Monday, 4 July 2016

‘…otherwise targetable…’: the curious case of the US and its expansive targeting practices

Within the last few days, the US government has released figures detailing its estimate of the number of civilians and combatants killed by drone strikes ‘outside areas of active hostilities’ (presumably Pakistan, Yemen and Somalia). While much commentary has focused upon the veracity of the figures given (many outlets estimate far higher numbers of civilian fatalities, for instance the Bureau of Investigative Journalism) I would like to draw attention to a rather curious phrase which features not in the White House’s statement itself, but in the document produced by the Office of the Director of National Intelligence which contains the figures.  The passage in question goes like this:
‘The U.S. Government draws on all available information (including sensitive intelligence) to determine whether an individual is part of a belligerent party fighting against the United States in an armed conflict; taking a direct part in hostilities against the United States; or otherwise targetable in the exercise of national self-defense.
This sentence seems to detail the US understanding of the way individuals may be targeted lawfully, according to international law.  It envisages three categories; the first two are unremarkable, but the third is, to my mind, pretty peculiar.  The US asserts that there exists a category of persons ‘otherwise targetable in the exercise of national self-defense’.  As will be shown, this does not fit with established law on who may and may not be targeted during an armed conflict.

The law which governs when a state may kill an individual during an armed conflict is known, prosaically, as… the law of armed conflict (LOAC) (or more poetically as the jus in bello; or more humanistically as international humanitarian law (IHL)).  Within the LOAC, there are clear rules detailing who may be targeted during an armed conflict (okay, they’re not always that clear, but they are if you ignore the vagueness... for our purposes they’re clear, alright?).  In the case of US drone strikes, the situation is a ‘non-international armed conflict’ (NIAC), in accordance with common Article 3 of the Geneva Conventions and relevant case law (see the Tadić case, Decision on Jurisdiction) as the fighting does not take place between two states.  In such a conflict, individuals may be targeted when they are: members of dissident armed forces (a category which does not apply in the areas in which drones are used); members of organised armed groups; or individuals directly participating in hostilities.  These categories arise out of treaty and customary law.  None of these categories resemble the notion of those ‘otherwise targetable’ posited in the DNI document.  So immediately it seems that the DNI document has revealed a method of targeting that operates outside of the legal framework.

The DNI document links those ‘otherwise targetable’ with ‘the exercise of national self-defense’, which suggests a cross-pollination from another area of law governing force.

It is axiomatic to those who study international law that there is a distinction between the LOAC and the law which governs the use of force in self-defence (jus ad bellum).  Indeed, they are two entirely separate areas of law.  The jus ad bellum provides criteria under which force may be resorted to—it governs the lawfulness of the resort rather than the specifics of the way force is used.  Generally, force is prohibited under Article 2(4) of the UN Charter but will be lawful if undertaken in self-defence, according to Article 51 of the Charter (or customary law).  This Article requires that, for self-defence to be lawful, there must have been an armed attack (itself a contentious concept) and that the use of force is necessary and proportionate to that attack.  It is the gateway which must be passed through before a state may use any force.  It is clear that the law of self-defence has no bearing whatsoever on who may be targeted; that is entirely within the purview of the LOAC.

So, is the US using a standard that governs the resort to force to determine a question of on-going force, to establish who may be targeted by armed drones?  It seems like it may be.  If so this would greatly expand the scope for targeting and allow the US to conduct strikes and call them legal if they were undertaken as part of an operation which was lawful under the jus ad bellum.  But, as we know, the jus ad bellum does not relate to the specifics of force—its remit ceases once force has been resorted to, at which point the LOAC takes over.  Taken to the extreme, the ‘otherwise targetable’ doctrine would mean that once force began in self-defence, any individual killed as part of the action would have been targeted lawfully.  To my mind, it recalls the concept of ‘naked self-defence’, proposed by Ken Anderson, in which lawful self-defence allows uses of military force but in the absence of an armed conflict (I reject this notion entirely: the use of military force outside of an armed conflict is almost certain to be illegal, regardless of whether the original resort was legal under jus ad bellum).  The idea that individuals (and let’s be honest here, we’re talking about civilians) are ‘otherwise targetable in the exercise of national self-defense’ appears to be an attempt by the US to create an extra-legal space in which actions may be justified as not unlawful by virtue of the fact that norms of international law have been bypassed.  It is hallmarked by broad categories (‘otherwise targetable’, how broad is that?!) and confusion.  It represents the fostering of uncertainty in a clear drive to influence the discourse surrounding extraterritorial drone strikes in a way that makes them appear generally legal. 

I am surprised that this phrase has not caused more of a storm, it’s incongruity on the legal landscape is stark.  It is no wonder that the US has managed to produce civilian casualty statistics so different from those proffered by NGOs: its categorisation of those who are lawfully targetable by drones is vast.

The implications of the inclusion of this phrase within the US targeting policy are very dire indeed.  Drones will continue to be used, as long as the enemies of the US reside in hard to reach areas.  Meanwhile the legal frameworks in place to protect civilians and mitigate the consequences of war are gradually eroded, to be replaced by a soup of interpretations in which (borderline) unlawful, indiscriminate and trigger-happy uses of force can be relabelled as precise, clinical and neatly legal.  I am alarmed; I wonder if others agree? 

A fairly accurate depiction of the present author's feelings on US targeting policy

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