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«TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 Drones and the Boundaries of the Battlefield MICHAEL W. LEWIS SUMMARY INTRODUCTION I. DRONE USE ...»

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TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 307 conflict between two or more states. The meaning of non-international armed conflicts was also well established. The drafting history of the Geneva Conventions supported the widely held belief that the provisions governing non-international armed conflicts were directed at internal armed conflicts and civil wars taking place inside a single state.80 More than forty-five years later, that understanding retained its place as black-letter IHL. The Handbook of International Humanitarian Law in Armed Conflicts stated that “[a] non-international armed conflict is a confrontation between the existing governmental authority and groups of persons subordinate to this authority, which is carried out by force of arms within national territory and reaches the magnitude of an armed riot or a civil war.”81 The problem with these definitions of international and non-international armed conflict is that collectively they did not describe all the types of armed conflicts that might exist. It was possible for an armed conflict to satisfy neither of these definitions. The United States’ conflict with al-Qaeda could not be an international armed conflict because al-Qaeda was not a “High Contracting Party” to the Geneva Conventions.82 Yet it was also clearly not a non-international armed conflict as defined above because it was not internal to the United States. The existence of this purported “gap” in IHL’s coverage was felt most immediately by detainees in the conflict between al-Qaeda and the United States.83 Justice Stevens foreclosed the Bush Administration’s argument that such a gap existed by redefining the term “non-international armed conflict” to include all conflicts not deemed to be “international armed conflicts,” thus reaffirming the binary approach to classifying armed conflicts.84 While this reinforcement of the binary approach may have been necessary to prevent compliance avoidance by the United States, its expansion of the definition of non-international armed conflicts erased important distinctions between purely internal conflicts, such as civil wars, and more complex transnational armed conflicts, like the conflict with al-Qaeda or the 2006 conflict between Israel and Hezbollah in Lebanon.85 In order for IHL to continue to act as a coherent body of law, these


PRISONERS OF WAR 28–29 (Jean S. Pictet ed., 1960) (“[T]he Red Cross has long been trying to aid the victims of civil wars and internal conflicts,... [b]ut in this connection particularly difficult problems [of extending Red Cross assistance] arose.”); 2-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, at 40–43 (William S. Hein & Co., Inc. 2004) (1949) (discussing application of the Geneva Conventions to civil wars). There are two significant sources for the drafting history of the Geneva Conventions. These are the four volume FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 and the COMMENTARIES that were produced by a number of attendees and edited by Jean Pictet, who was appointed Director of the ICRC in 1946 and took charge of the preparatory work that led to the adoption of the 1949 Conventions.

81. Greenwood, Scope of Application, supra note 48, at 47.

82. See Hamdan v. Rumsfeld, 548 U.S. 557, 628–29 (2006) (discussing al-Qaeda’s status as a non-High Contracting Party).

83. See id. at 628–33 (ruling that an al-Qaeda detainee in Guantanamo Bay could not be properly tried by a military commission because the proposed commission failed to provide the procedural safeguards required by the Geneva Conventions).

84. See id. at 630 (“The term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”).

85. See Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict, 40 VAND. J. TRANSNAT’L L. 295, 310 (2007) (discussing Hamdan and the “regulatory gap” “spawned” by Common Articles 2 and 3).



distinctions that were understood to exist for more than fifty years should not be replaced with a monolithic understanding of “non-international armed conflicts” that applies the same rules to all conflicts within this greatly expanded category of conflict. Whether through the creation of a hybrid category of IHL86 or merely a more compartmentalized understanding of the law applicable to “non-international armed conflicts,” the legal distinction between internal civil wars and transnational armed conflicts (defined as conflicts between states and non-state actors that cross international boundaries) must be maintained.

–  –  –

A. Legal Challenges to Drone Strikes in Transnational Armed Conflicts An illustration of why this distinction between internal civil wars and transnational armed conflicts must be maintained can be found in a recent lawsuit brought by the ACLU against the Obama Administration. The ACLU attempted to enjoin drone strikes directed against Anwar al-Aulaqi, a prominent member of alQaeda in the Arabian Peninsula (AQAP).87 Although the ACLU conceded that strikes targeting al-Aulaqi would be governed by IHL if they were conducted in Afghanistan,88 they maintained that such strikes would be occurring “outside the context of armed conflict” if they were directed against al-Aulaqi in Yemen.89 Using the reasoning that underlies the strict geographical limitations on the scope of IHL described above, the ACLU argued that the absence of an armed conflict in Yemen foreclosed the application of IHL to anyone in Yemeni territory. Instead, the use of lethal force was governed by IHRL and might only be employed when al-Aulaqi presented a “concrete, specific, and imminent threat of death or serious physical injury” to others.90 Because the ACLU conceded that al-Aulaqi was targetable under IHL in Afghanistan, the legal basis for their claim was based upon where al-Aulaqi was rather than upon who he was.

86. See id. at 311 (discussing the need for a “hybrid category” of armed conflict); see also Geoffrey S.

Corn & Eric Talbot Jensen, Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations, 42 ISR. L. REV. 46, 50 (2009) (setting out the need for the law of armed conflict to evolve to address the “emerging category” of “transnational armed conflict”).

87. Complaint for Declaratory and Injunctive Relief of Plaintiff at 2–3, Al-Aulaqi v. Obama, 727 F.

Supp. 2d 1 (D.D.C. 2010) (No. 10-01469) [hereinafter Complaint]. This suit was subsequently dismissed.

See infra note 91 and accompanying text. After the submission of this Article, al-Aulaqi was killed by a U.S. drone strike in Yemen in September 2011. Erika Solomon & Mohammed Ghobari, CIA Drone Kills U.S.-born Al Qaeda Cleric in Yemen, REUTERS, Sept. 30, 2011, available at http://www.reuters.com/ article/2011/09/30/us-yemen-awlaki-idUSTRE78T0W320110930.

88. Both Ben Wizner and Arthur Spitzer—two of the ACLU lawyers who filed the lawsuit, whom I debated separately in New York and Washington, D.C. last year—both stated that if al-Aulaqi were in Afghanistan, he could be targeted. See Michael W. Lewis and Ben Wizner, Predator Drones and Targeted Killings, FEDERALIST SOCIETY (Jan. 27, 2011), http://www.fed-soc.org/publications/detail/predator-drones

-and-targeted-killings-podcast (Wizner stating that if al-Aulaqi was fighting with the Taliban in Afghanistan, he would not be due any process prior to being targeted for killing).

89. See Complaint, supra note 87, at 2–11 (containing, in its eleven pages, seventeen instances of the phrase “outside of armed conflict” or a similar phrase).

90. Id. at 2.

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 309 Although this lawsuit was dismissed on standing and political question grounds,91 if the court had accepted the ACLU’s position that strict geographical limitations apply to transnational armed conflicts such as the conflict between the United States and al-Qaeda, it would have seriously undermined the core principles that IHL is founded upon. To understand why that is, it is necessary to understand what IHL seeks to protect and how it classifies individuals in order to further that goal.

B. Core Principles of IHL

IHL considers all people to be civilians unless or until they take affirmative steps to change that status.92 Civilians are immune from attack and may not be targeted unless they take actions to change their status and forfeit that immunity.93 From a legal standpoint, the most advantageous way for a civilian to change his or her status is to become a combatant. This cannot be done by merely picking up a weapon, however. To become a combatant, an individual must become a member of the “armed forces of a Party to a conflict.”94 To qualify as an “armed force” an organization must be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”95 The status of combatant is legally advantageous because combatants are entitled to the “combatants’ privilege,” which allows combatants to participate in an armed conflict without becoming subject to prosecution for violating domestic laws prohibiting the destruction of property, assault, murder, etc.96 The combatant’s conduct is therefore regulated by IHL rather than domestic law and a combatant may only be criminally charged with conduct that violates the laws of war.97 There is, however, a disadvantage to achieving combatant status as well. While becoming a combatant bestows the combatant’s privilege on the individual, it also subjects that individual to attack at any time by other parties to the conflict. Because targeting of combatants is based upon their status as combatants and not upon their “dangerousness,” combatants may be lawfully targeted regardless of whether they pose a current threat to their opponents, whether or not they are armed, or even

91. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 35, 52 (D.D.C. 2010).

92. Additional Protocol I, supra note 47, art. 50(1) (defining “civilian” as persons who are not members of the armed forces of a party to the conflict under Article 43 or otherwise eligible for prisonerof-war status under Article 4(A)(1), (2),(3), and (6) of Geneva III, supra note 46, and providing that “in case of doubt” a person is presumed to be a civilian). Although the United States has not ratified Additional Protocol I, it recognizes much of Additional Protocol I as descriptive of customary international law. LAW OF WAR DESKBOOK, supra note 32, at 21–22.

93. Additional Protocol I, supra note 47, arts. 51(2)–(3).

94. Id. art. 43(2).

95. Id. art. 43(1).



AND HUMAN RIGHTS LAW, 1–4 (2002) (describing the history of recognition of the “combatant’s privilege”).

97. Id. at 2.



awake.98 The only situations in which IHL limits the right to attack a combatant are when that combatant has surrendered or been rendered hors de combat.99 While there is some disagreement about whether “combatant status” should be recognized in non-international armed conflicts,100 that dispute is irrelevant when it comes to questions concerning the status of members of al-Qaeda or other terrorist organizations. Because combatant status is based upon membership in a group that organizationally enforces “compliance with the rules of international law applicable in armed conflict,”101 groups such as al-Qaeda, whose means and methods of warfare include deliberately targeting civilians, cannot claim combatant status for their members. It should be emphasized that the behavior of an individual al-Qaeda member cannot confer combatant status. No matter how strictly an individual member of a non-privileged group adheres to IHL or how scrupulously they distinguish between civilian and military targets, they are never entitled to the combatant’s privilege and may therefore be criminally liable for attacks on members of an opposing armed force.102 Al-Qaeda does not, as some have suggested, have a “basic right to engage in combat against us” in response to our attacks.103 If al-Qaeda members are not combatants, then what are they? Like all people, IHL treats them as being presumptively civilians who, as a general rule are immune from targeting104 unless they take affirmative steps to forfeit that immunity.105 There are two ways that civilians may forfeit their immunity—one temporary and one more permanent. The temporary forfeiture occurs when a civilian directly participates in hostilities (DPH).106 While the exact contours of what constitutes DPH are not clearly established, it is generally associated with a discrete act.107 Picking up a gun or

98. See supra note 36 and accompanying text.

99. Geneva I, supra note 46, art. 12; Geneva III, supra note 46, art. 13.

100. Additional Protocol I only applies to international armed conflicts and there are no provisions in Additional Protocol II (which supplements Common Article 3 of the Geneva Conventions and is applicable to “all armed conflicts which are not covered by [Additional Protocol I]”) for combatant status.

However, much of Additional Protocol I has been recognized as customary international law and may apply to Additional Protocol II conflicts. See, e.g., Hamdan, 548 U.S. at 632–35 (applying Additional Protocol I Article 75 to a “conflict not of an international character”); Geoffrey S. Corn, Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?, 22 STAN. L. & POL.

REV. 253 (2011) (arguing that combatant status should be afforded to non-state actors meeting Additional Protocol I’s Article 43 criteria).

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