WRITTEN BY: DR. BONNIE C. BRENNAN[1]

The relationship between human rights and humanitarian law grows ever more complicated.  The current view is that human rights applies at all times everywhere and that humanitarian law is lex specialis, applying only in time of war in the theatre of war with the possible exception of belligerent occupation.[2] The question I would like to raise in this brief essay is which law properly applies to the targeted killings currently being undertaken by the Obama administration against suspected terrorists.

What is War?

The problem with the selection of the applicable law lies in defining the term “war.”[3]  Certainly, at the time that the Geneva Conventions[4] were written, shortly after the close of World War II, the answer as to what constituted “war” must have seemed self-evident.  Indeed, the 1949 Geneva Conventions were written with an eye to World War II and were intended to outlaw the excesses of that war.  One might argue that the excesses of that war were outlawed again as previous humanitarian law conventions were ignored by the belligerents during World War II.  As a product of the developments in technology that had taken place since World War I, especially in connection with airpower, the principle of distinction was simply disregarded. Both the Allies and the Axis powers engaged in the unlimited bombing of civilian populations with the intent to weaken their resolve to fight; hence, World War II tragically devolved into total war — and, of course, total destruction.[5]

It has often been noted that generals tend to prepare for the last war.  Apparently international lawyers are guilty of the same error in judgment.   In the shadow of the so-called Cold War, however, an outbreak of conventional warfare on the scale of the two world wars was impossible.  The two superpowers avoided direct confrontation with each other, especially after the Cuban Missile Crisis.  It is fair to say that the leadership on both sides did not merely scare each other, but also themselves, with the nuclear brinkmanship associated with that crisis.

As a result, there were no more conventional wars the consequences of which the 1949 Geneva Conventions were written to ameliorate.  Rather, both superpowers engaged in war by proxy around the world.  Internal wars, spurred by superpower meddling, became the norm as was evinced by the negotiation of Additional Protocol II of 1977.[6]  At or about that time, however, another form of violence had become prominent, that is, international terrorism which was perpetrated by a broad range of groups during the seventies including the IRA, the PLO, Beider Meinhof, the Red Brigades, FLQ and SLA.

Terrorism is, of course, effective because, like total war, it does not respect the principle of distinction.  But is it war and should it be addressed by humanitarian law?  Or is the international human rights regime the relevant law?  Or should an entirely different legal regime be developed with international terrorism solely in mind?

The Global War on Islam

This is hardly a new question, but it is becoming an increasingly urgent question.  It is old news that, after the attack on the World Trade Center, the Bush administration declared a Global War on Terror.  Despite repeated claims to the contrary, it is clear that it evolved into a Global War on Islam.

Should you doubt this, contrast the treatment of Timothy McVeigh, a Christian and a U.S. citizen, who detonated a truck bomb in front of the federal building in Oklahoma City on April 19, 1995, killing 168 people and injuring over 800 in an act of revenge for Waco and Ruby Ridge with the treatment of Anwar al-Awlaki, a Muslim and also a U.S. citizen, who openly advocated Jihadism and who was the spiritual advisor to individuals who perpetrated terrorist acts including the shootings at Fort Hood in 2009 and attempted terrorist acts including the so-called Christmas Day bombing in the same year.   While both were ultimately executed, McVeigh first received a full and fair trial which observed the entire panoply of Constitutional rights.[7]  Anwar al-Awlaki, who may have preached violence but killed no one, was summarily executed by means of a drone attack in Yemen on September 30, 2011.[8]  Moreover, two weeks later, his 16-year-old son, also a U.S. citizen, was killed in a second drone strike, also in Yemen.[9]

Plainly, both the United States and its European allies have securitized their relationship with their Muslim minorities.  Other states around the world have jumped onto the bandwagon, seizing upon the opportunity to declare their own troublesome Muslim minorities “terrorists,”  including the Chechens so-designated by Russia and the Uyghurs so-designated by China — this despite the obvious fact that both states were guilty of repressing these minorities, thus inviting armed resistance.

Within the United States we have seen the rise of a second rate McCarthy in the guise of Congressman Peter King, who has held extensive hearings on the prevention of the radicalization of American Muslims.[10]  It is an approach that is guaranteed to result in the very outcome King purports to wish to prevent.  Plainly, American Muslims have not failed to note that they are viewed as enemies of the state by virtue of their religion and their religion alone.

Witnessing the characterization of Muslims as the enemy based solely on their religious beliefs — in open violation of our first amendment guarantees — is deeply disturbing and there appears to be no end in sight.  Anti-Muslim propaganda appears to issue from every quarter.  The current administration, which billed itself as a human rights administration during its first run for office, made campaign promises to close GITMO, try the prisoners held there and/or set them free.[11]  There was substantial, and I would say ill-considered resistance to rendering justice on behalf of these men.  Moreover, as events have evolved, it is not at all clear that the resistance originated entirely outside of the administration.[12]

President Obama, in reference to the fact that his daughters will soon be dating, has felt at liberty to joke about ensuring their future dates’ good behavior by threatening them with drones.[13]  Putting aside a father’s archaic desire to guard his daughters’ virtue, I am in any event ill at ease with the joke.  This administration has foresworn torture in favor of the use of drones for the purposes of summary execution of suspected terrorists around the world, including American citizens.  The collateral damage has, moreover, been substantial.  It is not at all clear to me how this is an improvement over the previous administration’s international legal record whether we deem the appropriate law to be human rights or humanitarian law.  Surely death by summary execution is not better than torture and surely both are reprehensible uses of force.

Choosing the Right Law 

Plainly, the United States is permitted to prevent further terrorist attacks.  So once again I must ask, which is the appropriate law?  Is it human rights law, which would only provide for the capture and prosecution of terrorists?  Or is it humanitarian law, which permits the use of force only against legitimate military targets during time of war?  On a human rights theory, the United States is under an obligation to attempt to take the perpetrators into custody and provide them with a full and fair trial consistent with our constitution.  There are only limited circumstances under which criminal law would permit the U.S. government to kill a suspected criminal rather then capturing him or her alive and all of them involve the protection of the state and its citizens against the immediate threat of violence.

However, the present administration is obviously not disposed to proceed in a manner consistent with the human rights model.  Nothing made that fact clearer than the execution of Osama bin Laden.  Despite claims to the contrary, it is absurd to suppose that a highly elite Navy SEALs unit was incapable of capturing bin Laden alive and returning him to the United States to be prosecuted.[14]  Videos of bin Laden that emerged after his death showed a frightened old man who had hidden in a Pakistani compound for years to avoid capture.[15]  They underscored how vulnerable to attack he really was.  Moreover, there was plenty of evidence including archival film footage to establish that, while he may have been the face of international Jihadi terrorism, he was himself incapable of so much as properly handling a gun.[16]  It should have been obvious to an objective observer that he posed no threat to the members of the SEALs unit.  Whatever reasons may be offered, the plain truth was that the American military was sent to Pakistan to execute, not capture, the then weak old man.

The summary execution of suspected terrorists is clearly the preference of the current administration.  In contrast to the capture of the bulk of the Nazi leadership (sans Hitler, who committed suicide)  and their prosecution at Nuremberg in accordance with the rule of law, persons who notably killed not thousands but millions of unarmed civilians during World War II, there has been no attempt to bring alleged terrorists to justice after 9/11.   Hence, the summary executions continue apace.

Can a serious argument be made that humanitarian law applies?  I believe that it is a hard argument to make.  None of the hallmarks of war are here apparent.  Certainly, terrorists have political motivations.  But this fact is hardly sufficient to convert loosely organized groups into armies waging war.  The current administration acknowledges that the structural integrity of al-Qaeda has largely been undermined.[17]  While it is not clear to me that it was ever the highly organized, monolithic group that the last administration represented it to be, it is certainly not that anymore.

In any event, for humanitarian law to apply, the claim must be that terrorists can properly be targeted with force by the United States military by virtue of their status as enemy soldiers.  I would suggest that that claim is, on its face, a poor fit with the requirements of humanitarian law.  Indeed, every account of how humanitarian law justifies targeted killings that I have so far encountered assumes that summary executions of suspected terrorists are legitimate and then attempts to make this square peg fit into an unquestionably round hole.

We know that Additional Protocol II was written with nonstate actors in mind.  Article 1, entitled “Material field of application,” provides in paragraph 1 that the Protocol is intended to supplement Common Article 3 of the 1949 Geneva Conventions in connection with 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.”  Common Article 3 similarly provides that it applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”  Plainly, the remainder of humanitarian law, whether originating with the Hague or Geneva Conventions, has no application here as they are only relevant to interstate conflicts.[18]

One can make the argument that international terrorism, while by definition crossing international borders, nonetheless occurs in the territory of the State Party where the terrorist attack occurs.  One could further argue that at least some terrorist groups possess a sufficiently well established command structure to comprise an organized armed group.  International terrorists do not, however, “exercise such control over a part of [a State Party’s] territory as to enable them to carry out sustained and concerted military operations” nor indeed does that appear to be their objective.

Plainly, neither Additional Protocol II nor Common Article 3 have application to international terrorism.  Indeed, the provisions of Paragraph 2 of Additional Protocol II would appear, by its terms, to exclude international terrorism.  It states that the protocol “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”[19]  Where international terrorism preexisted the negotiation and adoption of Additional Protocol II, its drafters could have explicitly included it if they were so disposed.  All of the evidence suggests that they had no intention of including terrorism within its coverage.

Advocates of the application of humanitarian law to international terrorism bemoan the fact that the failure to designate terrorists as legitimate military targets gives terrorists the upper hand.  I can only say welcome to the world of law enforcement.  Yet we require all police agencies of the United States to observe the requirements of our law, including the Constitution of the United States of America to which they have sworn their allegiance.

The Third Choice

There is, of course, a third alternative and that is to develop a new body of law intended exclusively to address the question of terrorism.  It would not be odd to suggest that there are lacunae in international law, including the law of war.  Spies, for instance, are intimately involved in the prosecution of war.  The gathering of reliable intelligence is essential to the identification of military targets and the minimization of collateral damage.  Yet, even recognizing this fact, the law addressing the activities of spies and their treatment upon capture is admittedly underdeveloped.[20]

The United Nations has long tried to develop law treating the question of terrorism, to date with little success.[21]  The problem is always and invariably the same:  One man’s terrorist is another man’s freedom fighter.  This is not a position without merit even from an American point of view.  There can be little doubt that the British colonial administration would have deemed members of the American militias during our War of Independence to be terrorists were the concept available to them at the time.  International law has undergone extensive development since the American Revolution, however, and compelling politically motivated terrorists/freedom fighters to observe the principle of distinction would be a boon to the international community.

In the absence of a fully developed legal regime specifically treating terrorism, however, the default principle must prevail.  If an individual is not a soldier, then he or she is by definition a civilian.  As a civilian, he or she is not a legitimate target of military force.  The summary execution of a civilian is not consistent with either humanitarian law or the law of human rights.  We, the United States, its law enforcement agencies and its armed forces, are under an obligation to capture suspected terrorists and bring them to justice.  Targeted killing is simply insupportable under the law as it currently exists.

Conclusion

I have no love of terrorists.  I lived in New York City when the planes struck the World Trade Center – that symbol of American global economic dominance.  My mother lived only a short distance from the Pentagon when the planes struck that most prominent symbol of American military might.  I feared to discover if anyone I knew died in either place.  I have yet to recover from the images of individuals, who knowing that they were about to die, were left with the singular choice as to how.  I still cannot bear to reflect on their fall from the heights of the World Trade Center to their deaths while horrified New Yorkers helplessly looked on.  In sum, I have no confusion about why they call it terrorism, as I was indeed terrified.

But while I have no love of terrorism, I do love the law and I cannot permit the tortured interpretations to which it has been subject since 9/11 to pass without comment.  As a state that everywhere promotes the rule of law, we must act consistently with the law or be deemed utterly without credibility.  It is time for us to cease and desist from the practice of targeted killings.  It is time for us to do what is right because it is the right thing to do.