Earlier this year, I published an article called "Folk International Law," in which I argued that there were many unappreciated and little understood costs to the convergence of LOAC and international human rights law. I suggested that the legal debate over targeted killing had driven US-based human rights advocates to contribute to and participate in a bizarre legal admixture of IHRL, IHL and jus ad bellum in order to attempt to impose some legal regulation on the seemingly extra-legal lethal strikes on targets outside of situations of armed conflict. I suggested that many lawyers seeking to influence the Obama administration’s decisions had accepted an approach to global NIAC that treated distinct bodies of international law as a policy toolkit that could be used to create “folk international law” norms that were not recognizable to most international lawyers outside of the immediate US conversation.
This week, Michael Isikoff reported in Yahoo News in a story entitled “White House exempts Syria airstrikes from tight standards on civilian deaths,” that a NSC spokeswoman said “that a much-publicized White House policy that President Obama announced last year barring U.S. drone strikes unless there is a ‘near certainty’ that there will be no civilian casualties- ‘the highest standard we can meet,’ he said at the time---does not cover the current U.S. airstrikes in Syria and Iraq.”
The article goes on to quote the government spokesperson as saying that the war against ISIS “Like all U.S. military operations, are being conducted consistently with the laws of armed conflict, proportionality and distinction.”
Harold Koh is quoted, “They seem to be creating this grey zone . . . If we’re not applying the strict rules [to prevent civilian casualties] to Syria and Iraq, then they are of relatively limited value.”
It seems to me that many of us, including Professor Koh, have participated in the creation of this very grey zone. In the desire to remain engaged with administration decisionmakers, and to ensure that some protections were built into the “global NIAC” theory of targeting non-state armed group fighters wherever they are, leading actors manipulated IHL (as to targeting) and IHRL (as to imminence) to provide some kind of regulation for “targeted killings.” When the administration proffered its shockingly stringent standards for determining the legality and tactical approach to individual strikes, rather than saying that the standards were not rooted in any discernable legal framework (but rather looked like a bizarre blend of IHL and IHRL) and that they should not be applied, many were backed into the position of expressing admiration for the President’s requirement that there be a “near certainty that non-combatants will not be injured or killed.”
The Obama administration’s legal approach to global NIAC and to targeted killing is a result of convergence-based law and lawyering. Arguments devised in moments of great urgency, and in a sense that some rules (however poorly constructed, and however faulty under existing international law) were better than no rules, a la the early Bush administration. The problem is that, having contributed to this mess, it is difficult to step back and criticize it.
Today, the American public is confused (a number of friends and colleagues responded to the Isikoff article by expressing outrage that President Obama had decided to “lower” the standards applicable to civilian casualties), and the international legal arguments available to those uncomfortable with the “Forever War” are considerably weakened by the “folk international law” that many liberal international lawyers helped to create. Traditional, currently binding LOAC does not require a near-certainty that a lawful attack will not kill civilians. Traditional, currently applicable international human rights law does not allow states to use extrajudicial lethal force against individuals because they assess that there are “no reasonable alternatives.” As currently understood and interpreted by the ICJ, jus ad bellum does not allow states to invade the territory of a sovereign because that sovereign is “unable” to govern parts of its territory. Once you start picking and choosing from these distinct bodies of law to create a confusing mélange of vague norms and principles outside of their intended juridical framework, it becomes very difficult to control the longer-term consequences for the stability and effectiveness of international law to regulate armed conflict. Commanders in Syria and Iraq should be able to rely on a clear, predictable set of binding rules that govern the use of force in armed conflict. And civilians on the ground should know what actions will cause them to lose their immunity against direct attack. The public should be able to understand the general framework and logic of those rules, and should be prepared for the reality that war is bloody, harms people and their things, and almost never functions on the basis of “near-certainty.” And human rights advocates should use the their moral and legal credibility to monitor and criticize the government when it oversteps these clear and predictable rules.
The blending of human rights into LOAC was meant to protect people. It was meant to “humanize” humanitarian law. It was meant to introduce increased accountability into IHL. But as I watch people debate the implications of a concept that never should have been accepted, and as the Pentagon is forced to explain to the public that it is not backtracking on civilian protection, but rather applying the only binding standard that governs the conflict, I wonder if we are seeing the unexpected costs of bending international law beyond its intended boundaries.
Naz K. Modirzadeh is the founding Director of the Harvard Law School Program on International Law and Armed Conflict, a new research program at HLS dedicated to exploring contemporary challenges concerning public international law and armed conflict. The views expressed here do not represent those of PILAC.