Nils Melzer on Whether U.S. Citizen Abdullah al-Shami is a Lawful Military Target

The Obama Administration is reportedly evaluating whether a lethal operation against a US citizen in Pakistan is legally permissible. Last Friday an important story by Mark Mazzetti and Eric Schmitt in the New York Times disclosed the identity of the US citizen — Abdullah al-Shami — and a profile of his activities. Mazzetti and Schmitt reported the following information:

“Mr. Shami worked his way up the ranks of Al Qaeda’s senior leadership in Pakistan, his ascent aided by his marriage to the daughter of a top Qaeda leader. Last year, he appears to have risen to become one of Al Qaeda’s top planners for operations outside Pakistan, including plots against American troops in Afghanistan.

‘We have clear and convincing evidence that he’s involved in the production and distribution of I.E.D.’s,’ said one senior administration official, referring to improvised explosive devices, long the leading killer of American troops in Afghanistan.”

I communicated with Nils Melzer, who many readers know as a leading expert on the law of targeting, a former Legal Adviser of the International Committee of the Red Cross (ICRC), and author of the ICRC’s Interpretive Guidance on targeting in wartime. I provided Nils with the above description from the New York Times, and posed the following questions to him:

Is this person a direct participant in hostilities (DPH), or otherwise a legitimate military target under international humanitarian law (IHL)?
If the United States uses force without Pakistan’s approval, would that constitute an “international armed conflict” under the Geneva Conventions?

Nils’s was generous to reply with his thoughts:

According to your case description Mr. Shami: (a) has become one of Al Qaeda’s top planners for operations outside Pakistan, including plots against American troops in Afghanistan, and (b) is involved in the production and distribution of improvised explosive devices (IEDs).

Of course, the notion of DPH is relevant only if the confrontation between the US and Al Qaeda is regarded as a (non-international) armed conflict governed by IHL/LOAC. Otherwise, lethal force may be used only under a threat-based regime governed by strict necessity and proportionality. But assuming for the purpose of the argument that IHL/LOAC applies, and that the facts you provide are accurate, then Mr. Shami probably would have to be regarded as a member of the senior military leadership of Al Qaeda (planning of operations outside Pakistan, including against US troops in Afghanistan). The planning of specific military operations clearly qualifies as DPH and, if carried out as part of his continuous function within Al Qaeda, would amount to a “continuous combat function” depriving him of his civilian status and protection against attack for as long as he assumes that function.

The mere (even organized) “production and distribution” of IEDs, on the other hand, would not in my view amount to DPH, unless it becomes an integral part of a specific hostile act (e.g. the person in question builds an IED for a particular operation/target, or he actually places the device himself, or he decides himself on its use for a specific operation). Here a parallel can be drawn to the civilian ammunition factory worker. In practice, of course, there is a broad grey zone surrounding this type of activity and the facts are not easy to establish. Therefore, a case-by-case analysis is necessary. Based on the facts you provide, however, this would be my conclusion.

If the US were to use force against Mr Shami within Pakistan without express or tacit Pakistani consent this would amount to a use of interstate force within the meaning Art. 2(4) UN Charter, for which the US would have to seek justification under Art 51 UN Charter and the corresponding or related customary principles of self-defence. Would such a use of force start an international armed conflict within the meaning of Art. 2 Geneva Conventions? In my view: yes. It would not necessarily entail a political “state of war” between the US and Pakistan, but it certainly would trigger the applicability of the Geneva Conventions and other relevant IHL/LOAC between the US and Pakistan at least with regard to persons and objects affected by that particular operation.

The practical relevance of this conclusion is limited, however, as long as neither country claims the existence of an international armed conflict. Technically, of course, the existence of an international armed conflict between the US and Pakistan would also mean that the DPH rule becomes relevant for the potential targeting of Mr. Shami regardless of the qualification of the underlying confrontation between the US and Al Qaeda. In this case, however, the “hostilities” which a civilian would have to “directly participate” in to lose protection, would be those between Pakistan and the US (which are unlikely to ever materialize). Direct “hostilities” between Al Qaeda and the US can only exist if the confrontation between the US and Al Qaeda is regarded as an independent (non-international) armed conflict in its own right.

 

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). You can follow him on Twitter @rgoodlaw.