Targeting and Functional Membership

Readers might be interested in the following essay by Gabor Rona on targeting decisions.  Rona offers a critique of a speech this week by Jeh Johnson, chief counsel of the U.S. Department of Defense, delivered at Yale Law School.

Here is what Johnson said during his speech:

Should the legal assessment of targeting a single identifiable military objective be any different in 2012 than it was in 1943, when the U.S. Navy targeted and shot down over the Pacific the aircraft flying Admiral Yamamoto, the commander of the Japanese navy during World War Two, with the specific intent of killing him?  Should we take a dimmer view of the legality of lethal force directed against individual members of the enemy, because modern technology makes our weapons more precise?  As Harold [Koh] stated two years ago, the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the law of war on the use of technologically advanced weapons systems in armed conflict, so long as they are employed in conformity with the law of war.  Advanced technology can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.”  Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context.  Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination.”

Now, here’s Rona’s assessment of the speech:

Rather than a successful defense of targeted killing policy, Johnson's speech is an admission that US practice is beyond the scope of international humanitarian law — the body of law that governs war, or armed conflict. As such, US practice is also necessarily beyond what international human rights law would permit outside of war, since the international law rules for killing in peacetime require a higher threshold of imminent harm than the rules applicable to war.

In particular, Rona claims that: “In armed conflicts against non-state armed groups who do not wear uniforms and are often difficult to distinguish from the civilian population, targeting determinations rightfully require a higher threshold of imminent harm.”

What I find curious about Rona’s conclusion is his claim that U.S. targeting decisions violate both International Human Rights Law (IHRL) and International Humanitarian Law (IHL).  Rona’s claim that the U.S. is violating IHRL is not surprising, since Rona has already forcefully argued that IHRL and IHL ought to be co-applied in certain contexts (a position that I expressed some doubts about in a previous exchange).  If IHRL applies in a given context, then Rona concludes that there is a threshold requirement of imminent harm before lethal force can be used.  (In IHL there is no threshold requirement of imminent harm.).

However, in the present essay, Rona goes further and concludes that the targeting theory defended by Johnson violates IHL as well, which is a much stronger claim. 

If I understand correctly, Rona’s claim is that in a non-international armed conflict (NIAC), the targeting of non-uniformed individuals is only permissible if they are civilians directly participating in hostilities (DPH) or exercising a continuous combat function (CCF); the latter category is strongly associated with the International Committee on the Red Cross.  Rona claims that U.S. targeting decisions are based on “mere membership.”

If by “mere membership,” Rona means that the U.S. is targeting some individuals who are members of these groups but who are not exercising a continuous combat function, then I think there is a missing piece of the argument.  In short, I think it depends on what type of non-state armed group one is talking about.

Some non-state armed groups have dual functions.  They have a military wing that plans and engages in violent attacks, but they also provide civilian services to local populations.  Hamas and Hezbollah might be plausible examples of this type of non-state actor.  Many have aspirations to govern a particular territory through the political process.  In such situations, given the dual civilian/military nature of the organization, Rona is correct that “mere membership” in the group would be insufficient evidence that the targeted individual is exercising a continuous combat function.

However, some non-state armed groups are more united in their focus around military operations.  Some of these groups are exclusively dedicated to attacking their enemies and do not provide civilian services to local populations.  They are, so to speak, quintessentially military endeavors, wherein it is plausible that all “members” of the organization are exercising a continuous combat function.

Of course, in this analysis, membership would need to be determined based on functional – not formal – criteria.  Such criteria would include the individual’s placement within the chain of command, i.e. his giving or taking orders within the organization’s hierarchy regarding the preparation or delivery of attacks against the United States or its allies.  A functional criterion for membership is required because in many instances there are no uniforms, membership cards, or paychecks to signify the individual’s membership.  And the functional notion of membership will closely track the CCF standard.  Moreover, I do not think it is correct to denigrate the notion of functional membership as a mere “status”-based concept.  It is, more specifically, a hybrid status-conduct concept.

(For more on the concept of functional membership, see my chapter in the forthcoming Targeted Killings volume, forthcoming from Oxford University Press).

If this is correct, then the real issue is whether a particular non-state organization with which the United State is engaged in an armed conflict, whether al-Qaeda or some associated force, is a non-state military organization to its core, or whether it is a hybrid organization engaged in dual military operations and civilian services.  If the former, it seems to me that functional membership gets to the heart of the CCF standard and satisfies the IHL obligation.

More on Saif Gaddafi

For readers interested in the fate of Saif Gaddafi, and whether he will be tried in Libya or at the ICC in The Hague, Dapo Akande has an important follow-up post at EJIL Talk.  Dapo brings us up to date on the latest filings at the ICC, including the fact that Libya has not filed an admissibility challenge before the ICC.  The delay is rather inexplicable, although perhaps the National Transitional Council is busy fulfilling their obligations trying to pull Libya together and restoring domestic security.  Perhaps it is impressive that they managed to send a letter to the ICC.

In any event, Dapo extends the discussion with an important analysis of Articles 94 and 95 (and their relationship to each other) of the ICC Statute.  

To remind readers, Dapo and I both argued that Libya may keep Saif in domestic custody pending the outcome of its admissibility challenge at the ICC (if one becomes necessary), while Kevin Heller argued at OJ that Libya has to send Saif to The Hague first and then request his return if it loses its admissibility challenge.

Previous installments of this debate can be found here, here, here, and here.  Is that enough admissibility for you?

Conspiracy and the New Hamdan Argument

Cross-posted at Opinio Juris.

I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction.

The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions.  In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations.  Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war.  This power stems from the penumbra of Congress’ war-making powers in Article I.

There are a lot of implications to the new analysis, not all of which I have fully digested yet.  Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined.  In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11.  Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law.  So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.

Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about -- I want to raise another issue here, and that’s the status of conspiracy as an inchoate offence under this new theory.

In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission.  Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion.  This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.

However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny.  In fact, it would be a much easier argument.  Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime.  In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide).  Under the new scheme, however, the international angle would be completely off the table.  Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission.  In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis. 

Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal.  But I would think that another case down the pipeline will certainly address this question.

Syria and the Overlapping Consensus

Cross-posted at Opinio Juris.

David Rieff has an interesting – and somewhat polemical – article in the latest Foreign Policy.  Rieff, you will recall, was an early supporter of intervention, a policy position no doubt influenced by his time spent in Bosnia which culminated in Slaughterhouse: Bosnia and the Failure of the West.

Although initially hawkish on intervention, and willing to support liberal interventionism in Iraq, Rieff had a change of heart after the Iraq war failed to achieve any liberal goals.  Not only did Rieff renounce the Iraq war, but he also went further and started renouncing the liberal interventionism that he once championed.

These debates are always about historical comparisons and parallels. Which ones are correct and which ones are wrong?  Was Iraq more like Vietnam (intervention not OK) or more like World War II (intervention permitted or even required)?  Was Libya more like Kosovo or Iraq?  And is Syria more like Kosovo or Iraq?

Rieff does a number of things in this article.  First, he points out the lack of concrete and impartial information on the ground in Syria.  He is also particularly concerned about the possibility of Islamic extremists and terrorists among the rebels; on this score he is channeling the recently departed Christopher Hitchens.  Finally, he wants to throw a cautionary wrench into the interventionist assumption that unilateral interventions will make matters better, not worse:

During the Bush administration, Democrats often boasted that -- unlike the president and his aides, who were consumed by millenarian dreams of remaking the Middle East in the image of American democracy -- they were part of the "reality-based community." In fact, the neoconservatives were paragons of modesty compared with the liberal interventionists and R2P supporters who saw in Libya and now see in Syria the chance to move one step closer to remaking the world in the image of the human rights movement. Infatuated by their own good intentions -- and persuaded that their interventionist views incarnate a higher morality -- those who view Libya as a triumph and Syria as an opportunity to cement the practice of humanitarian intervention are in full crusading mode. If the looming victory of the Taliban in Afghanistan, the failure of the democratic project in Iraq, and the fact that the most significant political outcomes of the Arab Spring in Egypt, Yemen, and Libya have been instability and the victory of political Islam have not chastened them -- and clearly they haven't -- nothing will. Welcome to the second decade in a row of humanitarian war.

I don’t necessarily agree with what Rieff is saying, but I do worry about the possibility of an overlapping consensus supporting intervention.  On the one hand, some people support foreign interventions because they are necessary to stop extremism – think of Hitchens on Iraq or Afghanistan.  Liberals, on the other hand, support intervention under R2P or just a general belief that innocent victims ought to be protected, as they were in Kosovo, or as they should have been (but weren’t) in Rwanda.

The danger, of course, is that such an overlapping consensus is rather thin, i.e. it doesn’t go very deep, and disagreements about the conduct of the war will then be exposed.  That’s one reading of what happened with Iraq.  Neo-conservatives supported the war, as did some prominent liberal interventionists on the theory that what we really needed to do was protect the Kurds and other ethnic groups from Saddam’s rule.  But when it became clear that we were failing to significantly protect the civilian population and provide adequate security, that liberal support started to vanish.  But at that point it was too late.

Syria, Intervention, and Recognition

Cross-posted at Opinio Juris.

It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe.  And they definitely will veto any resolution that authorizes military action in Syria.

Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria.  That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument.  The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention.  True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires.  But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.

Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing.  If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty.  Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.

There are two options to this strategy.  Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory.  Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.

What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary?  In other words, can the recognition strategy be universalized?  Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all -- and anoint them as legitimate rulers?  Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China?  (The ROC once ruled mainland China too but lost a civil war to the PRC).

Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here.  There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be.  With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible).  But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).

That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?