Using drones: principles, tactics and results (amended title)

[jmm99]

Here is a pre-publication draft by Bobby Chesney (one of the folks at Lawfare), Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force.

Its abstract:

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances.

Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied.

Part III then turns to objections rooted in IHL and IHRL, beginning with the question whether an attack on al-Awlaki would fall within IHL’s field of application.

I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, it has been crossed as well with respect to the United States and the larger al Qaeda network – and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs.

A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).

Prof. Chesney asks a fairly narrow question: "Does international law permit the U.S. government to kill al-Awlaki in these circumstances?" Placing that question front and foremost gives too much primacy to the "law" as the decisive factor in dealing with Mr al-Awlaki and others in his group.

A different approach (which eventually gets to the "law") would start with the policy choice between the packages of strategy and tactics, available or which could be developed, to neutralize (kill, capture or convert) the target group. The policy choice could range from a purely "law enforcement" approach (in which targeted killing is far from the norm) to a purely "military" approach (in which targeted killing is the norm - in the setting of a conventional war under the least restrictive ROEs[*]) - with mixtures of those approaches along the spectrum.

Having decided on a package of strategy and tactics, one then should approach the "law" to see what is available "off the shelf". One should fully realize that the "law" is not an immutable omnipresence in the sky; and often can be shaped or even changed to meet the needs of the strategy and tactics selected. Good lawyers shape (or at least try to shape) the "law" every day.

Of course, if you believe that the "law" is simply immutable, then you cannot accept my suggestion.

A similar disconnect involves who decides what the "law" is (lots of room for some Clintonesque parsing of "is"). My position is that that decision is a policy decision which belongs to the governmental branch or branches constitutionally empowered to decide.

In matters of foreign and military policy, the courts should rarely be involved with those political questions. They should not be decided by legal academics; e.g., The Lexington Principles Project:

A Transnational Legal Process Approach to Due Process

The Lexington Principles on the Rights of Detainees is a new body of international due process principles reflecting the prevailing transnational norms in the area of detainee treatment. The final principles were completed on April 1, 2009.

The "prevailing transnational norms" are, of course, as seen by the folks (mostly academics) who constitute the project's principals.

Regards

Mike

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[*] E.g., Germans vs US in 1944. To a German sniper, my dad was a legal target, whether armed or unarmed, at any time or any place, whether or not he himself was or was not an immediate hostile threat to anyone. The German can shoot because dad (1/117-30ID) was an enemy combatant.

In the case of a irregular force, the question of who is a "combatant" is a tougher factual question - as also the treshhold question of whether an "armed conflict" exists between the irregular force and the state considering use of targeted killing.