1 Charli Carpenter, “Fighting the Laws of War: Protecting Civilians in Asymmetric Conflict,” Foreign Affairs (March/April 2011) 152.
2 An Interview with Martin E. Dempsey, Prism 2, No. 1 (December 2010) 154. General Dempsey became the 37th Chief of Staff of the U.S. Army and has been selected to be the next Chairman of the Joint Chiefs of Staff in September 2011.
3 The Chairman of the Joint Chiefs of Staff Instruction, Standing Rules of Engagement for U.S. Forces, CJCSI 3121.01A, January 15, 2000, A-3.
4 Ibid. at A-5.
5 The term “terrorism” as used in this chapter refers to acts having four characteristics: “a fundamentally political nature, the symbolic use of violence, purposeful targeting of noncombatants, [and] carried out by nonstate actors.” Audrey Cronin, How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, 2009) 7.
6 In this chapter, the author uses the term “law of war,” but other commentators use the “law of armed conflict” or “International Humanitarian Law.” The author choose “law of war” because this is the terminology used in the U.S. military.
7 “State” is a technical legal term meaning a land mass recognized by the United Nations Charter as a member state.
8 Philip Alston, “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings,” UN General Assembly, Human Rights Council, May 28, 2010 (A/HRC/14/24/Add.6) 3 (hereafter, Alston UN Report). See Nils Melzer, Targeted Killing in International Law (Oxford University Press, 2009) 5: “the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them.”
9 Eben Kaplan, “Targeted Killings,” Council on Foreign Relations Background Paper (March 2, 2006)1.
10 At this stage of discussion, a civilian is someone who is not targetable under the law of war.
11 A belligerent can be an individual, group, or some entity which acts in a hostile manner, such as engaging in war-like acts.
12 Michael H. Hoffman, “Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction With Implications for the Future of International Humanitarian Law,” 34 Case Western Reserve Journal of International Law, 227, 228 (Fall 2002).
13 Tyler Harder, “Time to Repeal the Assassination Ban of Executive Order 12333: A Small Step in Clarifying Current Law,” Military Law Review, Vol. 172 (Sumer 2002) 12.
14 United States Senate, Report No. 94–465, “Alleged Assassination Plots Involving Foreign Leaders,” Washington, D.C.: U.S. Government Printing Office, November 1975, 282.
15 Matthew J. Machon, “Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror,” Monograph for the School of Advanced Military Studies, Fort Leavenworth, KS (AY 2005–06) 18.
16 Executive Order 11905 (February 18, 1976).
17 Machon, supra n. 15, 20. The word “political” has been removed from the executive order and now there is simply a ban on assassinations.
18 Nathan Canastaro, “American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo,” Boston College International and Comparative Review, Vol. 26, No. 1 (Winter 2003) 11–13.
19 The Hughes-Ryan Amendment of 1974, Pub. L. No. 93–559, Sec. 32, 88 Stat. 1804 (1974).
20 Scott Shane, “U.S. Approves Targeted Killing of American Cleric,” The New York Times, April 6, 2010, 6A.
21 Shaykh Anwar al-Awlaki, “The New Mardin Declaration: An Attempt at Justifying the New World,” Inspire, Fall 1431 (2010), Issue 2, 3. See Declaration of Professor Bernard Haykel, Nasser Al-Awlaki v. Obama, No. 10-cv-01469 (JDB), United States District Court for the District of Columbia (October 7, 2010) 3. This chapter will not discuss whether Mr. al-Awlaki can be targeted as a U.S. citizen living abroad. The proposals of this chapter will be layered on existing international law.
22 Sudarsan Raghavan, “Cleric Says He Was Confidant to Hasan,” Washington Post, November 16, 2009, A3.
23 Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss, Nasser Al-Awlaki v. Obama, Civ. A. No. 10-cv-1469, U.S. District Court for the District of Columbia, filed September 24, 2010, 8 (quoting the director of the National Counterterrorism Center, Michael Leiter before the Senate Homeland Security and Government Affairs Committee on September 22, 2010).
24 Designation of Anwar al-Awlaki as a Specially Designated Global Terrorist, pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Federal Register 43233, 43234, Number 141 (July 23, 2010).
25 This is why the Church Committee focused on intelligence organizations and not the armed forces. In this chapter, the terms “war” and “armed conflict” are synonymous.
26 W. Hays Parks, Memorandum on Executive Order 12333 and Assassination, 8 (on file with author).
27 Greg Travalio and John Altenburg, “Terrorism, State Responsibility, and the Use of Military Force,” Chicago Journal of International Law, Vol. 4, No. 1 (Spring 2003) 109.
28 Judgment, Public Committee Against Torture in Israel v. Israel, HCJ 769/02, (2005) ISrSC, para. 22.
29 Geoff Corn, “Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict,” 1 Journal of International Humanitarian Legal Studies 52, 85 (2010).
30 Ibid. at 78.
31 The Fourth Amendment to the Bill of Rights states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” U.S. Constitution. For the international law context, see The International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 6.
32 Corn, supra n. 29, 77.
33 Gabriella Blum and Philip Heymann, Law and Policy of Targeted Killing, Laws, Outlaws, and Terrorists: Lesson from the War on Terrorism (Boston, MIT Press, 2010) 10.
34 Thomas D. Petrowski, “Use-of-Force Policies and Training: A Reasoned Approach,” 71 F.B.I. Law Enforcement Bulletin, No. 10 (October 2002) 26.
35 Graham v. Conner, 490 U.S. 386, 396–7 (1989).
36 Alston UN Report, 23.
37 Ibid. at 5.
38 Alston states that a “State killing is legal only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).” Ibid. at 11.
39 Authorization for the Use of Military Force, Pub. L. 107–40, 115 Stat. 224 (2001), sec. 2(a).
40 The Obama Administration has addressed this justification in two forums: filings in federal court in the case of Al-Awlaki v. Obama, Civil Action No. cv 10–1469 (December 7, 2010) (this civil case brought by the father of American cleric Anwar al-Awlaki’s—spelled Al-Awlaki in court filings—was dismissed for lack of standing, among other rationale, but included the position of the U.S. Government to target Mr. al-Awlaki’s son being premised on the concept of self-defense) and the statements of Administration officials. (Harold Koh, Legal Advisor to the Department of State, “The Obama Administration and International Law,” Keynote Speech at the Annual Meeting of the American Society of International Law (March 24, 2010)).
41 Corn, supra n. 29, 94.
42 Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85.
43 W. Hays Parks, “Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect,” New York University Journal of International Law and Politics, Vol. 42 (Spring 2010) 780.
44 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226, 257.
45 The Public Committee Against Torture in Israel v. Israel, Judgment of the Supreme Court, A. Barak for the Court (December 11, 2005) para. 23.
46 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 48 and art. 51(2), December 12, 1977, 1125 U.N.T.S. 3 (hereafter Protocol I); Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 13(2), December 12, 1977, 1125 U.N.T.S. 609 (hereafter Protocol II). The additional protocols have not been ratified by the United States, but the articles discussed in this chapter are considered customary international law.
47 Nils Melzer, International Committee on the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, adopted on February 26, 2009, International Review of the Red Cross, Vol. 90, No. 872 (December 2008) 1002 (ICRC Guidance).
48 ICJ Use of Nuclear Weapons, 257.
49 Protocol I, art. 43(1).
50 Commentary to Additional Protocol I, 515.
51 Protocol I, art. 43(2).
52 Protocol I, art. 51(1).
53 M. Cherif Bassiouni, “The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors,” 98 Criminal Law 711 (2009).
54 Protocol I, art. 44(2).
55 Ibid., art. 44(4).
56 Anthony H. Cordesman, “The Gaza War: A Strategic Analysis” Center for Strategic and International Studies, February 2009, available at <http://csis.org/files/media/csis/pubs/090202_gaza_war.pdf> accessed November 3, 2011.
57 Although, as noted by Professor Geoff Corn, the term “combatant” does appear in the commentary of art. 13.
58 Alston UN Report, 19.
59 Draft Art. 25(1). O.R., Vol. XV, 320 (CDDH/215/Rev. 1).
60 ICRC Guidance, 1003–04.
61 Geoffrey Corn and Chris Jenks, Two Sides of the Combatant COIN: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflict (forthcoming)(unpublished manuscript on file with author).
62 Protocol II, art. 13(2).
63 Ibid., art. 13(3).
64 Targeted Killing Case, para. 40.
65 Michael N. Schmitt, “Deconstructing Direct Participation in Hostilities: The Constitutive Elements,” 42 New York University Journal of International Law and Policy 697, 705 (Spring 2010).
66 Targeted Killing Case, para. 35.
67 Ibid., para. 39.
68 Ibid.
69 Blum and Heymann, supra n. 33, 7.
70 Geoffrey Corn, “Targeting, the Reasonable Commander, and the Missing Quantum of Proof Component,” 5 (forthcoming).
71 Declaration of Jonathan Manes, The Joint Targeting Definitions and Process, Nasser Al-Awlaki v. Obama, No. 10-cv-1469 (JBD)(October 8, 2010) 10.
72 Blum and Heymann, supra n. 33, 7.
73 Parks, supra n. 43, 780.
74 Ibid., 786 (citing Pictet’s argument during the 1974–1977 Diplomatic Conference).
75 European Court of Human Rights, McCann and Others v. The United Kingdom, ECHR 385 (1995).
76 Nils Melzer, supra n. 8, 23 (citing ECtHR, McCann case, Secs. 150, 194, 213f).
77 Parks, supra n. 43, 789.
78 Targeted Killing Case, para. 22.
79 Ibid., para. 18.
80 This is Hays Park’s interpretation of what the Interpretive Guidance does, taking from Jean S. Pictet’s theoretical use-of-force continuum articulated during the negotiations of the additional protocols: “Humanity demands capture rather than wounds, and wounds rather than death; that non-combatants shall be spared as much as possible; that wounds shall be inflicted as lightly as circumstances permit, in order that the wounded may be healed as painlessly as possible; and that captivity shall be made as bearable as possible.” Parks, supra n. 43, 785.
81 ICRC Guidance, 1040.
82 Corn and Jenks, supra n. 61, 3.
83 Parks, supra n. 43, 829.
84 This concept, lex specialis, “stems from a Roman principle of interpretation, according to which in situations especially regulated by a rule, this rule would displace the more general rule ...” C. Droege, “The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict,” 40 Israel Law Review 310, 338 (2007). See also Parks, supra n. 43, 797–8.
85 Corn, supra n. 29, 78.
86 Alston UN Report, para. 29.
87 Corn, supra n. 29, 104.
88 World Bank ranks Yemen in the bottom quarter of states in the world for degree of governance. See <http://info.worldbank.org/governance/wgi/sc_chart.asp> accessed November 3, 2011.
89 U.S Department of Defense, Manual for Military Commissions Sec. 6(a)(13)(d)(2009).
90 Targeted Killing Case, para. 27.
91 U.S. Department of the Army Field Manual, 27–10, The Law of Land Warfare 4 (June 18, 1956) (C6, July 15, 1976).
92 Protocol I, art. 51(b)(6). This is referred to as proportionality, as well, but the author does not use the term in this chapter because it might confuse the reader. The author, instead, uses the term “unnecessary suffering” because it is the proportionality of force that must be considered vis-à-vis civilians.
93 Ex parte Quirin, 317 U.S. 1 (1942).
94 Glenn Sulmasy, The National Security Court System: A Natural Evolution of Justice in an Age of Terror (Oxford University Press, 2009) 56–8.
95 Ex parte Quirin, 45–6.
96 Ibid. at 30–1.
97 Norman G. Printer, J., “The Use of Force Against Non-State Actors under International Law: An Analysis of the U.S. Predator Strike in Yemen,” 8 UCLA Journal of International Law and Foreign Affairs 331, 363–9 (Fall 2003)(defining unlawful combatant as a “person who takes up arms, without authority, in defiance of the law of war. Because an unlawful combatant uses force without legal justification, he or she may be held liable for the unlawful use of force.”).
98 Antonio Cassese, International Law, 2nd edn (Oxford Press University, 2005) 409. There is also the policy argument that the “criminalization of belligerency creates perverse incentives for the unlawful combatants: because their very participation in the hostilities subjects them to criminal prosecution upon capture, they have no incentive to comply with the law of war.” Derek Jinks, “The Declining Significance of POW Status,” 45 Harvard International Law Journal 367, 438 (2004).
99 U.S Department of Defense, Manual for Military Commissions Sec. 6(a)(13)(d)(2009).
100 Blum and Heymann, supra n. 33, 7.
101 Targeted Killing Case, para. 28.
102 Ibid.
103 Blum and Heymann, supra n. 33, 8.
104 Targeted Killing Case, 28.
105 Laura M. Olson, “Guantanamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?,” 22 Case Western Reserve Journal of International Law 197, 212 (2010). Olson does an excellent job of explaining how the D.C. District Court has interpreted membership in the fighting forces of the enemy.
106 Hamdan v. Rumsfeld, 548 U.S. 557, 628–31 (2006) (“conflict not of an international character”).
107 ICRC Guidance, 1002.
108 Ibid.
109 Ibid.
110 Ibid. at 1002–03.
111 Ibid. at 1006.
112 Ibid.
113 Ibid.
114 Corn and Jenks, supra n. 61, 8.
115 ICRC Guidance, 1007.
116 Ibid.
117 Ibid.
118 Ibid. at 1022.
119 Ibid. at 1021.
120 Ibid. at 1008.
121 Corn and Jenks, supra n. 61, 16.
122 Press Release, U.S. Department of State, Listing of Al Qaeda in the Arabian Peninsula (July 20, 2010).
123 ICRC Guidance, 1019 (defining direct causation).
124 Commentary to Protocol I, para. 1942 (emphasis added).
125 Nils Melzer, “Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities,” 42 New York Journal of International Law and Politics, 831, 850 (Spring 2010).
126 Ibid.
127 Corn and Jenks, supra n. 61, 16.
128 Kenneth Watkins, “Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretative Guidance,” 42 New York Journal of International Law and Politics 641, 642 (Spring 2010).
129 Ibid. at 643.
130 Ibid. at 645.
131 Corn and Jenks, supra n. 61, 2.
132 Watkins, supra n. 128, 691.
133 Ibid.
134 ICRC Guidance, 1007.
135 Watkins, supra n. 128, 692.
136 For purposes of this chapter, armed conflict with a group like Al Qaeda is presumed between the state and the group.
137 e.g., the Mothers of the Plaza de Mayo of Argentina protesting the “disappeared” children of the Dirty Wars. John Charles Chasteen, Born in Blood & Fire: A Concise History of Latin America (New York: W.W. Norton and Company, 2006) 290.
138 It is the opinion of the author that all of these are low-threshold issues to meet, given the ease of broadcast (to create the group), the speed of communication (to organize the group); and the lack of expense to acquire weapons (to arm the group). But the analysis must be done by the state.
139 Watkins, supra n. 128, 692.
140 Ibid. at 691.
141 Hamlily v. Obama, 616 F. Supp. 2d 63, 75 (D.D.C. May 19, 2009) (citing Gherebi v. Obama, 609 F. Supp. 2d 43, 68–9 (D.D.C. April 22, 2009)).
142 Watkins, “Opportunity Lost,” supra n. 128, 693. A non-state actor shifts the burden back on the state by showing he is no longer a member of the organized armed group. Although not fully discussed in this chapter, the author believes a starting place of analysis would be analogous to the defense of withdrawal within the law of conspiracy. In order to withdraw from a conspiracy, a person must have taken an affirmative action to disavow the purpose of the conspiracy (ceased his military function) and he must have taken such action before he or any other member of the scheme had committed any overt act (ceased taking part in hostilities). United States v. Read, 658 F.2d 1225 (7th Cir. Ill. 1981). The best articulation of this principle is the Israeli Supreme Court’s definition of what constitutes “for such time.” See supra nn. 18–20.
143 AP I, art. 51(5)(b).
144 Tactical Directive, Headquarters International Security Assistance Force (July 2, 2009).