A Functional Method for Defining the Authority to Target

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I agree with much of what Professor Amos Guiora says, but I disagree with the method he uses to get there. And I believe the method matters. Guiora assesses targeting operations under an “active selfdefense” paradigm, with elements from both the jus ad bellum (the law governing the use of force) and the jus in bello (the law governing the conduct of hostilities). Under Guiora’s paradigm, a state may target terrorism suspects in anticipatory self-defense if: (1) targeting is proportional to their threat; (2) collateral damage is minimized; (3) alternatives to targeting are infeasible; and (4) military necessity justifies the action. Guiora does not explain why that paradigm is the correct one.
    In fact, the ad bellum rules on defensive force probably do not govern Guiora’s poster-child case—the U.S. operation targeting Anwar al-Awlaki in Yemen. The jus ad bellum does not constrain the use of force by one state in another state where that second state consents. Yemen appears to have consented to the operation against Al-Awlaki. Moreover, neither the jus ad bellum nor the traditional jus in bello requires a state to consider alternatives to lethal force— Guiora’s third criterion—if someone is a legitimate target. Finally, though Guiora argues that someone’s membership in al Qaeda is an insufficient basis for targeting him, many in bello experts treat membership in an organized armed group as dispositive. Rather than reflect existing law, then, Guiora’s model is some kind of “hybrid.” He has presented his own normative vision on when targeting should be lawful.
    I assume that Guiora developed that hybrid because he believes that the traditional wartime paradigm—designed for interstate wars— is poorly suited for the fight against al Qaeda. Similarly, I assume that Guiora rejects international law’s presumptive alternative—applying human rights law—because he believes that it, too, is inapposite. The human rights norms on targeting were developed for law enforcement settings. They would prohibit operations that Guiora would permit. For example, human rights law generally prohibits a state from targeting someone who is not on the verge of killing. Guiora does not require that kind of imminent threat. But Guiora does not explain why his model is preferable to the alternatives. Why should decision makers assess targeting operations using his four criteria, instead of applying the conventional wartime paradigm, the law enforcement paradigm of human rights law, or a hybrid advanced by someone else?
    In other work, I argue that the current method for assessing targeting operations—which requires first identifying the correct legal paradigm and then applying the norms as specified for that paradigm— is misguided.6 The method presumes that international law’s different paradigms operate independently and sometimes incompatibly. But as I demonstrate, three core principles animate all the international law on targeting: the jus in bello for combatants, the jus in bello for civilians, and human rights law.

  • The liberty-security principle identifies the outer bounds of permissible state action. The security benefits of containing someone’s threat must be proportional to or outweigh the costs of life. Targeting usually satisfies that principle if the person poses an active threat of death or serious bodily injury. In that event, the security benefit of containing the threat (protecting life or limb) is proportional to the liberty cost (taking life).
  • The mitigation principle further restricts the authority to target by requiring states to try to lessen the liberty costs. States must try to contain threats using reasonable, nonlethal alternatives to targeting—most obviously, capture and detention. Reasonableness here depends primarily on two factors. One is the level of state control. The more control the state has, the more reasonable it will be to capture the suspect. The second factor is the relative efficacy of that alternative. States need not try to capture someone if doing so might compromise a security mission or fail to mitigate the liberty costs.
  • The mistake principle requires states to try to verify that: (1) the person being targeted (2) poses a sufficiently serious threat (3) that cannot reasonably be contained less intrusively. In other words, the state must exercise due diligence to avoid mistakes and establish a reasonable, honest belief that its conduct is lawful. That diligence is generally less when states act in the heat of the moment than with time for deliberation. With time, states have more opportunity to ensure the accuracy of their assessments and consider the alternatives.

    Those three principles govern all targeting operations but require different results depending on the facts. They may lead to results that Guiora would support. My liberty-security principle is similar to his proportionality criterion. My mitigation principle is like his criterion that states consider alternatives to targeting. And though none of his criteria specifically addresses mistakes, Guiora argues that states must gather and thoroughly analyze intelligence to ensure the accuracy of their operations. In substance, then, we seem to agree on quite a bit—at least at this level of generality. (My method does not address the permissible collateral damage. I agree with Guiora that, consistent with both the jus in bello and human rights law, any collateral damage must be minimized.)
    But methodologically, we differ. I argue for assessing all targeting operations by reference to the above three principles. Most international lawyers invoke their preferred legal paradigm—Guiora selects a hybrid for “active self-defense”—and then apply the norms associated with that paradigm. As I demonstrate in my other work, that latter method breeds uncertainty and undermines the discursive process by which the law might adapt to modern challenges or hold decision makers accountable.7 It breeds uncertainty because decision makers sometimes disagree on the governing paradigm even when they agree in substance. Agreeing on the paradigm for one case may threaten slippery-slope implications for other cases. Or it may require a hybrid that, like Guiora’s, is not accessible under existing law. Debating the applicable paradigm obscures areas of substantive agreement.
    More importantly, my method would focus decision makers on the considerations that actually drive legal outcomes. Decision makers now justify particular outcomes by invoking their preferred paradigms. Those who disagree on the applicable paradigm talk past each other, applying different norms to assess the same or similar conduct. That enfeebled discourse is a problem because international law—and especially the law on targeting—primarily operates discursively. When the legal process works well, it provides a common language with which decision makers may justify their positions and respond to counterarguments. Eventually, they may converge on particular outcomes and resolve substantive uncertainties. But even when they disagree on substance, the discursive process helps constrain their discretion. The more persuasively an actor defends its position, the less pressure it confronts to alter its conduct. Conversely, the more compelling the counterarguments, the more it must change its behavior or refine its position to avoid condemnation.
    Consider the Al-Awlaki case. The U.S. government justifies that and similar operations by invoking a global armed conflict against al Qaeda. It claims that the jus in bello for traditional combatants also governs operations against members of al Qaeda. The United States makes that claim, even though it does not intend to target al Qaeda members worldwide. Rather, it claims a global conflict, because it views the presumptive alternative—applying human rights law wherever U.S.–al Qaeda hostilities are not active—as sometimes too limiting. Hybrids such as Guiora’s might be normatively appealing but are not now grounded in existing law. Thus, the method for assessing targeting operations pushes the United States toward a legal position that is more extreme than its practice. Meanwhile, those who protest the U.S. practice lack effective tools for holding it accountable. Just as the wartime paradigm is ineffective in legitimizing U.S. operations, the law enforcement paradigm is ineffective in constraining those operations. The United States easily dismisses human rights law as inapplicable. Of course, the Al-Awlaki operation fits neatly into none of the existing paradigms. But because the current method requires identifying the correct paradigm before assessing state conduct, decision makers endlessly debate which of those ill-fitting options is preferable.
    By contrast, my method invites the United States to defend its operations on the merits—by reference to the principles that animate all existing law. Compromise positions may satisfy U.S. security needs while better legitimizing its operations internationally. The United States clearly seeks to do both. Here is President Obama’s chief counterterrorism adviser, John Brennan:

The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies. . . . But their participation must be consistent with their laws, including their interpretation of international law. . . . The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.8

    Whereas the current method pushes the United States toward the extreme armed-conflict claim, mine would encourage more moderation— which the United States itself seeks. Over time, the United States and other actors may narrow their disagreements and resolve when states may target terrorism suspects extraterritorially. For example, although the United States and Human Rights Watch disagree on the applicable legal paradigm, they seem to agree that the Al-Awlaki operation was permissible in part because capture was infeasible. Yet even where substantive disagreements persist, my method would better hold the United States accountable. It would require the United States to defend its conduct on the merits, instead of by reference to opaque legal paradigms. Some positions—such as the claim that it may target all al Qaeda members—would be considerably more difficult to defend.

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6. See Monica Hakimi, A Functional Approach to Targeting and Detention, 110 MICH. L. REV. __ (forthcoming 2012).

7. Id.

8. John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Strengthening our Security by Adhering to our Values and Laws, Speech at the Harvard Law School Program on Law and Security (Sept. 16, 2011).

 

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