USG Opinion on killing Anwar al-Awlaki: Part II

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43) 

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001. 

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status. 

 

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as, 

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." 

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.


* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.

Drone Strikes: A new international norm?

(Jeff Redfern - fired a Hellfire by mistake, became a legend*)

There's much ado about drones / UAVs / RPAs at the moment, especially as Americans are engaged in an interesting debate about whether the US Government killing American citizens without apparent due process, after the killings of Anwar Al-Awlaki and Samir Kahn in Yemen in late September. Indeed, there's an interesting piece on the leaked legal advice in today's New York Times which I'll come back to in the next couple of days. For background, this Economist piece is good.

The NYT has also published an interesting article on worldwide drone proliferation, which lists the US, the UK and Israel as the three states to date which have used drones for lethal attacks (US in at least in Iraq, Afghanistan, Pakistan and Yemen; UK in Afghanistan; Israel in Gaza and Lebanon), with many more States interested in acquiring the capability. Indeed, General Atomics Aeronautical (GA-ASI) have a nice website for all you aspiring Jeff Redferns out there...

But what caught my eye was this from Dennis M. Gormley, a senior research fellow at the University of Pittsburgh who the NYT quoted as: 

"“The problem is that we’re creating an international norm” — asserting the right to strike preemptively against those we suspect of planning attacks"

An international norm? Interesting, sounds like international law. As a claim, how does it stack up?

(The Peace Palace, home of the ICJ. It's architecturally absurd, but remarkable. Do go!) 

Sources of International Law

Article 38(1) of the Statute of the International Court of Justice is widely accepted as the authoritative statement of the sources of international law. These are:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Which is sufficiently broad to cover just about anything. However, "an international norm" clearly falls within the ambit of Art 38(1)(c), and if there's sufficient State Practice, then hey presto we've created international law.

So it that's the theory, what does this mean in this case?

Probably not much. At least, it shouldn't mean much, as what the US is doing with it's drone strikes should not be random acts of violence against its politico-military opponents, but as permissible and proportional uses of force under LOAC. Indeed, far from being random, legitimate uses of force under LOAC, will, as usual require:

 - a conflict nexus as either International Armed Conflict or Non-International Armed Conflict;
 - military necessity,
 - humanity,
 - proportionality and
 - the ability to distinguish between military targets and civilians.

None of this changes with the use of drones / UAVs / RPAs; the rules are the same as they always were.

(Preventative warfare? Not big, clever or legal.)

What speaks volumes is the second half of Gormley's quote:

"asserting the right to strike preemptively against those we suspect of planning attacks"

I'm not at all certain the Obama Administration has reverted to the notion of preventative warfare that Bush (43) Administration advanced (to near-universal opprobrium) in 2002 and 2006. If Gormley were to show that this was the case, then the US would again be out on their own (and not in a good way). As far the claim that drones allow for the preemptive use of force outside of armed conflict because they are drones, this is risible: drone attacks are governed by the existing legal framework.

Moreover, any suggestion that drone attacks absent a conflict nexus are governed by anything other than International Human Rights Law (IHRL), which demands the use of minimum force at all times, and only allows for the use of lethal force in the exceptional cases of a clear and immediate threat to the lives of others which cannot be stopped in any other way, is also simply wrong. Quite how an IHRL-compliant lethal use of force by a drone could be justified is an interesting mental exercise, but it would have to be a circumstance in which an individual was imminently threatening the lives of others, that there was no alternative to use force, and the drone was the only option. The challenge here is that how would you know that from a drone alone? Hard to see, but the best that can be said is that it can't be excluded that there could be (extreme) circumstances in which IHRL-compliant drone attacks could be legal, but the onus will be on the attacker to demonstrate that such an attack was legal.  

But let's be clear, there is no new law here - drone attacks are more than adequately governed by the existing use of force framework, and notions of "preventative war" were - and remains - illegal. 

* But only in Doonesbury.

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.

Anwar Al-Awlaki is killed

(Anwar Al-Awlaki in happier times...)

At least according to the Guardian. It's interesting that the particular point made about Awlaki is his US citizenship, as if this exempted him from targeting as a leading member of Al Qaeda in the Arabian Penninsula (AQAP).

Interesting. I'll scribble some more when more is known.