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.