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Letter to the Editor: Finding a Middle Ground on “Areas of Active Hostilities”

 

News that the Trump administration is close to revising the Obama-era policy on direct action against terrorist targets has reawakened the long-simmering debate over the appropriate legal framework undergirding such operations. The latest iteration of this dispute among international law scholars and practitioners has centered around Ryan Goodman’s “memo to the human right community” and the flurry of responses it elicited. However, as Gabor Rona noted, the current back-and-forth is really a continuation of a discussion from earlier this year about the credibility of U.S. reporting on civilian casualties in counterterrorism strikes.

In that earlier debate, Gabor found “something very wrong” with the estimation from the Director of National Intelligence (DNI) that only one non-combatant was killed during U.S. strikes outside areas of active hostilities in all of 2016, owing to what Gabor (along with many in the human rights community) views as the American penchant for invoking the laws of war too readily, and defining the term “combatant” too broadly. In February, Ryan countered that Gabor was making “a category mistake” by conflating policy (“areas of active hostilities”) and law (the thresholds of armed conflict). Later, with Stephen Pomper, Ryan added that even if the U.S. government is not always perfectly clear as to when and where it is using force “in armed conflict or in the exercise of the nation’s inherent right of self-defense,” that concern is mitigated by the more stringent justification associated with self-defense/imminence strikes vis-à-vis law of armed conflict (LOAC) targeting.

Fast forward eight months, and we find ourselves, in many ways, back where we started. The reportedly imminent replacement of the Obama administration’s Presidential Policy Guidance (PPG) with the Trump administration’s Principles, Standards, and Procedures (PSP) have led some commentators (notably Obama administration veterans) to issue a sigh of relief that certain pillars of the old policy, such as “near certainty” of no collateral damage, will remain. Some human rights advocates, on the other hand, apparently see the potential demise of the “continuing, imminent threat” standard, and the devolution of targeting authority to less-senior levels of the interagency, as severing the few remaining constraints, which at least tether U.S. operations to international law.

Unfortunately, some of the more strident critiques have also been inaccurate. For example, Daphne Eviatar’s claim that the PPG “was drafted to address when the U.S. government could use lethal force outside an armed conflict” in which the laws of war do not apply is patently untrue. The Obama administration was explicit that “the applicable international legal regime governing these U.S. military operations is the law of armed conflict covering non-international armed conflicts.” You don’t need to agree with that assessment—many do not—but you have to acknowledge it. Indeed, one of the criticisms of the PPG was that it elided a robust analysis of applicable law by treating LOAC as a backdrop (with amorphous phrases such as “consistent with applicable law of armed conflict principles”) and applying a veneer of policy with the assurance that it was more restrictive than LOAC anyway. 

As Bobby Chesney has taken pains to remind us, and as Ryan reiterated, “areas of active hostilities” is a policy term, not a legal one. Simply put, that nomenclature is not dispositive as to whether or not the laws of war apply. What does seem relatively certain is that Obama administration lawyers meant “outside areas of active hostilities” to denote locations where LOAC does apply, but where policy considerations dictate heightened standards to minimize civilian casualties beyond what is merely excessive in relation to the expected military advantage.

It is also axiomatic that policy must operate within the confines of law. Just as the demarcation of areas of active hostilities does not automatically switch the applicable legal framework from LOAC, or international humanitarian law (IHL), to international human rights law (IHRL), it also does not allow states to apply LOAC where the threshold of armed conflict has not been met. In this vein, Monica Hakimi’s insight that “as a situation’s resemblance to a hot battlefield becomes less apparent, IHL’s application becomes more dubious” is especially prescient. I think this is also what Marko Milanovic was trying to get at with his typology of historical drone strikes: there are warzones, there are law enforcement scenarios, and then there are tougher cases, which is ostensibly why the PPG was crafted in the first place and why the Trump administration is apparently unable to fully abandon it.

This, in turn, gets us to the crux of the issue, which is what the PPG was actually designed to do. Bobby previously described it well as eschewing “the full range of authority that LOAC would permit, in favor of a more constrained approach,” so as to downplay the practical gap between the U.S. position of “a borderless armed conflict and the position of those who reject that view.” Or as Marko phrased it, the PPG “maintained the rigidity of the U.S. legal position that IHRL did not apply to an extraterritorial taking of life,” while substantially reducing “the risk of an IHRL right to life violation” by approximating (although not satisfying) IHRL standards. Put another way, the Obama administration lawyers who developed the PPG took on a mission impossible: i.e., squaring the circle of the idiosyncratic American view of a global non-international armed conflict (NIAC), so as to mitigate the differences between the U.S. and most of the world, including its allies. The cognitive dissonance was baked in from the start.

Thus, the angst over the purported transition from the PPG to the PSP is really a proxy for a much more fundamental disagreement. Where does that leave us? If the answer is right back to the binary of armed conflict versus law enforcement, and the unbridgeable divide that represents, that’s not particularly helpful. I believe this was the main impetus for Ryan’s memo: We can debate the particulars of U.S. targeting, but accusing American policymakers of extrajudicial killings and assassinations is generally not constructive, nor does it tend to earn the accusers a seat at the proverbial table.

As evidenced by the ongoing debate, answers here are hard to come by. But I think there are a few markers we can draw that may help guide future discussion.

First, “areas of active hostilities” is not a legal term, but it is a problematic one. Although presented as a policy overlay, it appears instead to overlap with the organization and intensity thresholds for determining the existence of a NIAC. This is especially so because the Obama administration factored “the size and scope of the terrorist threat” and “the scope and intensity of U.S. counterterrorism operations” into the definition itself. This is legitimately confusing to supporters and detractors of U.S. policy alike; combined with the malleability of the term based on presidential preference, it begins to look like a shell game to supplant threat-based targeting with status-based targeting whenever convenient. U.S. policymakers would do better to just spell out (and update as needed) the relevant locations, or else adopt a more traditional analysis that situates approval of terrorist targets as a matter of resort to force rather than conduct of hostilities.

Second, the reality that U.S. military policy is to “comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations” is longstanding, deeply ingrained, and reinforced through training. It is a vital part of how the U.S. armed forces view themselves. For a number of reasons, ranging from the U.S. historical experience to its current warfighting responsibilities, it is highly unlikely that American troops will anytime soon toggle between armed conflict and law enforcement paradigms like their European counterparts. While this may be anathema to some human rights lawyers, it bears reminding that LOAC includes both licenses and limitations, that the U.S. military takes both parts with the utmost seriousness, and that the application of jus in bello restrictions is not necessarily determinative of whether all its attendant permissions apply. Contrary to how it may be portrayed in some high-level policy documents, LOAC is much more than “a toolkit for targeting.” It is a code of conduct for U.S. troops.

Finally, irrespective of the growing acceptance of “spillover” NIACs, the human rights community is almost certainly right to label the U.S. an outlier with respect to its global NIAC theory. Whether the PPG provided an effective policy cover for this anomalous legal stance is debatable; whether the PSP will do any better or worse remains to be seen. Yet we would all do well to take a step back and recall that historically the worst humanitarian abuses have been inflicted by nations denying, rather than embracing, the existence and accompanying obligations of war. Indeed, the very development of objective criteria for determining when an armed conflict exists was intended to deprive warring parties “of the pretexts they might in theory invoke for evasion of their obligations.” The point is not that the U.S. should be let off the hook if its legal position is untenable, but to recognize that there are worse problems than the world’s preeminent military power claiming to exceed the dictates of LOAC. The considerably graver danger, prevalent not all that long ago, manifested in states asserting immunity from international legal regulation in the absence of declared war. Whereas the advent of IHRL renders such claims nonviable, it does not necessarily follow that IHRL can realistically control the massive force associated with combat power. Only LOAC is specially designed to assume organized violence as given and thereby alleviate “as much as possible the calamities of war.”

It is impossible to establish that every U.S. drone strike conducted in accordance with the PPG outside areas of active hostilities was indisputably in the context of armed conflict. But such operations were clearly authorized pursuant to a legal framework that three successive (and wildly divergent) U.S. administrations have thus far been remarkably consistent about, along with a robust policy framework that is imperfect but by no means flippant about U.S. obligations to protect civilians. For a nation encountering an elusive and novel transnational terrorist threat, that is no mean feat. It should, at the very least, invite dialogue rather than recriminations between the national security and human rights communities.

Image: An MQ-9 Reaper at Joint Base Balad in Iraq. U.S. Department of Defense

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About the Author

Lieutenant Colonel in the U.S. Air Force His views do not reflect those of the Air Force or Department of Defense.