Galića, Case No. IT-98-29-T, ¶ 47 (Dec. 5, 2003) (“For the purpose of the protection of victims of armed conflict, the term ‘civilian’ is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict.”); ICTY Trial Chamber, Prosecutor v. Blaskic, Case No. IT-95-14-T, ¶ 180 (Mar. 3, 2000) (“Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces.”).
In its Brief in Opposition to certiorari in the al-Bihani case, the government adopted this reasoning from the Bates Hamlily opinion, and added the following about al Qaeda, in response to the petitioner’s argument that he was at most a civilian member of that organization:
Petitioner’s argument is . . . factually flawed because he offers no evidence to support his implicit premise that there is a group of individuals properly deemed “civilian” members of al-Qaida. Unlike a sovereign nation with a civilian population, al-Qaida is a terrorist organization engaged in an armed conflict with the United States, and it has no “non-military” wing.
Of course, that characterization about al Qaeda might or might not be correct as an empirical matter. (I’ve never seen any account to the contrary, including in habeas briefs of GTMO detainees; but I’m hardly an expert on the question.) The important point for present purposes, however, is that it is the longstanding view of the U.S. government, which therefore has not had to evaluate when, if ever, any “civilian” members of al Qaeda may be targeted. The government insists that there are no such persons.
ISIL, however, potentially presents a much different situation. Unlike al Qaeda — but like, say, Hamas in Gaza — ISIL effectively controls and governs substantial swaths of territory. Presumably, therefore, the “membership” of ISIL includes some officials who have purely civilian, governance functions, and are not subject to direction to perform military functions. If there are such civilian ISIL members, the U.S. could not target them unless and until they directly participate in hostilities. (The ISIL situation, in other words, might be more analogous to U.S. targeting of the Taliban in 2001, when it still governed Afghanistan. Likewise, in its 2014 conflict against Hamas in Gaza, Israel considered certain components of Hamas, but not others, as organized armed groups subject to targeting (see paragraphs 264-267 of this Report.)
It thus appears the United States might be facing a new challenge when it comes to applying the principle of distinction within ISIL — a challenge it has not had to confront in its operations against al Qaeda. Again, I am not knowledgeable on the factual questions about ISIL’s organization, structure and membership. My point is simply that the government must contend with those questions for purposes of the jus in bello with respect to ISIL. Siemion and Brandon are right that Brian Egan did not address this emerging possible issue in his speech. It is something worthy of further attention and, ideally, further elaboration by the government.