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