Moves toward greater transparency on the use of lethal force [UPDATED]

Unless I’m overlooking something, this weekend’s strike directed at Taliban leader Mullah Akhtar Muhammad Mansur, in the province of Baluchistan, was only the second time that the United States has publicly acknowledged a particular use of force in Pakistan — the first occasion being the operation against Osama bin Laden. (The U.S. also acknowledged the strike that killed hostages Warren Weinstein and Giovanni Lo Porto in January 2015, but did not acknowledge that it occurred in Pakistan.) Pentagon press secretary Peter Cook issued a statement (the link to which unfortunately appears to be broken) in which he called Mansur “a threat to Afghan civilians and security forces, our personnel and coalition partners,” because he was “actively involved with planning attacks against facilities in Kabul and across Afghanistan.” [UPDATE: In his press conference in Vietnam yesterday, the President added that Mansur “is an individual who, as head of the Taliban, was specifically targeting U.S. personnel and troops inside of Afghanistan who were there as part of the mission that I’ve set to be able to maintain a counterterrorism platform and provide assistance and training to the Afghan military forces there.”]

Besides the public acknowledgement, it is also noteworthy that this strike was undertaken by the Department of Defense (which might have much to do with the acknowledgement); was reportedly the first U.S. strike to occur in Baluchistan; and, according to “a senior American official, who spoke [to the New York Times] on the condition of anonymity,” it was done without Pakistani consent. In the latter respect, it joins the bin Laden operation and the current operations against ISIL in Syria as the only publicly confirmed cases in which the Obama Administration has used force without the consent of the host state. Like those other two cases, it thus raises the legal question of why the strike did not violate Article 2(4) of the United Nations Charter. (There is little question of domestic law authority, which the 2001 AUMF undoubtedly provided.) [UPDATE: Pakistan’s Special Assistant to the Prime Minister on Foreign Affairs, Syed Tariq Fatemi, summoned U.S. Ambassador David Hale on Monday “to express concern over the drone strike on Pakistani territory on Saturday, 21 May 2016.” In the meeting, Fatemi “pointed out that the drone strike was a violation of Pakistan’s sovereignty and a breach of the United Nation’s Charter that guarantees the inviolability of the territorial integrity of its member states.”]

Press Secretary Cook’s statement [and President Obama’s subsequent statement that Mansur was was “specifically targeting U.S. personnel and troops inside of Afghanistan”] suggests that the strike was deemed an exercise of the “inherent right of individual or collective self-defence” against “armed attack[s]” by the Taliban, which Article 51 of the Charter preserves. If so, the intrusion upon Pakistani sovereignty would only be lawful if it satisfied the principle of necessity, which would require, at a minimum, a determination that killing Mansur was likely to degrade or deter the Taliban’s efforts to make such armed attacks — suggested by the DoD statement that Mansur was “actively involved with planning attacks against facilities in Kabul and across Afghanistan” [and by the President’s statement] — and a determination that Pakistan was unable and/or unwilling to interdict the threat of such attacks posed by Mansur. As far as I know, DoD has not yet spoken to the “unwilling/unable” question in this case. [UPDATE:  The New York Times now reports that “[t]he United States told Pakistani authorities several weeks ago that Mullah Mansour was a target,” and “the Pakistanis provided general information on his location and activities, [although] they did not provide specific details on his movements.”]

Meanwhile, Karen DeYoung of the Washington Post reports that the Administration is preparing to publish an account “of how many militants and noncombatant civilians it has killed since 2009” in counterterrorism operations outside of “areas of active hostilities,” including (according to DeYoung) in Yemen, Somalia and Libya. The “pending announcement” will also reportedly “be accompanied by additional information” regarding the Presidential Policy Guidance (PPG) that the President issued in May 2013 on “Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” (The White House has already released a summary of the PPG; but apparently the new announcement will be more detailed.) DeYoung further reports a DoD spokesperson as representing that “[w]hile not all strikes are announced or publicly acknowledged in real time, information on all of our [DoD] strikes taken outside areas of active hostilities will be aggregated for release in future annual releases.”

Unfortunately, DeYoung leaves a misimpression about the areas, such as Yemen, Somalia, and Libya, that are covered by the PPG. She writes that these are places where the United States conducts airstrikes but does not consider itself officially at war, in contrast with nations such as Iraq and Syria, which “have been added to the list of designated war zones,” and “where the military and the international laws of war impose somewhat different rules.”

That’s not correct. The U.S.’s use of force against, e.g., al Qaeda, AQAP, the Taliban, and ISIL, is virtually all undertaken as part of a “war,” or, more precisely (and to use the modern, Charter-based terminology), an armed conflict; and the same international laws of war apply to the conduct of those armed conflict in all such areas. The distinction between “areas of active hostilities” and other areas is entirely a case of internal Executive branch nomenclature, for the (primary) purpose of identifying those nations in which the PPG applies — and where it does not. That is to say, President Obama has insisted upon standards in areas outside “areas of active hostilities” that are more restrictive than those imposed by the laws of war; but the latter set of laws apply to all aspects of the U.S.’s armed conflicts, without regard to whether they take place in a nation in which hostilities are in some sense “active.” As far as international law is concerned, there are not a “different set of rules.” 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).