The Biden administration reportedly is revising a Trump-era policy governing the use of lethal force against terrorists outside the United States. This Trump policy was, in turn, a revision of the Obama-era Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities, often referred to as the PPG. (Just Security has covered both policies extensively.) The new revision process provides an important opportunity for the Biden administration to rewrite these policies, which by their terms apply outside of the more traditional battlefields of Iraq, Afghanistan, and Syria. At the same time, the revision process is a critical moment for the administration and others to consider the pros and cons of the policy-oriented approach itself. (I have spelled out this argument in a longer form here).

The Obama administration took the position that as a matter of international law these operations, because they were occurring in the context of an ongoing armed conflict, should be governed by international humanitarian law, also known as the law of armed conflict (LOAC), rather than the more stringent requirements of international human rights law (IHRL). Yet, as a matter of policy, the PPG (and to a lesser extent the Trump-era successor policy) imposed standards that exceeded the legal requirements of LOAC and moved in the direction of IHRL. In revising the policy, therefore, the Biden administration, which has expressed a strong commitment to ending “forever wars” and to protecting human rights, should now consider articulating a more limited scope for the armed conflict paradigm and a broader role for IHRL as a matter of law rather than policy. At the same time, to the extent that ambiguities remain regarding the content and reach of extraterritorial IHRL obligations in a variety of contexts, policy may still provide a pragmatic path forward in the absence of full legal consensus.

Meanwhile, for human rights and humanitarian law NGOs that monitor state compliance with international law in the conduct of extraterritorial counterterrorism operations, this is also an important moment to consider both the pros and cons of the policy approach and when to advocate for which. Congress too can turn policies into law by adopting them into domestic legislation regardless of any ambiguities under international law.

In the decades following the September 11, 2001 attacks, in the conflicts with Al Qaeda, the Islamic State of Iraq and Syria (ISIS), and other terrorist groups, the United States has across multiple administrations taken a very broad view of these armed conflicts and the primary international legal paradigm that accompanies them: LOAC. This stance has to some degree pitted the United States against many of its own allies, international organizations, and NGOs, which view the scope of the battlefield as more geographically and temporally confined. As a result, these entities often see a reduced role for LOAC and a correspondingly greater role for IHRL beyond what they consider to be the legitimate boundaries of armed conflict. The United States, as compared to many allies, international organizations, and NGOs, also interprets LOAC differently and adopts a different view of the relationship between IHRL and LOAC even within traditional battlefields. And many of these states and entities take different approaches to the content of another relevant body of international law, the jus ad bellum, which governs the resort to force in the territory of another state.

In the midst of these contrasting approaches, enter what might be termed “legalistic” national security policies. In the post-9/11 era, the United States has developed a series of extraterritorial counterterrorism policies which, I would argue, adopt more human rights-oriented standards to govern U.S. actions in these contested domains, but as a matter of policy rather than law. The Obama-era PPG targeting policy was one example, providing higher standards for the use of lethal force than LOAC would require as a matter of law. For example, the PPG established a preference for capture of a terrorism target rather than the use of lethal force (although there is debate on whether this is indeed required by LOAC). In addition, in any lethal force operation, the PPG required a “near certainty” that civilians would not be killed and a “near certainty” that the particular target was present.

The procedures governing the review of Guantanamo detainees by Periodic Review Boards (PRB) comprise another such policy: as initially set out in Obama’s Executive Order (E.O.) 13567, PRBs are an administrative process that evaluates the threat posed by the detainee at least every six months, allows detainees to present information to the PRB, and to be represented by a lawyer as well as a government-provided personal representative. As a matter of domestic law, some of these PRB procedures have now been codified, but the initial E.O. established PRBs “as a discretionary matter.”

These policy standards move in the direction of IHRL as a matter of policy, rather than law (although to be sure they do not fully implement IHRL rules). For example, under most interpretations, IHRL would not allow the premeditated use of lethal force against a specific individual, unless strictly necessary to prevent imminent harm. The preference for capture and the “near certainty” elements of the PPG approximate the IHRL necessity standard and are more stringent than LOAC targeting principles. Under LOAC, there is typically a lower threshold for the use of lethal force, which is permissible if a commander follows applicable LOAC rules, such as those on military necessity, distinction, proportionality, precautions, and unnecessary suffering. Proportionality requires that a commander consider whether the expected military advantage of an attack is “excessive” compared to the expected harm to civilians and civilian objects—a standard that would generally be easier to meet than IHRL’s strict necessity rule and the “near certainty” elements of the PPG.

In the case of military detention, the PRB procedures for Guantanamo detainees arguably exceed what the United States has said LOAC requires. IHRL would mandate much more stringent due process for these detainees, such as a right to a lawyer at no cost and the right to be brought within an independent judicial body to be charged within a reasonable period of time or released. (Both LOAC and IHRL also mandate humane treatment of detainees, but IHRL generally imposes more stringent requirements as well). Even if the PRB procedures do not satisfy IHRL, they at least nod in the direction of human rights. They also nod towards an interpretation of LOAC that such review is mandatory as a matter of law.

Such policies have been surprisingly durable across administrations. The Trump administration, although much more secretive than the Obama administration and dispensing with some of the PPG’s elements, nonetheless retained others. For example, the Trump successor policy appears to have omitted the requirement to establish near certainty that a terrorist target was present before lethal force could be used, and it also allowed decision-making by actors at lower levels of authority. But the Trump policy retained the preference for capture and the standard of “near certainty” that civilians would not be harmed in a lethal force operation—even though the policy allowed decisionmakers to water down the capture preference and deviate from the “near certainty” standard where “necessary” (reportedly, Trump administration officials applied the standard to women and children, but not men). In addition, at least on paper, the Trump administration retained key elements of the PRB process, even those not codified in domestic law, although some commentators have charged that the Trump administration did not implement the procedures in a robust fashion.

Importantly, these policies are “legalistic.” To some degree, they borrow legal categories from international law. Congress has now incorporated some elements of these policies into domestic law. And the policies require lawyers to interpret their terms. In other words, lawyers’ judgments and recommendations are essential to implement these policies just as they are to evaluate the legality of operations under international law. In a sense, the policies establish lawyers as guardians of the policy implementation process itself.

What are the advantages and disadvantages of a policy approach?  Of course, it depends on one’s perspective. Here, I will map out some considerations from the point of view of the executive branch and the human rights community. Of course, both of these entities are hardly monolithic, and so this map oversimplifies their views to some degree. Nonetheless, I think it is helpful to evaluate the implications of a policy approach.

Executive branch

From an executive branch perspective, national security policies have a number of key benefits, as compared to an approach that would incorporate more robust human rights requirements as a matter of law. To begin with, such policies can bridge differences with allies, including international and host nation partners, and they can address the concerns of IOs and NGOs as well, by implementing a more human-rights oriented approach. But crucially, they do so without locking the government into legal commitments. In the targeting context, these policies also provide an opportunity to implement standards that approximate jus ad bellum elements that many of these entities embrace given their more limited view of the scope of existing armed conflict. (For example, a policy might mandate that U.S. officials fulfill jus ad bellum requirements as a matter of policy even when officials have concluded that such requirements do not apply as a matter of law; or a policy might impose a higher standard for some jus ad bellum elements than the United States has accepted as a matter of law). In other words, policies provide key inter-operability and normative benefits with many partners while enabling the United States to retain flexibility in complex counterterrorism environments.

Further, policies can explicitly incorporate room for officials to deviate from standards, or, if necessary, officials can revise their terms entirely. In short, the executive branch can eschew or change policies if they prove problematic. The adoption of such policies can also bridge differences within the executive branch, for example between officials who see a smaller domain of armed conflict domain and a potentially broader role for IHRL versus those who see LOAC as dominant.

But even from an executive branch perspective, there are significant cons as well. The United States may want to embrace a broader role for IHRL as a matter of law. For example, to the extent that the United States is essentially abiding by IHRL rules in extraterritorial counterterrorism operations but not committing to them as legally binding, a policy approach reduces the opportunity for the United States to encourage states who do not follow such principles to embrace a human rights approach. Moreover, human rights law is not the straightjacket often portrayed by its critics, and it actually offers considerable flexibility in counterterrorism contexts.

Abiding by IHRL as a matter of law in more extraterritorial counterterrorism contexts also would give the United States opportunities to shape how that body of law is applied in such settings and engage with institutions that, with or without U.S. participation, seek to apply IHRL to U.S. activities abroad.

Finally, policies can create muddiness and confusion about what the law actually is. This can impede understanding and development of the law and also create confusion about whether the United States is creating customary international law when it acts according to policy.

Human rights community

From a human rights perspective, government adoption of policies that are more human rights-protecting is a mixed bag. On the one hand, such policies have the practical impact of making the state more aligned with human rights norms in its day-to-day counterterrorism operations. This is a big plus from a human rights perspective. For example, during the Obama administration, it is possible that, if the human rights community had pushed for a full-throated legal embrace of IHRL in the extraterritorial counterterrorism context, the effort would have failed. In a litigation posture, attempts to implement IHRL could backfire, resulting in judicial imprimatur of the executive’s broad interpretations of the scope of conflict and reach of LOAC as opposed to IHRL. Thus, one might see the adoption of legalistic policies as important, pragmatic human rights victories with very real positive consequences on the ground. Moreover, even though administrations can, in theory, change such policies, they are at least somewhat durable in practice.

On the other hand, as discussed above, the adoption of legalistic policies can impede understanding and slow the development of the law. Thus, if a state opts to make policy rather than embrace a human rights-oriented view of the law, human rights groups may view this choice as a cop-out. Furthermore, the secrecy around the implementation of these policies can lead to self-serving interpretations by executive branch officials that water down their terms. And a policy is more vulnerable to subsequent reinterpretation or case-by-case backsliding than a legal interpretation would be (though as described above, even policy determinations can be somewhat sticky from one administration to another). Finally, so long as the United States maintains that these policies are discretionary, it gives other states cover if they fail to apply to IHRL in their own operations.

A role for Congress?

Congress can play a key part here as well. Regardless of whether the U.S. executive branch embraces policies at the international level, Congress can implement some aspects of these policies as domestic law. Indeed, Congress has already codified some elements of the PRB process and another extraterritorial counterterrorism policy, civilian casualty reporting.

Concluding thoughts

In sum, the Biden administration’s review of these policies is a good opportunity for the executive branch to consider embracing a more confined role for LOAC as a matter of law, narrow the scope of the “ongoing armed conflict” (consistent with its stated commitment to winding down rather than expanding the forever wars), and in turn articulate a broader role for IHRL.

There are, of course, ongoing debates about the extraterritorial reach of different IHRL norms as well as questions about the interplay between the jus ad bellum and IHRL that would come to the fore if the role of LOAC is circumscribed. A more limited view of armed conflict zones and a more constrained scope for LOAC will also expose differences between the United States and other entities in the interpretation of jus ad bellum elements such as the imminence requirement for the use of force in self-defense in the territory of another state. But these are important debates to have.

Moreover, even if the Biden administration commits to a wider reach for IHRL in some settings, policy will still remain important. Indeed, to the extent that the administration cannot find consensus about the precise reach or contours of IHRL in some contexts, or clings to permissive interpretations of jus ad bellum elements, the administration could usefully establish a continuing role for policies that would help bridge divides with allies and others who see the law as imposing more stringent standards. For NGOs, this is also a crucial moment to evaluate the role of law versus policy in this domain and to consider when embracing a policy approach may actually be a useful path forward, and when it is not. Finally, Congress should use this moment to consider whether to incorporate more elements of extraterritorial counterterrorism policy into domestic law.