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Friday, July 27, 2012

How to Count Armed Conflicts

The recent lawsuit filed by the estate of Al-Aulaqi against Panetta et al, over his targeted killing in Yemen, contains many different legal theories in an attempt to sustain at least one that would yield relief.  (For recent commentary on the lawsuit, see here and here).  But I find it particularly interesting that the lawsuit argues that "[a]t the time of the killing, the United States was not engaged in an armed conflict with or within Yemen."   However, the lawsuit also goes on to assert that even assuming the existence of an armed conflict, the killing was illegal under international humanitarian law (IHL) because he was not directly participating in hostilities at the time he was killed.

What interests me most is the claim that the United States is not involved in an armed conflict in Yemen.  Obviously, this is carefully worded.  The lawsuit does not claim that there is no armed conflict in Yemen, because that stronger claim would offer little additional benefit to Aulaqi's legal claim.  It is enough for the plaintiffs to assert that since the US was not party to the conflict, IHL did not govern the US killing of Aulaqi.

There are several different routes towards finding an armed conflict -- or several armed conflicts -- in Yemen. Presumably, plaintiffs will attempt to argue in this case that all of these routes are foreclosed.  First, there is the obvious argument that the US is directly engaged in an armed conflict with al-Qaeda as a non-state actor, and that Aulaqi's killing took place as part of that armed conflict.  The plaintiffs might assert that global al-Qaeda is too fractured to constitue a single non-state actor, or that Aulaqi was not a member of al-Qaeda "core" in Afghanistan and Pakistan when he was killed.  But the U.S. government could always argue -- assuming the case is argued on merits rather than on procedural grounds -- that the U.S. government was engaged in an armed conflict with AQAP at the time of the killing, and it is unclear to me how the plaintiffs could block that argument from succeeding.  At the very least, the government could argue that its drone strikes against AQAP in Yemen are part of that armed conflict.  The only way of defeating that argument is for plaintiffs to argue that the AQAP is not sufficiently organized to constitute a party to an armed conflict, though that is a factual claim that might be difficult to sustain.

Of course, there is a completely different route to the same result.  The US officials can also argue that there is a non-international armed conflict in Yemen between its government and insurgent forces; this claim seems difficult to deny.  The drone strikes against Aulaqi and others could be pitched as an American intervention into that non-international armed conflict on the side of the Yemeni government, thus internationalizing the previously non-international armed conflict.  Whether this then counts as a single armed conflict (Yemen and the US against the insurgents) or two parallel armed conflicts, would be immaterial.  Either way, the US would be a party to an armed conflict and IHL would apply to the drone strikes.

As a final point, I was somewhat surprised that the complaint outlines completely different standards for the government's use of force under IHL and outside the context of armed conflict (i.e. peacetime).  Although this is my view as well (separate standards apply whether IHL applies or not), there is a growing wave of legal thought in Europe that views IHL and human rights law as co-applicable in many situations like this.  Although this co-application idea is well-regarded in many parts of the world it is much less accepted in the United States, so it is perhaps wise for the plaintiffs to have avoided it explicitly in the complaint.  But it will be interesting to see if the co-application strategy nonetheless shows up in subsequent arguments in the case.


Marty Lederman said...

Jens: What practical effect would "coapplication" have? One possibility, of course, is that in deciding whether, e.g., a killing was "arbitrary" for purposes of IHRL, one would look to whether it was done in compliance with the laws of war. (See the ICJ rationale in the nuclear weapons opinion.) In which case, "coapplication" wouldn't have much of a substantive effect.

Are there any European nations, or judicial precedents, that have expressed the view that LOAC-compliance is inadequate in an armed conflict, in cases of "coapplication"? If so, what additional constraints are said to apply by virtue of IHRL?

Jens David Ohlin said...

More later, but here's one: arrest and trial.

Marty Lederman said...

arrest and trial? Some European nations or courts are of the view that in a NIAC one must arrest and try members of enemy forces (no matter how feasible that wold be?) rather than use force against them at all? I seriously doubt that . . . and so I'm not sure what you have in mind here.

Jens David Ohlin said...

Assuming feasibility.

Jens David Ohlin said...


Let me expand. First, I am mostly referring to scholarly opinion here, not official government positions (though I am not categorically excluding the latter, just saying that I am unaware of examples). Second, the idea would be that I think there is a growing view in Europe that standards in NIAC are governed in part by IHRL, in particular the right to life but also other more specific requirements of human rights law regarding due process, that can and should be used as a gap-filling mechanism where IHL rules regarding NIAC are under-codified or under-developed, etc. This idea was referred to, though not evaluated, in Chapter IX of the ICRC interpretative guidance on DPH (you know the sentence). That's all I mean to refer to.

Just to be clear, I am not endorsing this view, just referring to it.

Do you think my description is accurate?

Marty Lederman said...

The ICRC study merely stated that "although this interpretive Guidance concerns the analysis and interpretation of IHL only, its conclusions remain without prejudice to additional restrictions on the use of force, which may arise under other applicable frameworks of international law such as, most notably, international human rights law or the law governing the use of interstate force (jus ad bellum)."

This statement does not take any position on whether IHRL "co-applies" in an armed conflict (a notion that I'll accept for purposes here), let alone speak to the question I raised, which is whether there's any European view, or consensus, that the Nuclear Weapons opinion erred in suggesting that LOAC-compliance would *satisfy* IHRL requirements. (An LOAC-compliant use of force in an armed conflict is not, for instance, an "arbitrary" deprivation of life in violation of ICCPR article 6(1), on this ICJ view.)

You have not yet identified any European views -- even of academics, let alone nations or tribunals -- that would impose any greater constraints. I'm not saying they're not out there (although I'd be surprised if any nation or tribunal has adopted them) -- I'm genuinely interested in learning what they might be.

I had thought that the efforts of some to deny the existence of an armed conflict (or to impose geographic limits on it) were the result of an acknowledgement that *within* an armed conflict, LOAC-compliance would satisfy international law, including any applicable IHRL. But perhaps that's wrong.


Jens David Ohlin said...

This viewed was expressed by some during the ICRC interpretive guidance meetings, no? Hence the statement in the report and the accompanying footnote? In any event, we are both aware of the same universe of sources regarding the interplay of IHL and IHRL. I don't have anything in particular in mind that you haven't read. We've both read the ICJ decisions; books by Lubell, Milanovic, etc.; the Goldstone report, etc. etc.

Jens David Ohlin said...

P.S. From the ICRC Interpretive Guidance: "During the expert meetings, some experts suggested that
the arguments made in section iX should be based on the human right to life."

From the Goldstone report: "In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice held that, in the context of armed conflict, IHL is lex specialis in
relation to human rights. It is today commonly understood that human rights law would continue
to apply as long as it is not modified or set aside by IHL. In any case, the general rule of human
rights law does not lose its effectiveness and will remain in the background to inform the
application and interpretation of the relevant humanitarian law rule. For instance, the preamble to
Additional Protocol II to the Geneva Conventions recalls the protection of international human
rights for the human person, supporting the view that IHL and IHRL are operative in situations
of conflict."

JJP said...

I came late to this inquiry, but one argument that the U.S. cannot be in an armed conflict with al Qaeda as such is that al Qaeda has not met the criteria for "belligerent" or "insurgent" status and does not even meet the Tadic test, as subsequently fleshed out in ICTY and other cases.
With respect to human rights, they apply in any social context -- but, under the ICCPR, what is an "arbitrary" deprivation of life? and who is within the "effective control" of the U.S. when it is flying a drone over a group of persons?