Ryan’s recent post about ongoing “drone strikes” in Yemen raises an issue that has troubled me for quite some time from a legal, policy, and advocacy perspective.
In the last of his four points, Ryan questions whether the United States is involved in Yemen’s internal armed conflict. The reason this argument can be made (and has been made) is because, as LOAC lawyers know, an assessment of whether an “armed conflict” exists under international law is a fact-based assessment. An armed conflict is based on objective criteria; not on the subjective views of the military, lawmakers, or anyone else (although such views may be strong indicators that an armed conflict does exist).
The reason this rule was codified in LOAC was to combat the practice of States that refused to admit they were in armed conflicts, including internal armed conflict, because they found it politically, economically, or militarily disadvantageous to admit that rebels may have gotten the upper-hand. States have also refused to admit they were in internal armed conflicts to avoid following LOAC rules, a body of law that has expanded over the years through treaty and customary international law.
The fact-based test for armed conflict, at least at first glance appears to bring more, rather than less, regulations into hostilities and ensure greater protection for civilians. These include rules relating to the humane treatment of detainees, authority of humanitarian relief agencies to offer assistance, and strict(ish) rules on who can be killed and under what circumstances.
However, in the context of U.S. strikes in Yemen, the reliance on the fact-based test seems to have different consequences. Saying that the United States is in a LOAC alongside Yemen allows, as a matter of international law, the United States to carry out LOAC targeting operations under a legal justification that, as Ryan pointed out in his previous post, the United States itself may not agree with or publicly admit to.
That being the case, the current situation seems to have turned the intent of the test on its head. When applied to the United States, the fact-based test permits the United States to carry out a more permissive form of targeting then, say, human rights law alone may allow. To put it in an advocacy context, the fact-based test opens the door to the application of LOAC at a time when some say the United States should not be legally permitted to use LOAC targeting rules (e.g., killing as a means of first resort and LOAC rules of proportionality) outside its armed conflict in Afghanistan.
Despite the issues that the fact-based test raises, the test was put in place for good reason and I believe the test remains necessary, important, and should not be encroached upon. Indeed, LOAC does not always need to be fixed to solve the problems that it creates. For example, separate from what LOAC says, as a matter of domestic law and good policy, a government should make clear what laws apply when it uses force, whether at home or abroad.
The European Court of Human Rights has also provided a partial solution to ensuring that States cannot doubly benefit from permissive LOAC targeting rules while at the same time they deny the existence of a war in order to avoid many of war’s repercussions.
There are cases that have come before the Court where a State accused of human rights abuses refused to admit that an armed conflict existed despite the fact that it factually did. The Chechen cases provide recent examples. The Court, in these situations, applied human rights law, and only human rights law, to assess the allegations against a State. The end result of this approach was that the State, while perhaps benefiting politically or otherwise from refusing to acknowledge it was in an armed conflict, was measured against a higher bar (i.e., human rights law without derogations or the co-applicability of LOAC) compared to the bar that would have been set if the State had admitted to being in an armed conflict. The Court’s approach ensured that States were not allowed to have their cake and eat it too.
Admittedly, this approach has limits. For one, the United States is not subject to the European Court of Human Rights. It also leaves unanswered questions that arise regarding the extraterritorial application of the ICCPR to United States targeting operations in Yemen. (Although strong claims have been made that, regardless of treaty law jurisdiction, the right to life under human rights law reflects customary international law.)
The Court’s approach also leads to a perplexing result which speaks to the larger issues of fragmentation of international law. If you juxtapose the Court’s case law against the fact-based test for an armed conflict, it would appear possible that the Court could judge a set of facts in an entirely different manner then the International Criminal Court, or another tribunal, might. For example, the European Court of Human Rights may hold a State accountable for the actions of an agent solely under human rights law, whereas the ICC may not sanction that same agent for the exact same actions when applying LOAC under international criminal law.
Finally, the implications of applying the fact-based test to United States targeting killing operations in Yemen should not be overstated. If the United States is in an armed conflict alongside Yemen, then the United States would only be permitted to use LOAC targeting rules against those individuals who are party to that armed conflict and who are conducting themselves in a fashion that makes them targetable. United States involvement in Yemen’s internal armed conflict therefore says nothing of whether the United States is permitted to kill a member of al-Qaeda in Yemen who is not a party to Yemen’s internal armed conflict.