Wednesday, September 28, 2011

"Targeted Killings" Legal Considerations: Part One Armed Conflict

 (MQ-9 Reaper: Radio controlled model airplanes were never this much fun in high school.)

“Targeted Killing” is a strange term. On one hand, it is a technocratic phrase used by commentators to describe what is described by the US Joint Special Operations Command (JSOC) in Professor Philip Alston's excellent essay on targeted killings as “kinetic counter-terrorist operations”* – evoking images of robotic planes blowing up terrorists / bad guys / evil doers in precision ("clinical") strikes, or Special Forces kicking in doors at night and "taking down" the aforementioned terrorists / bad guys / evil doers (T/BG/EDs, I suppose).  

On the other hand, “Targeted Killing” is an Orwellian obfuscation of language to camouflage the violent – and sometimes apparently random – deaths of large numbers in zones of conflict worldwide. Thus, Targeted Killings as a term can cover many things, ranging from the legitimate killing of enemy combatants through assassination of opponents to the murder of innocent civilians.

Finally, “Targeted Killing” is curious as a grammatical description – to define some killings as “targeted” immediately implies a differentiation from others that are “untargeted”, and therefore, (presumably) indiscriminate. Indiscriminate attacks run the serious risk of killing or injuring those who are not legitimate targets - which is a war crime. As this blog has covered in the past, under the Law of Armed Conflict (LOAC) the legal use of force is always targeted - so the very notion of a "targeted" - as opposed to an "untargeted" killing is somewhat confusing.

It is also emotive; killing is not a warm fuzzy word, and therefore, arguably the whole term is pejorative - and in the process we run the risk of missing the legal point. Fundamentally, how do "Targeted Killings" differ from any other combatant deaths? 

Let's look at the law.

(Professor Philip Alston, NYU; a good lawyer, who also writes beautifully.)

Conflict Nexus
The most important question is "what is the controlling law?" There are three possible answers:

- LOAC, when there is an International Armed Conflict (IAC), with the IAC rules;

- LOAC, when there is a non-International Armed Conflict (NIAC), with the NIAC rules;

- International Human Rights Law (IHRL), where there is no armed conflict (ie, any disturbances / riots are below the level for conflict), based on the 1948 UDHR subsequent international instruments (e.g. the ICCPR, CEDAW) and the regional charters (e.g. ECHR / ACHPR);

The key here is that under LOAC, "targeted killings" against combatants (IAC) or those taking an active part in hostilities (NIAC), are, subject to the proportionality and military advantage rules, legal. Under the peacetime policing rules of IHRL, the test for the use of lethal force is much tougher - is acceptable if it the only way to protect others from an immediate threat. 

Fundamentally, the legal problem under LOAC comes down to combatant status - or not - and with it, identification. If you successfully target and kill a senior enemy combatant, then you may well gain a measurable military advantage - similarly, if you were able to target individuals with specific high-demand skills (e.g. Yahya "The Engineer" Ayyaash, killed by the Israelis in January 1996), then you'll gain a disproportionate military advantage. 

But to achieve these disproportionate results, you need excellent intelligence, a precise understanding of the weapon's explosive effect - which as long ago as 2003 was detailed in the Seattle Times - and a judgement based on the likely number of civilian deaths (Collateral Damage) versus the military advantage to determine legality.

(T/BG/EDs? Pashtun civilians? Stag do? Hollywood extras? How can you tell?)

Role of Intelligence 
This is where things become difficult, in that the information used to conduct the target identification is likely to be highly classified intelligence, which by its' nature is unlikely to be released - and if material is occasionally declassified or leaked, then the manner in which it was collected and analysed will remain unclear, making an external assessment of its veracity difficult. After all, intelligence agencies rightly want to protect their sources and methods, for fear of losing access to a source or method in future.

Within these rules the challenge - as Alston's article details - is to ensure that the legal requirements are met, and that there is an appropriate level of oversight; ironically (in light of the Nicaragua Case) Ronald Reagan's notion of "trust but verify" is ever more important. The problem, of course, is that if the intelligence files are not openly available, then it is difficult or impossible to assess the targeting decision. Moreover, as the enquiries and cynicism predictably coalesce around those strikes that have gone wrong, (either because of a technical, intelligence or judgement error), then the lack of the intelligence basis for the targeting decision makes accurate ex-post assessment of the decision-making virtually impossible: all you'll see is the human - and civilian - toll. 

So "Targeted Killings" - if we must use the term - of combatants in IACs and NIACs are much less legally problematic than some would have us believe. But establishing oversight to ensure that the analytical framework behind these attacks is credible and produces legal strikes is critical - and that's where Professor Alston's essay is so useful.

I'll return to specifics later, along with the IHRL implications.

* Alston, p. 47

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