Targeting Individuals Belonging to an Armed Group.
|Special Issue: The Law of Armed Conflict
TABLE OF CONTENTS I. INTRODUCTION 902 II. PRACTICAL AND LEGAL CHALLENGES IN 903 LIGHT OF THE FIGHT AGAINST TERRORISM III. THE NOTION OF "ORGANIZED ARMED GROUP" 905 UNDER INTERNATIONAL HUMANITARIAN LAW IV. THE NOTION OF "MEMBERSHIP" IN AN ORGANIZED 910 ARMED GROUP UNDER INTERNATIONAL HUMANITARIAN LAW V. CONCLUSIVE REMARKS--FURTHER CLARIFICATION 916 THROUGH A LEGAL-EMPIRICAL APPROACH? I. INTRODUCTION
Nowadays, the prevailing view among IHL specialists and states is that in an NIAC, (1) members of an organized nonstate armed group may be targeted and killed in a similar way as members of state armed forces. (2) A minority of authors maintain that members of organized armed groups may be targeted only when and for such time as they directly participate in hostilities. (3)
In other words, members of organized armed groups would generally be considered targetable based on their membership in such groups. There would be no need to prove that they are directly participating in hostilities in order to consider their targeting as compliant with IHL. Members of organized armed groups would thus not benefit from the famous "revolving door" of protection in the same way as civilians--who lose protection against direct attack when they engage in direct participation in hostilities, but regain it as soon as such participation ends, such as when they resume their civilian activities. (4)
This entails that targeting based on membership in an organized armed group requires answering two key questions. First, what is an organized armed group for the purpose of IHL?; and, second, how should one determine membership in such an organized armed group for the purpose of targeting? These two crucial questions raise a number of legal and practical challenges, especially with respect to the contemporary "war on terror" that is being waged by a number of states against alleged transnational armed groups such as al-Qaeda and the Islamic State as well as against so-called associated forces.
This essay will provide an overview of these main practical and legal challenges in defining organized armed groups and membership therein in light of the contemporary fight against terrorism (Part II). Then it will provide an IHL analysis of the notions of "organized armed group" (Part III) and membership in such groups for the purpose of targeting (Part IV) and apply such concepts to entities such as al-Qaeda and the Islamic State and their alleged members. Conclusive remarks (Part V) will suggest the need for further research that is not only legal but also empirical in order to properly clarify the crucial notions of "organized armed groups" and "membership" in such groups under IHL.
PRACTICAL AND LEGAL CHALLENGES IN LIGHT OF THE FIGHT AGAINST TERRORISM
Contemporary armed conflicts show that there is a multitude of armed groups, each with very different characteristics, structures, and ways of operating. At one end of the spectrum, there are "traditional" armed groups, such as the Tamil Tigers (LTTE) in Sri Lanka, the FARC in Colombia, or the Hezbollah in Lebanon. These groups are well-organized and have a state army-like structure. They have clear and distinctive uniforms, which allow recognizing them at a distance. At the other end of the spectrum, there are amorphous armed groups, or rather networks, such as al-Qaeda, which continue to rally members and which seemingly have a common strategy despite their decentralized character. The Islamic State is a particularly intriguing organization as it has two faces. It somehow combines a highly-organized state army-like structure in Iraq and Syria notably, while at the same time operating as a worldwide network made of various terrorist cells or individuals operating more or less independently. Territorial losses in Iraq and Syria lead the Islamic State to adapt and to operate in a more decentralized manner while at the same time providing inspiration to followers, or so-called lone wolves, to perpetrate terrorist attacks far away from the battlefield. (5)
In light of this new reality, an important issue is whether worldwide terrorist networks such as al-Qaeda and the Islamic State (under its second manifestation) may be qualified as transnational "organized armed groups" for the purpose of IHL. As highlighted by Eric Talbot Jensen, there are several "complicating factors" to consider such groups as organized armed groups for the purpose of IHL. (6) They have no pyramidal structure, but rather decentralized organizational command and control. The leadership provides general instructions--guidance more than clear orders or military command--thus leaving a wide margin of appreciation to those executing the operation. Fighters are geographically dispersed; cells operate in very different contexts and those conducting the attack may be far away from the leadership of the armed group. There are great fluctuations in the functioning of such networks. Groups in the network split, reunite, change, and evolve very quickly. Such organizations, and their leadership, might not precisely know themselves who belongs to them. Such "complicating factors" are multiplied when taking into account notions such as "associated forces" or the UN Security Council terminology of "Al-Qaida, ISIL, or any cell, affiliate, splinter group, or derivative thereof." (7)
In this context, key legal issues are: what do we really mean by "organized" armed groups under IHL? Are there key organizational factors that must be present to consider an armed group as an "organized armed group" for the purpose of IHL? Should the organization criterion be assessed on a case-by-case basis in a particular state or geographical area (i.e., "territorially-based") or may a group be organized "transnationally" (i.e., irrespective of state borders)? (8) Should groups such as al-Qaeda/Islamic State be seen as unitary transnational armed groups or rather as associations made of several armed groups which can be considered "co-belligerents"?
There are also legal and practical challenges in determining membership in an "organized armed group." Unlike membership in state armed forces, membership in an organized armed group is neither defined by domestic law, nor necessarily immediately visible through the wearing of uniforms.
As a result, a crucial question is: what categories of persons can be considered members of an organized armed group for the purpose of targeting? Should a distinction be made between persons belonging to the military wing versus the political wing? If the answer is affirmative, what about persons who might cumulate or switch from "political" to "military" functions? In other words, how should one cope with the blurring between civilian and military functions of members of organized armed groups? Moreover, should anyone in the military wing be considered targetable, including, for instance, the cook, or only those assuming a "continuous combat function," as purported by the International Committee of the Red Cross (ICRC)? (9) Even if this controversial notion were to be accepted, what does it mean concretely to have a continuous combat function?
Several controversial situations can be raised, especially in the context of the fight against terrorism. Is receiving training from al-Qaeda in the Arabian Peninsula, for instance, for conducting a suicide attack sufficient to establish membership? Is the pledging of allegiance to the Islamic State, for instance, sufficient? If a terrorist group claims responsibility for an attack, is it sufficient to consider the attackers members of the group? What about an individual who merely travels to Syria with the intent to join, for instance, the Islamic State? Is he/she to be considered a member of the group and, if yes, when would membership begin? Is the provision of weapons by a terrorist group to an individual sufficient to establish membership? Is it possible to belong to an armed group through virtual relationships on the internet?
The law does not provide clear-cut answers to these questions, as will be evidenced in the following sections.
THE NOTION OF "ORGANIZED ARMED GROUP" UNDER INTERNATIONAL HUMANITARIAN LAW
Surprising as it may be, IHL does not define the notion of "organized armed groups," despite the fact that the organization of the parties is crucial to determine the existence of an NIAC, together with the criterion of intensity of violence between the parties.
Common Article 3 to the four Geneva Conventions does not even use the term "organized armed group." It simply states that "[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions ... (emphasis added)." (10) The term "Party" has been interpreted as entailing the existence of organized actors, be they states or nonstate actors. (11) The ICRC Commentaries noted, already in 1952, that one possible criterion to determine the existence of an NIAC is that "the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention." (12)
In 1977, Additional Protocol II was adopted and complements Common Article 3 with additional rules that are applicable in NIACs. Article 1, paragraph 1 of Additional Protocol II provides that it applies to armed conflicts:
which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. (13) Article 1, paragraph 2 further specifies that it does "not apply to situations of internal...
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