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
 
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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. INTL 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. INTL 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

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