Assange and Wikileaks are "Enemy Combatants"

 

(Enemy combatants? Sure, all over the place!)

Newton Leroy Gingrich, former Speaker of the US House of Representatives, is notable for making incendiary comments on a whole range of policy issues. His recent comments on Palestinians as an "invented people" were outrageous enough, (and I was planning on writing about this at some point, but David Cameron and the EU got in the way), but his reported remarks this morning that Wikileaks' Julian Assange is an "enemy combatant" is breathtaking.

This blog has been critical of Wikileaks in the past; Assange in my view has been utterly irresponsible in releasing unredacted US diplomatic traffic - this always felt more about him than about open government. However, Gingrich has taken this to a whole new level: consider the implications of his actual statement. If Gingrich is correct, then:

- Assange can be legitimately targeted by US forces.

- Freedom of speech is where?

Fortunately, it's safe to say that Gingrich is wrong. It's not at all clear what his legal basis for this is - GC III, AP I or AP II? Gingrich could potentially make the case that the Assange was making a material contribution to US enemy action by releasing the US State Department archive that was leaked to him, allegedly by US Army Pvt Bradley Manning. In doing so, you could argue that Assange was taking a direct participation in hostilities, and therefore was targetable.

But I don't see it. Indeed, the reverse should be the case - freedom of expression is protected in Article 19 of the UDHR, amongst other places. Looks like Newt shooting from the hip, as usual.

USG opinion on killing Anwar al Awlaki: Part I

(Our source of the legal advice. A good, but unsatisfactory, start.)

On Saturday, the NYT published an article on the legal advice that underpinned the US attack in Yemen that killed Anwar al-Awlaki and Samir Khan. Unfortunately, the advice itself is yet to be published, so we can only comment on the NYT's extracts, but this is nonetheless an interesting start. Clearly, the legal advice on so sensitive a topic should be released, even if the intelligence and intelligence methods that are operationally critical cannot be disclosed.

We are told that the Department of Justice (DOJ) advice runs to "roughly 50 pages"; this is not surprising, as it has to address a number of difficult issues in international law - both LOAC and IHRL - and US domestic law as both Awlaki and Khan were US citizens. The first key point on legality is the supremacy of international law over US domestic law in these cases, as irrespective of the US legal position, if an action was illegal under international law, it would be illegal, period. Of course, there could be circumstances under which an action is legal under international law and illegal under US law, in which case US law would govern US government actions; however, the supremacy of international law over (any State's) domestic law means that the converse cannot be true.

"Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again."

As this blog has rehearsed, the challenge in determining whether or not it is legal to use force against an individual in an international or non-international armed conflict (IAC or NIAC) is down to their combatant status, by ensuring that States do not attack civilians. As the "Basic Rule" in Article 48(1) of the 1st Additional Protocol 1977 (AP I) states concisely for IACs,

"... the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

For NIACs, discrimination is found in Article 13 of the 2nd Additional Protocol (AP II). Only if someone has combatant status - defined for IACs in Article 43 of AP I, and by implication in Article 13(3) of AP II for NIACs - can they be attacked. Only once combatant status in an IAC through membership or in a NIAC by Direct Participation in Hostilities is established can a targeting decision move on to the questions of military advantage, proportionality and humanity.

Hence the importance of establishing Mr Awlaki's status as a "cobelligerent" with AQ. However, this raises more questions than it answers, begging the question of what is the belligerent status or otherwise of AQ and the United States - the implication is that AQ is involved in a transnational IAC, but this is unstated.

(Not all law enforcement operations need to look like this....)

But then the NYT report says this:

"The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located."

Which is odd, because this is the language of law enforcement and human rights law - that we need to arrest criminals and that the use of lethal force (the most significant violation of UDHR Art 3 and ICCPR Art 6(1) Right to Life imaginable) is only legitimate when killing a suspect is the only way to avoid an imminent threat to the lives of others (eg suicide bombers). So did the US consider Awlaki an IAC or NIAC combatant or not? And if not, on what imminence grounds did it use lethal force?

The NYT again:

"The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located."

If true, this is a troublingly expansive notion of imminence. Imminent threat to life in law enforcement practice has been understood to mean armed suicide bombers ready to detonate their bombs, or kidnappers holding a gun to the head of hostages. This is a million miles from someone who is "not in the midst of launching an attack at the precise moment he is located" - which is much more like the definition of an IAC combatant or a NIAC commander who is fulfilling a continuous combat function of an organised armed group, which brings us back to the key question of what type of conflict (if any) does the US believe it was engaged in with Mr. Awlaki?

Releasing the legal advice should answer this question. And only then we can discuss what the implications for US law are of killing US citizens in this manner.

Does nationality matter in drone strikes?

 (Should owning one of these exempt you from a CIA drone strike?)

It appears that as well as Anwar al-Awlaki, the drone strike that killed him also killed Samir Khan, a US citizen who was responsible for producing Al Qaeda in the Arabian Peninsula (AQAP) Inspire magazine. It is also reported that Ibrahim Hassan al-Asiri, AQAP's master bomb-maker was also killed in the same attack. Does it make any difference that al-Asiri was a Saudi, rather than a United States national?

As a matter of international law - and I am not in a position to comment on the position under US domestic law - I can't see that nationality is the problem, (or indeed, even relevant) to the question of the legality of the attack. The key element point of LOAC is either is one of combatant status in an International Armed Conflict* (IAC), or either having a "Continuous Combat Function" or Directly Participating in Hostilities in an Non-International Armed Conflict** (NIAC). Discrimination between combatants and non-combatants has is customary international law binding on all States. If there is no armed conflict taking place, then LOAC does not apply, and the use of force must be justified under International Human Rights Law (IHRL).

So to answer the first question, in international law, the nationality of the targets is immaterial: what matters is their status as combatants, or if this is a law enforcement situation, then their nationality is irrelevant to the crimes. Hence, US nationality is not per se a bar to being killed by a CIA drone strike.

Therefore, the legal basis of the attack that killed al-Awlaki, Khan and (reportedly) al-Asiri has two hurdles to cross. First, what was their combatant status or otherwise? Second, did the attack itself meet the proportionality, discrimination and military benefit requirements under the jus in bello tests. (In policy terms, there should also be a third test: "Is this a good idea?", but that's not explicitly a legal question.)

(A very interesting study, though one not without controversy)

What was the combatant status of al-Awlaki, Khan and al-Asiri?

The analysis of the combatant status (or not) of these three men begins with the characterisation of the conflict. Three are possible:

- There is an IAC underway between Al Qaeda and the United States, and that AQAP is an active constituent of this IAC in the ungoverned spaces of Yemen.  

- There is a NIAC underway in Yemen, in which AQAP is in rebellion against the legitimate Government, and that the US was acting in collective self-defence at the request of the Yemeni Government. 

- There is no armed conflict in Yemen, but that AQAP are operating as a terrorist group, and that this was a law enforcement operation in which there was no other way to defeat an immediate threat to life other than by killing al-Awlaki, Khan and al-Asiri. 

 (Chatham House, centre of much common sense and good work.)

What sort of conflict is actually going on?

The characterisation of the conflict is a key element in the legality of the strike. And this is why Chatham House's forthcoming study on the characterisation of conflict is so important - it's central to the targeting decisions of what / who can you hit, and when can you do it? Let's look at the three options in turn.   

(Aftermath of an armed attack: USS COLE towed from Aden)

International Armed Conflict?

The US could note that it had been attacked by AQ in Yemen in the attack on the USS COLE on 12 Oct 2000 (nearly a full year before the US 9/11 attacks), and that since that time, AQ, in the form of AQAP has been engaged in an IAC against the US from bases in Yemen, which Yemen has been unwilling or unable to suppress, and therefore the US has the right to self-defence against these attacks. 

This argument is considerably strengthened if it counts AQAP as an element of AQ, as a number of small scale terrorist attacks would not meet the threshold for armed conflict themselves, though a larger number of such attacks can. In recent years AQAP has been one of the most dangerous AQ elements, with the "Underwear Bomber" Umar Farouk Abdulmutallab's failed attack on 25 Dec 2009, and the Toner Cartridge Bomb Plot discovered and disrupted in October 2010. Moreover AQAP's leading ideologue - Anwar al-Awlaki was also cited by Roshonara Choudry (jailed in London in 2010 for attempting to kill the British MP Stephen Timms) as a key influence. 

However, the legal impact of declaring that the US in engaged in an IAC with AQ/AQAP would be that the US would have to accept that AQAP was a belligerent, meaning that any AQAP prisoners would have to have POW status until such time as an Article 5 Tribunal (so-named because it comes from Article 5, Third Geneva Convention 1949) has determined whether or not they were entitled to it. And in any event, even if such a Tribunal were to deem that AQAP prisoners were not POWs (e.g. they were mercenaries), then they are still covered by the basic guarantees of Art 75 of AP I as detailed in Art 45(3) of AP I. This is not something that the US has, to date, accepted (see: Guantanamo Bay).

Non-International Armed Conflict?

Under Art 1(1) of AP II, NIAC occurs between the:

... armed forces [of a High Contracting Party] and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Per the ICRC Commentary the insurgent group needs sufficient control of territory in order to be able to implement the Protocol's requirements. It is possible that in south eastern Yemen AQAP does indeed control the required territory, and that in the process it could do so. Under this characterisation, Yemen could request US assistance, and provided that there was sufficient evidence to conclude that these individuals were "direct[ly] participating in hoslities" then they could be attacked, subject to the usual jus in bello tests. But it is hard to see this as the best characterisation of the conflict, not least because of the explicitly international - and, indeed, US-specific - orientation of many of AQAP's operations.

  

(Others who have had trouble differentiating between law enforcement and the use of force...)

Criminals subject to a Law Enforcement Operation?

There are significant policy attractions to characterising AQAP as a criminal gang, and addressing the problem as a law enforcement problem, and not a military one - and not the least of which is that criminals are criminals, and that the US would deny AQAP the kudos of having a legitimate military struggle. Kevin Jon Heller of the University of Melbourne over on Opinio Juris thinks that what is going on against AQAP is "not an armed conflict at all".

It is certainly true that AQAP members and affiliates have committed acts that US and UK governments have classed as criminal, as the life sentence handed down to Roshonara Choudry in 2010 for attempting to kill the British MP Stephen Timms after reportedly being radicalised by Awlaki's video sermons, and the forthcoming trial of Umar Farouk Abdulmutallab demonstrate. But this glosses over a problem: in trying them as criminals tied to AQAP, the US and UK Governments are explicitly making the case that this is not a conflict, because if it was, these individuals would either be combatants, or the Governments involved would have to show why they were not - and why they should therefore be facing criminal trials. As combatants, let us be clear, they could still face war crimes trials for attempted murder - it's difficult to see either Northwest Airlines Flight 253 or Stephen Timms MP as legitimate targets.

In characterising these as criminal acts, and hence a law enforcement problem, the UK and US Governments raise a significant problem for the use of force, inasmuch as it significantly raises the bar for the use of force, as LOAC does not apply, leaving any use of force governed by IHRL rules. Though the right to life is clearly central to the exercise of the other rights, IHRL does not make the use of lethal force illegal in policing operations as some argue, but in all cases it will require the minimum use of force possible at all times, and that lethal force only be used in circumstances where there is no other method of preventing an immediate threat to life. In practical terms, this is given as the legal basis for killing suicide bombers (or suspected ones: this was the case in the case of Jean Charles de Menezes in London in 2005). Thus, though lethal force is allowed in some cases under IHRL, it demands a high evidential bar to be cleared of the imminence of the threat to life posed by those who are about to be killed.  

What was the applicable law in the view of the US in this case?
We don't know yet, as this hasn't been released (and if it has please let me know). It should be, for transparency's sake. However, with that large caveat in place, the operationally easiest thing would be for the US to decide that the correct characterisation of the conflict is that it is an IAC, such that they could target Awlaki et al as combatants at any time or place - which is where Jack L. Goldsmith (a former assistant attorney general in the George W. Bush) comes in.

But if true, what is troubling is the notion that there are two characterisations of the conflict - one for the leadership as an IAC or a NIAC - and one for the footsoldiers like Abdulmutallab, both of which would work in our favour. This feels like a legal nonsense, and it needs to be cleared up.

 (NB: Reapers don't just carry missiles - this one has 2 x GBU-12 Paveway II 500lb LGBs, too.)

So what?
At one level, many - indeed most westerners - may shrug their collective shoulders and conclude that Awlaki et al:

- These were bad guys;
- Thought that they were fighting a war and got killed by their opponents,
- Everyone who didn't agree with their worldview is safer (and probably better off)
- Besides, frankly these guys had it coming to them

This makes legal arguments at once irrelevant, and, to the extent that they constrain similar action in future, arguably dangerous. Therefore, there is not a particular problem in killing them, and we should be good with that. From a strictly realist / utlitarian viewpoint, there may be something to this position.

But as an international legal proposition, it is very dangerous, and for (at least) two reasons. 

First, knowingly creating a legal black hole to get around the law is a flagrant violation of the central tenets of the rule of law, and is always fraught with the opportunities for abuse -  see Guantanamo, CIA black sites - precisely because it makes the accountability of the State that the rule of law is based on virtually impossible. 

Second, being able to vary the legal characterisation of a conflict depending on who you're targeting is nonsense; unless there is a clear difference between the types of conflict that Awlaki and Abdulmutallab were involved in, it is nonsensical to use radically different legal characterisations of the conflict in order to make the use of force easier, whilst retaining the criminal option when you want to use it. 

For those who doubt either proposition, remember that international law is fundamentally about reciprocity. How would we feel about these propositions being applied to us by another power?

And for the record, I think the conflict with AQAP could be an IAC (though this raises interesting questions about POW status), could be a NIAC (though this raises difficulties about the relationship with Yemen, and whether AQAP actually controls any territory) or (my personal preference) it could be criminality below the level of a NIAC that requires police action - which raises all sorts of other questions over the legality of killing Awlaki et al. 

But what it can't be is more than one at once.

* See Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of the First Additional Protocol of 1977 (AP I) for the definition of a combatant in an IAC. Article 50 of AP I defines a civilian, and Article 48 of AP I restates the rule that military authorities shall direct their operations only against military objectives. 

**  See Article 13(3) of the Second Additional Protocol to the Geneva Conventions 1977.

Can we target and kill Colonel Gaddafi?

Foreign Policy Magazine asks whether it is legal to kill Colonel Gaddafi?

Well, it's blissfully straightforward.

(Sorry, wrong kind of "Yes!". Anyway, it's still "Yes.")

Umm, Yes. (Or at least "Maybe", depending on proportionality and military advantage.)

Colonel Gaddafi is both the de facto Head of State of Libya, and the de facto Commander-in-Chief of the Libyan armed forces. As such, he's a legitimate military target within the meaning of AP I, and within the remit of UNSCR 1973. Therefore, if the killing of Colonel Gaddafi was proportionate to the military advantage, and was proportionate to the risk posed to non-combatants, then yes, it will be legal.

More on Bin Laden's Death

(Another critique)

"Tobbes, it's the right answer for the wrong legal reasoning."

Story of my life.

I'm just travelling, but my critiquer's view is that yesterday's article reflects the US legal approach, and that there is a better approach based around bin Laden as an "unprivileged belligerent". But the problem that we run into revolves around the legal status of non-state actors in non-international armed conflicts.

I'll post more when I've had a chance to have a chat and a think.

Was killing Osama bin Laden legal?

(Osama bin Laden, now the subject of more conspiracy theories than Elvis.)

I write this after a delightful evening discussing this subject with some students at Bennington College, to whom and in particular to Professor Eileen Scully, I'm very grateful - it was good fun. Before we start, I should stress that this post considers only whether the US action in killing Osama bin Laden (OBL*) was legal, and not whether or not it was a good idea from a policy perspective.

To do this, we need to break the question into two elements: 

Question 1: Was it legal to kill bin Laden at all? 

Question 2: If so, was it legal to kill him in Pakistan?

Q1: Was OBL a Combatant?
The first consideration that must be satisified is whether OBL was a combatant in an armed conflict, in order to invoke the Law of Armed Conflict (LOAC). Without this nexus of conflict, the targeted killing of OBL would be illegal - murder.

(An armed attack. RIP.)

Fortunately, determining that OBL was involved in a conflict of some sort after his 1996 Declaration of War on the United States, and that 9/11 attacks is reasonably straightforward, though the kind of armed conflict is open to debate. LOAC recognises two categories of conflict, each with different definitions of combatants: International Armed Conflicts governed by the 1st Additional Protocol  to the Geneva Conventions (AP I, 1977), and Non-International Armed Conflicts governed by the 2nd Additional Protocol to the Geneva Conventions (AP II, 1977). 

Combatant Status under AP I - International Armed Conflict

War between States represents the classical form, preferably with armies of two or more competing sides fighting pitched battles, usually resulting in clear winners and losers. Under the formulation, both sides began the war holding territory, and from the 18th Century onwards, armies generally wore uniforms and had a clearly discernible chain of command. Wars of this sort still take place, of course - the initial invasion of Iraq in 2003 is a good approximation of the classical case, in which one force overwhelms and occupies another country, and imposes direct rule for a period. In this sense, it would've looked familiar to European diplomats negotiating the Peace of Westphalia in 1648. 

Who is a combatant in these interstate conflicts? Simply, anyone who is not in the military as defined in Article 43 of AP I. And if you're not a combatant you must initially at least be treated as a civilian, and would therefore be immune from direct attack. But being a combatant is a privileged status itself - it means that you're entitled to PoW Status, something explicitly denied to spies (AP I, Article 46) and mercenaries (AP I, Article 47).

The major attraction for lawyers is that combatants who are not prisoners, shipwrecked or otherwise hors d'combat are always specifically targetable. Any attack must meet the test of distinction, military advantage and proportionality, but this is true of all attacks: the important point is that in an international armed conflict the status of the combatant is constant for long periods of time.

Combatant Status under AP II - Non-International Armed Conflict

By contrast, the (much shorter) AP II is specific for those internal conflicts that rise above the minima of 

"internal disturbances and tensions, such as riots, isolated and sporadic acts of violence" 

described in Art 1(2) of AP II. AP II recognises that in many civil wars and rebellions, the rebels are frequently part-time combatants, and therefore AP II details in Art 13(3) that 

"Civilians shall enjoy th[is] protection ... unless and for such time as they take a direct part in hostilities."

In other words, in the limiting case, the point at which a guerilla puts down her weapon, she loses combatant status and reverts to civilian status. In doing so, she cannot be targeted and therefore cannot be legally killed. 

(An interesting book. One for a future commentary.) 

As a result, determining what constitutes direct participation in hostilities (DPH) is critical, and has resulted in a significant ICRC study published in 2009. (This study is not without controversy, but Art. 13(3) is clear enough for our purposes.)

Was OBL a combatant? Did he take a direct participant in hosilities?
It's clear that depending on the extent which OBL was involved in command and control (C2) and AQ fundraising (presumably determined by intelligence) one could make a case for that though he appears to have been holed in his Abbottabad Compound, he was involved in directing, funding and inciting attacks on western targets. Indeed, assuming that the courier network wasn't there exclusively to collect take-out pizzas, it is pretty likely that OBL had a direct role in hostilities.

If proved, this role would confirm OBL's status as a combatant in AP I, and for the period in which he was undertaking these activities, a combatant under AP II. As a result, I assess that given sufficient evidence, it could reasonably conclude that OBL was a combatant, and that irrespective of your characterisation of the type of conflict, OBL could be a legitimate target.

Naturally, once OBL became a legitimate target, any attack on him would need to meet the normal criteria of discrimination of civilians, military advantage and proportionality before it could be considered legal. And the reports that President Obama elected to send in ground forces in a much riskier attack rather than simply bombing the compound strongly suggests to me that these criteria were being very carefully weighed in the US decision-making process, and that the US elected to expose their forces to greater risk to ensure that the attack itself was proportionate, precise and legal. Good for them.

(Pakistani Foreign Minister Salman Bashir, Harrumpher-in-Chief.)

Q2: Was it legal to kill OBL in Pakistan?
With Pakistani Foreign Minister Salman Bashir, his diplomats and security leaders harrumphing that killing OBL in Pakistan 'violated Pakistani sovereignty' and was by implication illegal, it is important to assess these claims.

The first point is that there is no doubt that Pakistan's sovereignty was violated by US forces; they flew in in the middle of the night, didn't stop to have their passports stamped, engaged in a 40 minute firefight, killed a number of people, collected (ie, stole) a large amount of documents and electronic equipment, jumped into their helicopters (again, without having their passports stamped leaving Pakistan) and flew away into the night back to Afghanistan. This is a pretty major violation of Pakistani sovereignty.

But sovereignty is not absolute.

Pakistan has an obligation - in common with all other States - to ensure that its' territory is not used by non-State actors for the planning and commissioning of illegal activities, including terrorism. If it does not, there are two effects: first, under Article 8 of the International Law Commission's Draft Articles on State Responsibility, the State takes legal responsibility for these actions, and second, the State that is threatened can invoke the doctrine of "Self-Help" to remove the threat IF ALL OTHER AVENUES HAVE FAILED.**

Given that the Government of Pakistan in general - and elements of the Pakistani public sector, notably the military and the ISI spy agency in particular - have had a "complex" relationship with salafist jihadis since the 1980s (ranging from sponsorship, funding and training to full-blown conflict against them depending on the time, place and level of threat to Pakistan), it would be unsurprising if the US were to conclude that Pakistan was either unwilling or unable to confront OBL in his Abbottabad compound. Worse, given that the Pakistani security network was either incompetent or colluding with OBL, the US could not have had any confidence that simply providing a name and address would result in a successful Pakistani arrest operation. Consequently, the temporary violation of Pakistani sovereignty, whilst non-trival, was in my view justified, and that therefore the attack was legal as legitimate self-help.

Overall, then, on the narrow question of whether OBL was a legitimate target I would argue that he probably was, and that the manner in which the US conducted the operation in Pakistan was also legal.

*Yes, I know the other transliteration is Usama and therefore UBL. I prefer Osama and OBL, and it's my blog. Points? Questions? I thank you.

**Ang, this is for you. We can argue about self-help later.