Thursday, April 19, 2012

Conduct- versus Status-based Targeting in Yemen (and Pakistan)

Greg Miller reports in the Washington Post that the CIA is seeking authority for “signature strikes” in Yemen. Miller defines signature strikes as those that “hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.”

Miller’s description of the “signature strike” authority would seem to suggest that the CIA—in Pakistan and now potentially in Yemen—operates under targeting rules that are either a very liberal interpretation of Direct Participation in Hostilities (DPH) or that are status-based. This is a stunning revelation for two reasons.

First, irrespective of whether the CIA is employing DPH or status-based targeting, the authority Miller describes suggests that the CIA considers its targeting authority stems from the existence of an armed conflict—actually, two armed conflicts: one in Pakistan and one in Yemen. Because the targets of these strikes—various militant organizations in Pakistan and AQAP in Yemen—are not states, the existence of an armed conflict turns on the organization of the parties and the intensity of the hostilities between the United States and these organizations. While the intensity of U.S. drone operations in Pakistan in 2009-2010 almost certainly rises to the level of an armed conflict, the intensity of U.S. operations in Yemen (although increasing) does not seem to rise to the level of an armed conflict (10 airstrikes in 2011, just 10 airstrikes so far this year). That said, the United States may be engaged in an armed conflict through intervention into Yemen’s civil war, assuming that the intensity of hostilities between AQAP and the Yemeni government are sufficient to constitute an armed conflict. 

The existence—or not—of an armed conflict is a question of fact and it is very important. When an armed conflict exists, the law of armed conflict is triggered, imposing certain constraints and providing certain authorities to the parties to the conflict. For example, Common Article 3 provides a minimum level of treatment for captured or wounded non-state fighters in an armed conflict not of an international character. At the same time, the existence of an armed conflict vests a state with the authority to use force as a first resort. It also provides soldiers with combatant immunity. Simply put, what would be murder outside of an armed conflict may not be within the context of an armed conflict.

But it is also the source of the notion of unprivileged belligerency. You may remember this from the Bush administration’s phrasing: unlawful enemy combatants. The law of armed conflict defines two classes of people: combatants and civilians. Combatants are soldiers: uniformed members of the armed forces of states. Civilians are everyone else. Anyone who is not a uniformed member of the armed force of a state is a civilian. Combatants are entitled to prisoner-of-war status when captured, they enjoy combatant immunity, but they are also subject to status-based targeting. That means combatants can be targeted anytime, anywhere, unless they are hors de combat. Civilians, on the other hand, are protected from targeting and attack unless and for so long as they are Directly Participating in Hostilities. 

DPH is a concept that has garnered a fair amount of attention and controversy since September 11, 2001. The limiting language—unless and for so long as—has generated debate over the proverbial farmer-by-day, fighter-by-night and whether he can be targeted while he’s using his hoe or only when he bends low to pick up his rifle. A liberal interpretation of DPH has evolved, recognizing that some civilians join non-state armed organizations just to be fighters, and they are fighters all the time. As such, they assume a continuous combat function and are targetable all the time, regardless of whether they are then performing a hostile, much like a combatant. But this understanding of DPH is by no means uncontroversial nor universally accepted. 

The authority described by Miller—“hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives”—suggests that the CIA is adopting either a continuous combat function approach or a status-based approach to targeting. That is, the CIA believes that people who gather at known al-Qaeda compounds or unload explosives are fulltime fighters, satisfying the continuous combat function criteria, and are therefore always targetable. Alternatively, the CIA may be adopting a status-based targeting approach to non-state fighters. Such an approach would violate extant law of armed conflict but may be a data point indicating an emerging revision of the customary law governing targeting.

Finally, notice that the employees of the CIA, because it is a civilian agency and its employees are not uniformed members of the armed forces of the United States, do not benefit from combatant immunity. That is, they too are civilians directly participating in hostilities. 

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