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.

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.

"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

Israeli Settlements are illegal. Points? Questions?

(Israeli settlement of Migron*. Even the Israeli Supreme Court agrees this one is illegal.)

I've been asked a couple of times about whether or not the Israeli settlements built on territory occupied in the 1967 Six Day War are legal, and if not, why not - given that the Israeli Government distinguishes between legal and illegal settlements in the West Bank.

The Israeli Ministry of Foreign Affairs marshals an extensive argument on their website explaining why Article 49(6) of the Fourth Geneva Convention 1949 which forbids an occupying power from "deport[ing] or transfer[ing] parts of its own civilian population into the territory it occupies" doesn't apply in the West Bank, the Golan Heights (and formerly, Gaza). The Israeli MFA's claims that:

"The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted."

This is arguably true but irrelevant. It is interesting that even the Israeli MFA makes the case that ancestors - presumably back to biblical times - present a legal basis for the appropriation of land and the construction of settlements. In legal terms this is a nonsense, and in practical terms it is hopeless - it would appear to give Italians legitimate title to most of the Mediterranean world, for instance.

The Israeli MFA goes on:

"Nor does [Article 49] prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land."

There are at least two problems with these assertions. First, the Israeli MFA in asserting that the territories it occupied in 1967 were "not under the legitimate sovereignty of any state" implies that it was terra nulius. Simply put, this isn't true: in 1967 the West Bank and East Jerusalem were either under the sovereignty of Jordan, or it was illegally occupied by Jordan with rights reverting to the previous legitimate sovereign. (I assume that in this case the previous legitimate sovereign was the UN as the League of Nations mandate was handed back by Britain, though I'd have to do some more work on this.) In any event, the West Bank and the other other occupied territories were not terra nulius - because if they had been, then in 1967 the UNSC would not have passed Resolution 242 calling for the withdrawal of Israeli forces from "territories occupied in the recent conflict".

Second, the record is clear that Israel does appropriate Arab land, and has used it for building settlements. 

In any event, the UN Security Council made clear in 1967 that the Geneva Conventions applied to the occupied territories in Resolution 237, and in 1979 that the settlements are illegal in Resolution 446, OP1 of which reads that the Security Council

 "Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East."

Indeed - and the situation has only deteriorated since then. 

*Migron is significant as in a major victory for Peace Now, the Israeli Supreme Court ruled in August 2011 that Migron was illegal and demanded that the Israeli government remove it by April 2012, which is the first time this has happened in the West Bank.

Words have meanings. And Consequences.

(UN General Assembly. Bring your own seat chair. Sit anywhere. Or something.)

Well, hasn't it been an interesting couple of days? If he's achieved nothing else, then PA President Mahmoud Abbas (Abu Mazen) has put the need for a two-state solution back at the centre of the international agenda for the first time in at least the last 12 months - indeed, with the Arab Spring, it's hard to say that even the Middle East has been focussed on Israeli - Palestinian negotiations in 2011. 

I shan't bore you with lots of links to interesting stories: I assume that if you've bothered to read these blog posts, you're probably interested enough in the subject to read a range of views and therefore you hardly need me to drive the point home. And I must stress again that this is an international law blog, rather than a politics blog... which I appreciate may be a fine line to tread, but at base it looks at the legal arguments first, and if it is to make political commentary, to do so second. 

So with that out of the way, I was shocked not by Texas Governor Rick Perry's "Likud right or wrong" speech in which Perry accused President Obama of "appeasement", or by Perry's apparent suggestion that that he wanted Jerusalem “united under Israeli rule” (in contravention to US policy and UNSCR 478 (1980)); Perry seems to be a loud-mouth dimwit, even if he is running for the US Presidency. 

Altogether more shocking is by US House of Representatives Resolution H Res 112-394 introduced on 8 September by Illinois Republican Joe Walsh (below). 

(Annexation? Sure, help yourselves!)

H Res 112-394 enjoys more than 30 co-sponsors, and resolves, 

"That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations."

Supports annexation? Excuse me? And as an implict punshiment for the PA pressing for "unilateral recognition of Palestinian statehood at the United Nations"? Pardon? Really?! Really?!?  

So let's look at the legal issues. All of this, it must be recalled is in territory captured by the Israeli Defence Force in the 1967 Six Day War, and subsequently occupied. Therefore, the controlling law remains the Fourth Geneva Convention (1949) (GCIV), which is binding on all states - including Israel.

  

Annexation 

The UN Charter, in outlawing aggressive wars in Article 2(4), made the acquisition of territory through conquest illegal for the first time in human history. Since 1945, therefore, annexation has also been illegal.*

In Geneva Convention Law, GCIV Article 47 forbids the removal of the population's rights under the Geneva Conventions by "any annexation by the latter of the whole or part of the occupied territory", making annexation not just illegal under the UN Charter, but also making any attempt to implement this illegal policy a crime under Geneva Law, too.

GCIV Article 49 deals with expulsions, evacuations and population transfers in its six paragraphs. It is illegal to permanently move a populations out of their occupied territory, though there are specific rules about evacuation for protection, e.g. in the case of continuing military operations. These evacuations must be temporary, and abide by international safeguards.

(On a tangent, reading Article 49 can be slightly confusing, in that the first five deal with the protection of the population under occupation, and the sixth paragraph prohibits an occupying power from transferring their population into the conquered territory; it is a Art 49(6) that makes all Israeli settlements in the West Bank and the Golan Heights (and prior to 2005, Gaza) unambiguously illegal under international law.** This nearly led Art 49(6) to become its own article in GCIV, but in the drafting conference, it stayed where it is.) 

Annexation as a collective punishment. 

Any annexation of the West Bank would, on the basis of Israeli policy in the area of East Jerusalem that the Israeli Government claims to have annexed, (and which no-one else in the international community accepts, hence the reason that Embassies in Israel are in Tel Aviv, not Jerusalem), be deprived of significant civil and political rights. This amounts to a form of collective punishment, which GCIV Article 33 expressly prohibits, demanding that "No protected person may be punished for an offence he or she has not personally committed."

So has Joe Walsh incited war crimes?

Incite: to stir, encourage, or urge on; stimulate or prompt to action: to incite a crowd to riot (Courtesy of Dictionary.com)

 

It is clear that any Israeli annexation would be unambiguously illegal, and in (i) wrongly asserting that annexation is a "right" of the Israeli state, and (ii) to link this illegal action to an illegal collective punishment, it is arguable that Representative Walsh and his colleagues are indeed inciting such - illegal - action. The question is, would this amount to what the Geneva Convention would describe as "grave breaches"? I'm not sure, and will ask some experts.

However, if it does - and both ICTR and ICTY jurisprudence has cases on incitement - arguably Congressman Walsh and his con-sponsors should be subject to action by the US Government under its obligations laid out in Common Article I of the Geneva Conventions, which requires, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." 

Oops. 

Perhaps someone may want to tell the Congressman.... 

* Only the Indian annexation of the Portugese colony of Goa being broadly recognised by the international community, and with the understanding that this was in effect decolonisation. 

** In a tragic irony, the first paragraph of the Art 49(6) ICRC commentary explains the historical background, and why Art 49(6) was included in the first place:  

"This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." 

In other words, Art 49(6) was a direct repudiation of Hitler's policy of Lebensraum settling Germans and ethnic Germans across central and eastern Europe.