I write to respond to Ryan Goodman’s recent post, “Why the Laws of War Apply to Drone Strikes Outside ‘Areas of Active Hostilities,’” and to remind readers where this thread began back in February, since it has not been mentioned so far. This context is critical to understanding why U.S. legal interpretations, policy and practice on killing are so deadly wrong.
In February of this year, the U.S. Director of National Intelligence (DNI) issued a report asserting that in all of 2016, the U.S. undertook 53 strikes against terrorist targets outside areas of active hostilities, resulting in 431 to 441 combatant deaths, and one – yes, that’s right, only one – “non-combatant” death. In a Feb. 7 piece I wrote for Just Security, I took issue with several assertions and legal assumptions inherent in the DNI report. Ryan countered back then, and repeated his criticism of my views last week, this time, in connection with reports that the Trump administration is set to scale back the targeting restrictions enacted during the Obama administration.
While I stand by my February assertions, I want to point out that the focus of this newer line of questioning (can the laws of armed conflict apply outside areas of active hostilities?) does not settle the matter of whether or not the DNI report is credible. Nor does it settle the broader question of whether or not the laws of armed conflict do in fact apply to any particular U.S. attack “outside areas of active hostilities (as distinct from whether those laws could, theoretically apply in such areas). Nor does it settle the question of whether U.S. targeting practices under the previous or present administration comply with all of the international law of armed conflict that binds all states. For example, and as others have noted, even if the laws of armed conflict can apply outside areas of active hostilities, there are several other equally important restrictions to targeting authority under those laws:
1) whether, as a matter of fact, there continues to be an armed conflict related to the killing and if so, whether the US is a party to that armed conflict;
2) if so, whether the particular targeted individual is a member of enemy armed forces;
3) or if not, is he or she targetable under a theory of membership in so-called “associated forces,” a standard applied by the U.S., but for which support under the laws of armed conflict is shaky, at best?
3) if not a member of enemy armed forces or targetable associated forces, is he or she being targeted while “directly participating in hostilities?”
4) or, as some, including the International Committee of the Red Cross, would have it, if he or she is neither a member of enemy armed forces nor associated forces and is not being targeted while directly participating in hostilities, does he or she nonetheless perform a “continuous combat function” (CCF) for the enemy?
Even accepting the controversial CCF notion, and in light of the U.S.’s cavalier approach to these rules, it requires magical thinking to conclude that all these criteria line up to result in an error rate of only one “non-combatant” killed in a total of 430 “outside areas of active hostilities.”
If the killing occurs outside the context of armed conflict, does it (as it must) comply with the greater restrictions imposed by international human rights law, namely that the targeted individual posed an imminent threat of deadly harm which could only be ameliorated through lethal force? Given the U.S.’s outlier history of not even recognizing the applicability of human rights law to its extraterritorial operations, and given its more recent determination that “imminent” means a threat that could materialize in the future (in other words, the opposite of “imminent”), there’s every reason to suspect that the U.S. is no more rigorous about complying with its human rights law obligations than its law of armed conflict obligations.
I have tried to place this debate back into the practical micro-context from which it arose: the law of armed conflict and human rights law consequences of the 53 strikes outside “areas of active hostilities” in 2016 that the U.S. acknowledges. But there are other macro contexts to this debate that need to be acknowledged too, including whether U.S. killing policies are consistent with the U.N. Charter’s prohibition of the use of force and whether our planet is more secure when we assert the tools and language of war, rather than peacetime policing powers without geographic limitation. On these, and other critiques of Goodman’s “Memo to the Human Rights Community,” I recommend Naz Modirzadeh’s post at Lawfare.