«Jessica Dorsey and Dr. Christophe Paulussen ICCT Research Paper April 2013 This ICCT conference report provides a detailed overview from the two-day ...»
However, whether consent has been given can be difficult to determine. Posner sets out what he calls “coercive consent”.29 The US justifies its use of drone attacks in Pakistan against terrorists there through Pakistan’s consent. Publicly and officially, however, Pakistan has opposed the use of drones on its territory.30 Nonetheless, the US claims such consent was given, and infers further and continuing consent from the fact that the “Pakistani military continues to clear airspace for drones and doesn’t interfere physically with the unpiloted aircraft in flight”.31 To do otherwise would be risky, according to Posner, and Pakistan is not in the position to actually do something about the attacks.32 Recently, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, conducted a country visit to Pakistan and after meeting with several government representatives concluded: “The position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory and it considers this to be a violation of Pakistan's sovereignty and territorial integrity”,33 though this statement has been met with some critical reception.
A further issue then becomes whether consent can be inferred and what risks come with it. Regarding consent in international law, in the Armed Activities case before the International Court of Justice (ICJ), Judge Tomka stated that when the use of armed force is a lawful exercise of the right to self-defence, the force used falls outside of the scope of article 2(4)’s prohibition. Andre de Hoogh remarks that “this view appears to mischaracterise the relationship that exists between articles 2(4) and 51, which is one of general prohibition and justification. Any use of armed force necessarily falls within the scope of the prohibition, more so when territorial integrity is interpreted to mean territorial inviolability”.34 And he points to the Court's conclusion that Uganda violated the prohibition, to illustrate that “article 2(4) does not exclude certain specific armed measures or activities from its scope”.35 Therefore, this kind of use of force needs some kind of justification (e.g., either selfdefence or Security Council authorisation). This is only relevant when considering consent. As De Hoogh points out, “if the territorial State agrees to the use of armed force by another State on its territory, e.g., to suppress armed bands or pursue terrorists, there will not be a violation of article 2(4) because such force will not be against the territorial integrity or political independence of the former State, nor inconsistent with the purposes of the United Nations”.36 During the symposium, the case-by-case basis approach regarding classification of conflict was a theme that returned to this particular topic in order to assess the type of conflict, and analyse where it is occurring rather than trying to assign a “blurry” concept of a battlefield to it. It was posited that the concept of consent in IHL takes away the possibility of classifying the conflict as an IAC, but then the intensity and organisation of the ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment (19 December 2005), para.
Eric Posner, “Obama’s Drone Dilemma”, Slate Magazine (8 October 2012), http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/10/obama_s_drone_war_is_probably_illegal_will_it_stop_.si ngle.html.
Pakistani officials have made several statements such as that found here deploring the drone deployment: Eric Randall, ‘Pakistan says no more drones’, The Atlantic Wire (20 January 2012), http://www.theatlanticwire.com/global/2012/01/pakistan-says-no-moredrones/47674/.
E. Posner, “Obama’s Drone Dilemma” (2012).
OHCHR, “Pakistan: Statement by the UN Special Rapporteur on human rights and counter-terrorism”, News (15 March 2013),http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13148&LangID=E.
Andre de Hoogh, The Armed Activities Case: Unasked Questions, Proper Answers (30 January 2006), http://www.haguejusticeportal.net/index.php?id=2510.
The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 6 parties must be examined in order to see whether a situation rises to the threshold of a NIAC – where IHL would govern – or not – where IHRL and the law enforcement paradigm would be more appropriate. In conclusion, it was offered that it is not the consent, but rather the facts on the ground that determine the classification of an armed conflict.
Regarding the issue of the “hot battlefield”, John Brennan has addressed the US’ position regarding the geographic scope of armed conflict. He made reference to al-Qaeda’s leadership base as being in Pakistan and that the “affiliated forces” are “in places like Pakistan, Yemen, and countries throughout Africa”.37 This serves to concretise some ideas about how the US perceives the battlefield (i.e., naming particular countries where operations have already happened or may yet occur). Brennan directly addressed the geographic scope by stating that the US was not “restricted solely to ‘hot’ battlefields like Afghanistan” as the armed conflict with al-Qaeda allows the US to use force against these non-state actors under a self-defence regime, but without the requirement to do “a separate self-defence analysis each time”.38 One panellist remarked that with non-state actors, it is easy for conflicts to spread and therefore we should link the physical footprint (i.e., where the non-state actors find themselves) to the on-going conflict.39 Panel discussion further identified the fact that there is a widespread use of the term “hot battlefield” without it even being mentioned in the Geneva Conventions. When describing the permissible boundaries, one panellist remarked that the question really revolved around the distance allowable from the hot battlefield and thought that a training facility located, for example, in Somalia, ought to be legitimately classified as part of the battlefield, mainly based in using the law of neutrality by analogy.40 Another issue that arose relates to the status of the combatant and the location of hostilities. The crux of the issue is whether the conflict follows a participant wherever he may be found. The US position is that killing suspected members of al-Qaeda in today’s conflict is, by analogy, just as legally defensible as killing Japanese General Yamamoto in the Second World War.41 “For the United States (and others that adopt this position), once a state is in an armed conflict with a non-state armed group, that conflict follows the members of that group wherever they go, as long as the group’s members continue to engage in hostilities against that state (either on the ‘hot battlefield’ or from their new location.)”.42 This has been challenged by some scholars because applying IAC standards in a NIAC by analogy is inherently problematic.43 Additionally, according to the International Committee of the Red Cross (ICRC), the US theory that “a person directly participating in hostilities in relation to a specific ongoing NIAC ‘carries’ that armed conflict with him to a non-belligerent state by virtue of continued direct participation (the nexus requirement) and remains targetable under IHL” is a novel view in contrast with the underlying object and purpose of the Geneva Conventions.44 This is demonstrated in the same ICRC report, given J. O. Brennan, Remarks addressing the Harvard Law School Brookings Conference (2011).
One panellist gave examples of a related string of attacks or attempted attacks in order to illustrate the point: the attack in 1998 on the USS Cole, the US embassy in Kenya, the shoe bomber. Because Somalia is very close to Yemen, there are reasonable reports that it has been used as a staging ground and training ground, making it a legitimate basis for extending the territory to include this area. To take steps reasonably tailored to address this particular physical footprint, a state has a right to, in a tailored fashion, respond to threats that are posed in another state when proportional. The problem in this case however was that the response was not proportional-it was a glorified territory grab. For more on this issue, see R. Norton-Taylor, “Somalia is training ground for British would-be terrorists, report warns”, The Guardian (7 February 2012), http://www.guardian.co.uk/uk/2012/feb/07/somalia-training-ground-british-terrorism.
For an overview of the argumentation regarding the applicability of neutrality law to contemporary armed conflicts with non-state actors, see Karl Chang, “Enemy Status and Military Detention in the War against Al-Qaeda”, Texas International Law Journal 47, no. 1 (2011), pp. 1-73.
See also, Jack L. Goldsmith, “A Just Act of War”, New York Times Editorial (30 September 2011), http://www.nytimes.com/2011/10/01/opinion/a-just-act-of-war.html?_r=2&ref=opinion; John Tabin, “The Awlaki Precedent”, The American Spectator (30 September 2011), http://spectator.org/blog/2011/09/30/the-awlaki-precedent/print.
A. Deeks, “Pakistan’s Sovereignty and the Killing of Osama Bin Laden”, ASIL Insights 15, no. 11 (5 May 2011).
See generally Kevin Jon Heller, “The Law of Neutrality Does Not Apply to the Conflict With Al-Qaeda, And It’s a Good Thing Too: A Response to Chang”, Texas International Law Journal 47, no. 1 (2011), pp. 115-141; Rebecca Ingber, “Untangling Belligerency from Neutrality in the Conflict with Al-Qaeda”, Texas International Law Journal 47, no. 1 (2011), pp. 75-114; Kevin Jon Heller, “The Folly of Comparing Al-Awlaki to Admiral Yamamoto”, Opinio Juris blog entry (1 October 2011), http://opiniojuris.org/2011/10/01/the-folly-ofcomparing-al-awlaki-to-admiral-yamamoto/.
44 st ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflict, report prepared in conjunction with the 31 International Conference of the Red Cross and Red Crescent (Geneva Switzerland: October 2011), 22, http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challengesreport-11-5-1-2-en.pdf.
ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 7 that the legal expansion of this theory allows for an application of the rules governing the conduct of hostilities to a globally limitless battlefield.45 In discussion, one panellist found the idea that the conflict follows the participant very problematic given that this construct was not envisioned by the Geneva Conventions or the subsequent protocols. Going back to Common Article 3 of the Geneva Conventions (which states that each party to the conflict shall be bound to apply, as a minimum, certain provisions, “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”), he argued, it says “in the territory of one of the High Contracting Parties” not two or three. Additional Protocol II stipulates “in the territory of a High Contracting Party” which is slightly more flexible. In looking at the Afghanistan/Pakistan situation, spill-over is geographically problematic. The panellist urged the audience to look at attacks on a case-by-case basis, so those in Pakistan remained separate from those in Afghanistan. The next step is to then ask the requisite questions: is this a new IAC? If there is consent from the territorial state (see discussion on consent on pages 7-8), this might make a difference in classification of the conflict (NIAC v. IAC), but again, it is not the consent, it is the facts on the ground that determine the decision involving classification of the armed conflict.
Another panellist offered three relevant different operational lenses to view the issue through:
prospectively (where can a soldier go?), real-time (where can a soldier find his/her enemy?) and post-hoc accountability (what law applies?), while also emphasising that the answers to these questions may depend on who is trying to answer them. A military perspective might say that a global battlefield is preferable – an easy answer, but not necessarily the right one. The level of threat perceived will also have a bearing on what decisions are made, as you cannot divorce law from policy. Looking to the fundamentals of the law can be helpful when IHL is not clear in that lawyers must balance principles of IHL.46 One conclusion may be that “geographical limitations cannot be found on a map” as one panellist suggested. Another panellist reiterated an idea already discussed: the real question is whether there is an IAC or a NIAC, and there is a need for careful analysis on a case-by-case basis, rather than an overly broad application of IHL across the entire globe. If there is a NIAC, is it indigenous and where is the NIAC located? Only once you have answered this can IHL be applied, and it is applied, geographically, across the entire territory of hostilities.47 Yet another panellist thought that it was not up to IHL to govern the geographical scope of armed conflict but that this was rather a jus ad bellum question about where force was being used and whether the amount of force rose to the requisite intensity and organisation, in which case IHL follows the hostilities rather than determines them.
Regarding the notion of status, in a NIAC only those who directly participate in hostilities (DPH) might be targeted under international law. The ICRC published a study on guiding the interpretation of DPH in 2009 and posits that DPH implicates “individual (civilian) involvement of a person in hostilities (i.e., the resort by the parties to the conflict to means and methods of injuring the enemy)”.48 But it does not stop there. In this interpretive guidance, the conclusions drawn about civilians taking direct part in hostilities have the following three constitutive elements: 1) a threshold of harm must be reached, 2) there must be direct causation by the direct participant to have reached this harm, and 3) there must be a belligerent nexus between one party causing the harm to another party to the conflict.
In terms of other statuses assigned to individuals involved in hostilities, it must be said that membership within a particular group, such as al-Qaeda, cannot be based on “