In Counter-Terror Efforts, is the U.S. Bound by the Law of War?
Last week, civil-rights attorneys filed a complaint before the D.C. district court announcing their intention to challenge the U.S. government’s authorization of the targeted killing of an American citizen residing in Yemen. Born in New Mexico and raised in the United States, Anwar al-Aulaqi, a Muslim cleric, may have been involved in the plot to bomb a flight to Detroit on December 25, 2009; however, since Mr. al-Aulaqi has never been tried before a court or tribunal, the accuracy of this and other allegations against him remains unknown. Leaving aside the constitutional questions raised by the government’s plan to execute an American citizen who has not been convicted of a capital offense, is the government entitled, under the law of war (also known as international humanitarian law), to conduct a lethal strike against a civilian who supports terrorism or has been involved in terrorist acts?
The answer, in most cases, is a clear and resounding “no.” The Supreme Court has ruled that the United States’ war against al-Qaeda qualifies as a “non-international armed conflict”—that is, an armed struggle between a state and a non-state actor that triggers certain obligations under international law. In particular, each party to the conflict is required to ensure that anyone who is not “taking [an] active part in hostilities” enjoys the fundamental protections set forth in Common Article 3 of the Geneva Conventions. One of these protections is a prohibition against subjecting any such person to “murder” or “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” There are no exceptions to this rule.
The International Committee of the Red Cross (ICRC), a body whose interpretations of humanitarian law are not binding but generally considered to be definitive, has clarified that in any non-international armed conflict, “all persons who are not members of [a country’s] armed forces or organized armed groups of a party to the conflict are civilians.” This means that they enjoy Common Article 3’s protections, including the prohibition on targeted attacks, “unless and for such time as they take a direct part in hostilities.” Even members of an “organized armed group” (such as al-Qaeda) are legally civilians and may not be targeted unless they serve a “continuous combat function,” meaning that they are continually – and not just regularly – engaged in “the preparation, execution, or command of acts or operations amounting to direct participation in hostilities.”
If the government’s claims about al-Aulaqi are true, then isn’t he directly participating in hostilities against the United States? Possibly. The ICRC’s definition of direct participation (which some scholars and human rights organizations actually regard as too broad) sets forth three criteria an act must fulfill in order to qualify:
- It is “likely to adversely affect the military operations or military capacity of a party to an armed conflict or . . . to inflict death, injury, or destruction” upon civilians or civilian objects;
- It is “specifically designed to directly cause” such a harm; and
- There is “a direct causal link between the act and the harm likely to result . . . from that act.”
If, as the government has claimed, al-Aulaqi recruited fighters for al-Qaeda or conspired to commit attacks on civilians, then he may indeed have engaged in direct participation in hostilities. However, since there is no indication that al-Aulaqi serves a “continuous combat function” in the manner contemplated by the law of war, the United States would only be entitled to target him “during and for such time” as he was engaged in these activities. In other words, it could not legally hunt him down and kill him while he was sleeping, eating, preaching (regardless of the views he promoted), fleeing, or otherwise not actively and directly participating in the conflict.
Furthermore, even if the government managed to locate al-Aulaqi as he was directly engaging in hostilities, it would not – under prevailing interpretations of international law – be permitted to kill him if any non-lethal means of capturing or disabling him were available. The European Court of Human Rights reached this conclusion in an influential 1995 decision finding the United Kingdom liable for the shootings of three Irish Republican Army operatives who were allegedly preparing to detonate a car bomb, and the Supreme Court of Israel followed suit in a 2006 case involving fatal “preventative strikes” against terrorists in the Gaza Strip and other areas. “[A] civilian taking a direct part in hostilities,” the Israeli court ruled in a widely-cited opinion, “cannot be attacked at such time as he is doing so, if a less harmful means can be employed. . . . Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed.”
If the United States kills al-Aulaqi when he is not directly participating in hostilities, or without giving him a full and fair trial that results in a conviction, the act of killing him will violate the international law of war, by which the U.S. is bound. The Obama Administration must not order or facilitate such an unlawful act, and the American public should not countenance it.