Constraining Targeting in Noninternational Armed Conflicts: Safe Conduct for Combatants Conducting Informal Dispute Resolution

• Author: Peter Margulies
• Position: Professor of Law, Roger Williams University School of Law; B.A., Colgate; J.D., Columbia

1041

Constraining Targeting in

Noninternational Armed Conflicts:

Safe Conduct for Combatants

Conducting Informal Dispute

Resolution

Peter Margulies*

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 1042

II. INFORMAL DISPUTE-RESOLUTION PROCESSES .............. 1048

III. FLAWS IN TARGETING: DISPUTE RESOLUTION AS

A CASUALTY OF WAR ...................................................... 1053

IV. STEWARDSHIP IN INTERNATIONAL LAW AND

IMPLIED SAFE CONDUCT FOR DISPUTE RESOLUTION ... 1058

A. Harmonizing Obligations Under

International Law ............................................... 1058

B. Cultural Property and Self-Determination ....... 1064

C. Operationalizing Stewardship: Implied Safe

Conduct ............................................................... 1067

D. Implied Safe Conduct and Indigenous

Dispute Resolution .............................................. 1070

E. Challenges Posed by New Targeting

Techniques and Technology ............................... 1073

1. Signature Strikes ......................................... 1074

2. Autonomous Systems ................................... 1075

V. POTENTIAL OBJECTIONS ................................................ 1076

VI. CONCLUSION .................................................................. 1077

* Professor of Law, Roger Williams University School of Law; B.A., Colgate; J.D.,

Columbia. I thank Dick Jackson, Gary Corn, David Glazier, Chris Jenks, Mike Lewis,

Mike Newton, and participants at the Vanderbilt Journal of Transnational Law

Symposium on the responsibilities of non-state actors and the National Security Law

Conference at South Texas College of Law for helpful conversations and comments on a

previous draft.

1042 vanderbilt journal of transnational law [vol. 46:1041

I. INTRODUCTION

An American drone pilot thousands of miles away from

Afghanistan sees a tempting target on his computer screen. Thanks

to the Predator drone’s video capabilities,1 the pilot is treated to the

spectacle of a known Taliban commander and over a dozen other

armed men greeting a dozen tribesmen, who are also armed to the

teeth. Everyone depicted on-screen has a gun. The pilot fires the

Predator’s missile. Shortly thereafter, he confirms the deaths of thirty

Taliban fighters and associated forces.

While the facts above, particularly the presence of the known

Taliban commander, tend to show that the strike was consistent with

the laws of armed conflict (LOAC), this Article argues that

international law should require more. Suppose, for example, that the

Taliban commander and the tribesmen, while currently fighting the

United States and President Hamid Karzai’s regime installed in

Afghanistan after the post–September 11 U.S. intervention, were

conducting a jirga—a meeting with elders—to decide whether they

should make peace with the Karzai regime. Or suppose that the

commander was conducting a jirga with villagers to determine

property rights. If the villagers left before the strike, the strike

against the Taliban fighters would similarly be legal under LOAC.

However, a strike would devalue the jirga, a time-honored means of

dispute resolution2 in a country that has seen its fill of war for more

than three decades.

The scenarios just described are not purely hypothetical. Some

evidence suggests that informal negotiators have been either targeted

or become collateral damage in U.S. drone strikes.3 This evidence

1. For a discussion of drones’ technical capabilities, see Michael W. Lewis,

Drones and the Boundaries of the Battlefield, 47 TEX. INT’L L.J. 293, 296–98 (2012). Cf.

Michael W. Lewis & Emily Crawford, Drones and Distinction: How IHL Encouraged

the Use of Drones, 44 GEO. J. INT’L L. 1127, 1133–34 (2013).

2. See Christina Jones-Pauly & Neamat Nojumi, Balancing Relations Between

Society and State: Legal Steps Toward National Reconciliation and Reconstruction of

Afghanistan, 52 AM. J. COMP. L. 825, 836 (2004) (“The core of the unofficial or ‘informal’

legal system is what is known . . . as the local Jirga . . . .”).

3. See Robert F. Worth, Mark Mazzetti & Scott Shane, Hazards of Drone

Strikes Face Rare Public Scrutiny, N.Y. TIMES, Feb. 6, 2013, at A1 (discussing the

death of a cleric who opposed Al Qaeda in an air strike that apparently targeted three

Al Qaeda members with whom the cleric was meeting and the death of Adnan Qadhi,

an Al Qaeda member who had recently acted as a mediator between the Yemeni

government and other militants); David Zucchino, Study Slams Drone Use in Pakistan,

L.A. TIMES, Sept. 25, 2012, at A3 (reporting on a strike in Afghanistan on March 17,

2011, that killed forty-two people attending a jirga to settle a dispute about a chromite

mine; according to a report by programs at Stanford and NYU law schools, only four

2013] Constraining Targeting in Noninternational Armed Conflicts 1043

might be unreliable. However, if it is accurate, even in part, that

should be a concern even for those who support the broad outlines of

the U.S. targeting strategy.4 Responding to this concern, this Article

argues that informal negotiators from an armed non-state group

should receive an “implied safe conduct,” not only shielding them

from targeting but also imposing an affirmative duty on a state party

to a noninternational armed conflict (NIAC) to ensure their safety.5

The expansion of implied safe conduct suggested here reflects

what can be called a “stewardship model” for third-party states, such

as the United States, that participate in NIACs in host countries,

such as Afghanistan, Pakistan, Somalia, or Yemen. A stewardship

model, which this author has also advanced in another recent piece

dealing with the interaction of American and international law, 6

seeks to reconcile LOAC and international human rights law in order

to promote the preservation of indigenous governance and the

transition to civil order in the host state. 7 Preserving informal

known members of the Taliban attended; according to the United States, all of those

killed were militants).

4. See Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Keynote

Address at the Annual Meeting of the American Society of International Law: The

Obama Administration and International Law (Mar. 25, 2010), available at

http://www.state.gov/s/l/releases/remarks/139119.htm (speaking to the current legal

challenges faced by the Obama Administration, including the legal issues surrounding

targeting); cf. Peter Margulies, The Fog of War Reform: Struc ture and Change in the

Law of Armed Conflict After Sept. 11, 95 MARQ. L. REV. 1417, 1471–77 (2012) (citing

public remarks by former State Department Legal Adviser Harold Koh and others);

Nicholas Rostow, The Laws of War and the Killing of Suspected Terrorists: False Starts,

Rabbit Holes, and Dead Ends, 63 RUTGERS L. REV. 1215, 1222–28 (2011) (praising

Koh’s view that the 9/11 attacks triggered the United States’ right of self-defense and

targeting in foreign countries, while criticizing opponents of U.S. policy on targeted

killing as imposing unworkable standards). Compare John C. Dehn & Kevin Jon

Heller, Debate: Targeted Killing: The Case of Anwar al-Aulaqi, 159 U. PA. L. REV.

PENNUMBRA 175, 189–91 (2011) (supporting the targeting of al-Aulaqi), with id. at

183, 196 (arguing that targeted killings are generally impermissible).

5. The concerns that drive this approach harmonize with recent work by

Ganesh Sitaraman on counterinsurgency. See generally GANESH SITARAMAN, THE

COUNTERINSURGENTS’ CONSTITUTION: LAW IN THE AGE OF SMALL WARS (2013). This

Article is more specific than Sitaraman’s work on targeting, and also suggests a

different approach, one that avoids across-the-board constraints on commanders’

discretion.

6. See generally Peter Margulies, Taking Care of Immigration Law:

Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers, 94

B.U. L. REV. (forthcoming 2014), available at http://ssrn.com/abstract=2215255

(presenting a new stewardship theory as it applies to the Obama Administration and

immigration law).

7. The interaction of LOAC and human rights law has become a pressing

issue in the wake of two recent decisions by the European Court of Human Rights. See

Al-Jedda v. United Kingdom, 2011 Eur. Ct. H.R. 1092 (holding that, absent express

derogation, the state violated human rights law by detaining an individual in Iraq in

the course of its role as part of the UN-sponsored force); Al-Skeini v. United Kingdom,

2011 Eur. Ct. H.R. 1093 (holding that the state’s control of territory in Iraq pursuant to

a UN Security Council resolution imposed a duty to observe the European Convention

on Human Rights, including provisions on the right to life and the investigation of