Constraining targeting in noninternational armed conflicts: safe conduct for combatants conducting informal dispute resolution.

Author:Margulies, Peter

TABLE OF CONTENTS I. INTRODUCTION II. INFORMAL DISPUTE-RESOLUTION PROCESSES III. FLAWS IN TARGETING: DISPUTE RESOLUTION AS A CASUALTY OF WAR IV. STEWARDSHIP IN INTERNATIONAL LAW AND IMPLIED SAFE CONDUCT FOR DISPUTE RESOLUTION A. Harmonizing Obligations Under International Law B. Cultural Property and Self-Determination C. Operationalizing Stewardship: Implied Safe Conduct D. Implied Safe Conduct and Indigenous Dispute Resolution E. Challenges Posed by New Targeting Techniques and Technology 1. Signature Strikes 2. Autonomous Systems V. POTENTIAL OBJECTIONS VI. CONCLUSION 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 resolution (2) 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 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 dispute-resolution processes is one component of stewardship. Discounting the need for this preservation may increase kill rates in the short term but will leave a host state unstable in the long term, undermining the rationale for the third-party state's intervention.

Stewardship duties are hardly unknown in LOAC. The law of occupation, which typically kicks in after the conclusion of an armed conflict, has been described as a framework of "temporary trusteeship." (8) The trusteeship of occupation must preserve the laws of the occupied state; this Article argues that informal dispute-resolution processes such as jirgas and shuras (9) are part of that law.

The stewardship approach builds on this analogy to occupation law. As lex ferenda, not lex lata, it emerges from a backdrop of respect for negotiation and cultural dispute-resolution processes. Negotiators have historically received protection under LOAC and international law. (10) Typically, that protection has taken one of two forms. Protection can entail an express, affirmative, and specific grant of safe conduct to particular individuals. Alternatively, it can entail a treaty-based grant that has arguably ripened into customary international law (CIL) for particular classes of individuals, vehicles, or vessels, such as International Committee of the Red Cross (ICRC) personnel, medical transports, and alien merchants. (11)

However, logic and policy support extending implied safe conducts to informal negotiators who distinguish themselves through a symbol that reflects their activities and thereby provides targeters with adequate guidance. First, the traditional approach is rooted in the Westphalian regime of the nation-state. (12) It fails to do justice to the more complex, asymmetric warfare of the twenty-first century in which powerful and sophisticated states like the United States face off against non-state actors who often invoke traditional cultural norms to gain traction with the civilian population in weak states, such as Pakistan and Afghanistan. (13) Failing to extend safe conducts beyond consensual grants could prolong modern NIACs, posing tension with the rationale for LOAC.

The implied-safe conduct approach also gathers support from analogy to human rights concepts such as cultural property. Indigenous dispute-resolution processes lack the concrete nature of artifacts and other cultural property expressly protected by international law. However, they are at least as important to the communities they serve. Moreover, like the connections to ancestral land protected in cases such as Moiwana Village v. Suriname, (14) once ties to dispute-resolution processes are broken, restoring those ties is an arduous and sometimes futile endeavor.

Stewardship and the implied-safe conduct concept improve on the leading approaches for dealing with targeting issues. Many scholars accept what this Article will refer to as the "preemptive model," which views LOAC as lex specialis--a body of law with specific rules that "preempts the field," rendering other sources of law inoperative or inapplicable. (15) The preemptive model rejects constraints on targeting beyond distinction, proportionality, and precaution, unless customary or treaty law requires these safeguards, as it does for diplomats and medical transports. (16) The preemptive model does not preclude heightened safeguards but generally places them within the realm of prudential measures adopted at the option of the attacking state through rules of engagement (ROE). (17)

The "rival approach," which will be called the "protective conception," aims to more broadly constrain targeting. The protective school requires across-the-board constraints on targeting beyond the requirements of the jus in bello principles of distinction and proportionality. (18) For example, the protective approach requires a quantum of care in the avoidance of civilian casualties that goes beyond reasonableness, approaching strict liability. (19)

Both the preemptive and protective models have faults. (20) The preemptory model risks giving in to the myopia that occasionally afflicts commanders who, in the fog of war, can make decisions that prolong conflicts. (21) On the other hand, the protective model places unrealistic burdens on commanders to avoid collateral damage. Going beyond the reasonableness standard that has marked compliance with the principle of proportionality, the protective concept subjects commanders to hindsight bias. (22) The quest for perfection at the heart of the protective vision is incompatible with the exigencies of armed conflict. Insisting on such a rigid standard will have one of two ill effects: it will either impair commanders' war-fighting capabilities or yield wholesale disregard of LOAC norms. (23) The stewardship approach, including expanding implied safe conducts, is a third way, which incentivizes greater accuracy where the stakes are highest while rejecting across-the-board restrictions on targeting that place undue burdens on command discretion.

This Article proceeds in four Parts. Part II discusses informal dispute resolution and notes the importance of informal dispute resolution in certain societies where third-party counterinsurgencies are ongoing. (24) Part III provides evidence that targeting by the United States has had an adverse impact on informal dispute resolution, although it concedes that the exact nature and extent of that impact is unclear. Part IV outlines the stewardship model and the legal support for an implied-safe conduct theory. It then sketches the theory's operation. This Part also includes discussion of the consequences of the implied-safe conduct approach for two new types of war fighting: drone signature strikes and autonomous systems in which computers make certain decisions without ex ante human review. Part V discusses some objections, including the concern that the implied--safe conduct approach, like the protective model, unduly constrains commanders' decisions.


    Informal dispute-resolution procedures like the shura and jirga serve vital purposes in Afghanistan, Pakistan, and elsewhere in the region. They are an integral part of the culture. (25) Because of their unique role, these institutions can assist in transitions from societies that breed terrorist threats to societies that discourage such threats. Appreciating the role of such institutions in transitions also requires understanding their function.

    The U.S. Army's Counterinsurgency Manual (the Manual) revealed an appreciation for the role played by culture and governance. The Manual directed commanders to...

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