Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community)

Reports that the White House is poised to revise a four-year old set of policy restrictions on drone strikes and other lethal operations has generated a heated debate that turns on a basic legal question. The existing policy restrictions—the May 2013 Presidential Policy Guidance (PPG)—were designed to place far greater constraints than what the laws of war require in the way of civilian protection and other matters. President Donald Trump’s potential replacement—the Principles, Standards, and Procedures (PSP)—removes some of those constraints, but arguably does not drop below the line imposed by the laws of war. That raises the basic question: is the law of war the proper baseline?

The PPG, and Trump’s PSP, apply only when the United States takes direct lethal action outside “areas of active hostilities” (which some refer to as outside “hot battlefields”). The laws of war are far more permissive than law enforcement and human rights rules with respect to a State’s use of lethal force. Why then would the laws of war apply to such far flung places as Somalia and Yemen that are geographically separated from Afghanistan where the area of active hostilities against Al-Qaeda actually exists? If the laws of war are not the proper baseline for territory that is outside areas of active hostilities, the human rights community has some grounds to call drone strikes in these zones patently illegal. That’s a radical proposition, and that’s part of the reason why it is wrong as a matter of law. Coming to terms with the reasons why the laws of war do apply outside areas of active hostilities, or at least the most persuasive case for why that is so, may help the human rights community better engage policymakers.I. Facts on the ground: the existence of armed conflict

As a threshold matter the heated debate over whether the laws of war should apply to locations outside areas of active hostilities may boil down to a misunderstanding. The United States’ position is that it is in an armed conflict (or perhaps multiple armed conflicts) with organized armed groups in the territories of relevant countries. It is not a diminution of that legal position but rather an additional policy overlay for President Obama to have designated some of the territories in which the armed conflict(s) are occurring to be outside “areas of active hostilities.” Indeed, that nomenclature is not a term of international law, and one can’t say that just because the president decided in his discretion to label the zone as such for policy reasons, the legal framework would switch from the laws of war completely over to human rights law. Along similar lines, I previously criticized Gabor Rona who contended that the United States inappropriately applied the laws of war to locations designated by the president as outside “areas of active hostilities.” I wrote:

“What is the basis for concluding that strikes were not undertaken against armed groups with which the U.S. and allied forces were in an armed conflict at the time? Indeed, the situations under review—e.g., Libya, Somalia, Yemen—reportedly include enemy fighters numbering in the thousands in each of those places, and repeated engagement of military forces. In some cases, the situation involved nothing short of civil war, and the United States may lawfully use force to assist foreign states battling an organized armed group in their territory as well as to target combatants who are directly involved in armed conflict against the United States.”

In December 2016, the U.S. government issued a “Transparency Report” which more clearly explained that even in such zones (locations outside areas of active hostilities) the U.S. participated in ongoing armed conflicts between the territorial State and an armed group and in ongoing armed conflicts between the United States and the armed group. For example, the Report states:

“As a matter of international law, airstrikes in Libya against ISIL are being conducted at the request and with the consent of the GNA in the context of the ongoing armed conflict against ISIL and in furtherance of U.S. national self-defense.”

It seems impossible to avoid the conclusion that Libya, for example, is in a civil war in which the law of armed conflict applies. It’s then hard to see how the international legal rules applicable to U.S. operations in countries such as Libya would be materially different than the legal rules that apply to U.S. operations in Iraq. Yet no one is criticizing the U.S. government for applying the laws of war in the latter situation. These cases are all the more indistinguishable when the U.S. is carrying out strikes in support of the host government’s operations as part of that nation’s conflict with the armed group. What’s more, leading human rights organizations are engaged in the noble effort to apply the laws of war in scrutinizing the conduct of parties to the armed conflicts in places like Libya, Somalia, and Yemen. Why then doesn’t the law of war apply to U.S. forces involved in those armed conflicts as well? Human rights advocates who think otherwise should at least acknowledge this alternative legal rationale that the administration provided most clearly in the Transparency Report, and explain why they don’t think the rationale works if that’s the conclusion they reach.

Given this understanding, Daphne Eviatar makes a mistake (like Rona) when she writes: “Obama’s policy guidance was drafted to address when the U.S. government could use lethal force outside an armed conflict, because it’s clear that in that situation, the more permissive laws of war do not apply.” The opposite is true at least for what the Obama policy guidance envisioned, which was to draft a set of policy constraints to address when the U.S. government could use lethal force in an armed conflict. The government was also clear that these were policy standards that exceeded the protections of the law of armed conflict.

II. The applicable legal framework

Is there a debate whether the laws of war apply to transnational armed conflicts between a State and organized armed group, including in other States where the level of violence on its own accord does not necessarily rise to the level of an armed conflict? Of course there is. Yet when Luke Hartig referenced the existence of that legal “debate,” Letta Tayler criticized him for it. And when Monica Hakimi described international law as “unsettled,” Eviatar replied, “Not really.”

It’s one thing to debate what the law is or should be. That’s what us lawyers do. It’s another to debate whether there’s even a debate. That’s a fact in the world.  And, in this case, it’s clear: Not only does a debate exist, if anything, international law is settling in favor of, and possibly even going further than, the U.S. position. That is, the trend has been toward recognition that once a State is engaged in an armed conflict with an organized armed group, the laws of war apply transnationally to that State’s military activity against that group in the territory of other States in important circumstances. I’ll explain at the end of this section why this legal understanding may extend even further than the current U.S. position.

First, in terms of current international legal understandings, the International Committee of the Red Cross (ICRC) took the position in 2011 that the laws of war apply to actions in the territory of “neighboring” and “adjacent” States. With respect to such “spillover” conflicts, the ICRC stated:

“[T]he relations between parties whose conflict has spilled over remain at a minimum governed by Common Article 3 and customary IHL. This position is based on the understanding that the spill over of a NIAC [non-international armed conflict] into adjacent territory cannot have the effect of absolving the parties of their IHL obligations simply because an international border has been crossed. The ensuing legal vacuum would deprive of protection both civilians possibly affected by the fighting, as well as persons who fall into enemy hands.”

In 2016, the ICRC issued a major set of Commentaries which expanded upon the view that such “spillover” conflicts include “neighboring or adjacent territory,” even if the armed violence in those territories do not meet the criteria of a non-international armed conflict (due to lack of intensity or a non-State actor’s lack of organization). The ICRC cited the practice of States (including in conflicts in Central America, northern and southern Africa, the Middle East, Southeast Asia, and South Asia), and invoked the Statute of the International Criminal Tribunal for Rwanda, which was approved by the UN Security Council. An article in the International Review of the Red Cross by ICRC Senior Legal Adviser Jelena Pejic elaborates that position with a detailed account of States supporting this view. The point is that, on this view, a non-international armed conflict is understood to extend into the territory of the other State, and the laws of war follow at least to the extent of the spill over. (The ICRC raises a finer point that it’s “not yet clear” in international legal understandings whether the laws of war would apply throughout the territory of the other State.) Finally, European states have also recently moved closer to the US view of transnational armed conflicts with organized armed groups in their own counter-terrorism operations (see Anthony Dworkin’s Just Security essay, “The New Western Counter-Terror Wars: Toward US-European Convergence?”).

Those developments align with the US position even if they were to stop short by concluding that such transnational armed conflicts—and the accompanying application of the laws of war—extend only to neighboring and adjacent States. Thus commentators who argue that the laws of war should not extend over the border of Afghanistan to any actions that might take place in Pakistan are challenging the ICRC’s position and widespread State practice.

Second, once it is understood that the laws of war extend transnationally to other States not involved in the conflict, it seems practically, if not also conceptually, unsustainable to draw the line around only immediately adjacent or neighboring States. What if the borders of the next State over are a further 10 miles away or separated by a body of water? What’s more, how can limiting the scope of the laws of war to immediately adjacent and neighboring States remain viable in the age of drone warfare or especially cyber conflict in which belligerents may attack from a continent away? (For a deeper dive into such challenges to the ICRC-Pejic limitation on spillover conflicts, I recommend a great article by Just Security’s Mike Schmitt.)

It is for this reason that I mentioned earlier that the ICRC position and international legal understanding may be even more expansive than the U.S. position. The position articulated by the United States extends the application of the laws of war to ongoing armed conflicts in which the government uses force in another States’ territory from which the organized armed group is at least planning, preparing, and launching attacks. The Justice Department’s Office of Legal Counsel’s so-called drones memo is notably limited in its analysis to such conditions. As I wrote in 2014, “the memo does not define the outer boundary, but it does suggest that the authorization to use lethal force may apply only in areas with a significant presence and staging ground for enemy forces and from where attacks against the United States are launched.”  And the real world examples where the US is currently using force, which I cited in response to Rona, meet those conditions and then some.

* * *

If indeed the law of armed conflict applies in locations outside designated “areas of active hostilities,” other targeting issues fall into place. Most important for present purposes, under the law of armed conflict there is no requirement that enemy fighters pose an imminent threat before they can be attacked. It follows that including an imminence requirement for lethal operations (Obama’s PPG) or excluding that condition (Trump’s potential PSP) is generally a policy choice, not a legal one as far as the laws of war are concerned. (For more on this topic, please read Steve Pomper and my earlier discussion at Just Security.) At that point, one enters a policy space in which principled experts like Hartig try to draw the most ethically and strategically sound lines. Suggesting that officials who engage in such principled policy analysis are very clearly, if not also deliberately, acting illegally will in many corridors be a conversation stopper. This is especially so when dealing with experts and decision-makers whose guiding principles include prevention and minimization of civilian casualties.

There’s a better way to engage the debate. And over that horizon include important legal discussions of U.S. responsibility for wrongdoing by foreign partners, greater transparency (including further clarification of the U.S. definitions of targetable members of enemy groups), standards of evidence required before using lethal force, and implications of the co-application of human rights law in armed conflict (for example, when capture is feasible). Many of those discussions won’t proceed well if the premise for one side entering the conversation is that the other has unequivocally and without any reasonable legal basis acted unlawfully, if not criminally, in approving lethal force. I hope the above analysis may resolve any misunderstandings and show the legal support for the U.S. position as a way to move toward a more constructive dialogue.

[Addendum: Based on reader feedback, I want to correct a misimpression that may be created by my essay, and for which I accept responsibility for any lack of clarity. I do not mean to describe the human rights community writ large or human rights organizations across the board. Members of the human rights community and different human rights organizations naturally take diverse positions on these issues, some more closely aligned or overlapping with my own views, and others not. Many members of the community also subscribe to legal positions very different from the U.S. government’s position on the application of the laws of war but they recognize well the reasonableness of the other side’s perspective. If anything, my essay aims to encourage more of that engagement on this particular set of issues for those who are not there yet. The “Memo” is certainly addressed to all members of the community in which we play a part and are in conversation in that broader sense, and I tried to hone my concerns by identifying (specific) instances in which (specific) individuals made (specific) claims about the scope of the application of the laws of war.] 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.