Readings: Jennifer C. Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone

By Kenneth Anderson
Saturday, May 5, 2012, 4:32 PM

In the next few days, the Naval War College will be devoting a workshop to the topic of the legal geography of the battlefield.  That includes the question of whether there is one, separate from where the targetable fighters in a conflict go.  (For various family reasons, I am unable to attend the workshop, and my best wishes to everyone there.)  This topic is of keen interest to me and, I believe, of considerable importance in use of force questions into the future.  A year ago I put out a short discussion of how this debate has evolved, and even how it came to be a debate - an essay titled, "How We Came To Debate Whether There Is a Legal Geography of War," which appeared in a Hoover Institution online volume.  That title somewhat says it all (Emory's Laurie Blank and others have also put out scholarship on this question).

Here's why it's important; apologies for taking space to frame the debate.  If the law of armed conflict is supposed to be a law for the special conditions and circumstances of armed conflict, then we need to know when and where it applies.  There's a law for armed conflict, but also (and mostly) a law of ordinary life - ordinary domestic law and human rights - for everything else.  The traditional answer was that armed conflict law applied under conditions of hostilities, and although hostilities could and sometimes did follow the participants around to far-flung places, on account of technological limits and related practical reasons, armed conflict tended to have a de facto geographical space.  Moreover, if one wanted to invoke the law of armed conflict in some place, the presence of combatants would not by itself suffice; someone would in fact have to undertake hostilities (including initiating them).  So the conduct of hostilities, rather than geography as such, was the traditional touchstone - but in fact hostilities for all sorts of practical reasons tended to stick to geographical zones.  The hostilities standard also had the virtue of keeping jus ad bellum issues (including sovereignty, neutrality, borders) distinct from the jus in bello issues (irrespective of whether ad bellum law was violated, the law of armed conflict would apply in the conduct of active hostilities).

The post-9/11 environment shifted matters in several important ways.  One was that the early Bush administration moved sharply away from an actual-conduct-of-hostilities standard for where the law of armed conflict applied to a standard based around a "global" war on terror.  Moreover, it adopted the "global" framework not on the basis that it actually intended to conduct hostilities in its global operations, but because it wanted to benefit from the legal regime of armed conflict in order to be able to detain under those standards, rather than, well, fight.  This distinction between the acknowledgment that hostilities might be initiated different places where participants went and so was "global" in that limited sense, and an assertion that a government could invoke the law of war anywhere in the world that it wanted to engage in something well short of actual hostilities - detention - is crucial.  This shift in the traditional standard produced pushback from human rights groups and the ICRC in particular, alarmed, I would say, at the erosion of the traditional position.

Another shift was simply occasioned by the rise of new technologies such as drone strikes that permitted increasingly precise and discrete force to applied remotely, at a distance.  What law should apply in situations of strikes occurring by remotely piloted vehicles in small-scale kinetic strikes aimed at particular individuals?  Finally, and somewhat distinct from the shift in technologies, the quasi-covert, or at least not-conventional, nature of the strikes, including their conduct by the CIA and not only military actors, raised questions as to whether the invocation of armed conflict law was actually blessing a potential shrinkage of the legal "space" of ordinary law.

All of this contributed to the rising counter-claim that the place in which the law of armed conflict applied had to be a "hot battlefield," "conventional battlefield," a "zone of conflict," or other concepts that essentially drew geographic boundaries to delineate where law of armed conflict applied and where it didn't.  By the later Bush administration, and then formally in the Obama administration, the "global" concept of a war on terror, in the special sense above, had been retired, and - so I thought at the time - everyone could relax and go back to the traditional standard of conduct of hostilities.  If you actually initiated hostilities, at least against folks who could plausibly be characterized as participants (leaving aside all the arguments over the standards for direct participation in hostilities), then the law of armed conflict applied.  But you actually had to conduct hostilities, not just detain someone.  I was surprised, however, when the ICRC, rather than shifting back to the traditional standard, instead doubled down on the legal-geography-of-war.

I hope I am not distorting positions too much in stating things this way, but to the not-short list of issues in which the US view of the of armed conflict differs at the fundamental level from the ICRC, we must now add this question of legal geography of war.  Some of the issues on which the US differs from the ICRC position are ones which are important, but essentially "legacy" issues - Guantanamo detainees, for example, not likely to be repeated.  But this is one with important implications for the future, because it goes to the heart of what will likely be an emerging new strategic paradigm for using force, by the US and other states over time - covert or at least unacknowledged uses of force in ways that are small-scale, discrete, precisely targeted - possibly at single individuals - intelligence-driven, and accomplished at a remote distance.

Regardless of what one thinks the rights or wrongs of the respective legal positions to be, I have grave pragmatic doubts about the wisdom of embracing the advocacy groups' purist position as against the likely direction of an important strand of armed conflict facilitated by new technology. To be blunt, I doubt very much that the ICRC can make it stick, at least outside of sympathetic venues such as tribunals or the legal opinions of states that don't much engage in conflict.  Better, I would have thought, for the ICRC to put itself in at least roughly the same ballpark as the US and seek to find ways to encourage attribution-of-attack rules, standards for necessity and distinction above those of conventional warfare, and other ways that would avoid a "ships passing in the night" moment of fundamentally irreconcilable legal approaches.  Be that as it may, unless meetings such as that taking place at the NWC are able to find ways to bridge the conceptual gaps, it is hard not to see yet more fragmentation of legal views among leading players in the law of armed conflict and ever less meeting of the minds.

To this debate, enter Jennifer Daskal.  A former Human Rights Watch lawyer and Obama administration national security lawyer, she is now doing a fellowship at Georgetown, writing on these issues.  Her most recent paper directly takes up the geography of the battlefield, and proposes a method for taking it into account in both detention and targeting.  This is an impressive paper (appearing shortly in University of Pennsylvania Law Review), and I say this as someone who, from fundamental disagreement with core premises,  disagrees with important parts of it.  I learned more about how different folks in this debate see these fundamentals than, really, any other academic source - in large part because it is crystal-clear on where the positions diverge.  At the same time, it goes further to propose a new and nuanced framework for addressing many of these issues.  "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone," at SSRN.

The most important takeaway, given what I have said above by way of lengthy introduction, is that Daskal operates from the standpoint that the answer to the geography of the battlefield has to take targeting and detention as together governed by the same rules and framework.  Indeed, under this framework, detention and lethal targeting are part of the same legal spectrum, one that ranges from the threat of the use of force that makes detention possible to a missile strike using lethal force against a target.  If one accepts that these are part of the same activity in the law of war, then it becomes - or at least it became for me - far easier to see why and how the notion of geographic limitations of the "hot" battlefield are important.  Put another way, it reaches back to the overreach of the early Bush administration to use the law of war for detention operations unrelated to hostilities.

My own view, unsurprisingly, is that targeting in hostilities is a distinct and discontinuous set of rules from detention, whether on a conventional battlefield or anywhere else.  But if one does not believe in this sharp discontinuity, then it is much easier for me to understand why this is such a fundamental debate.  It is also true, however, that if one's concern is not just detention, but also a belief that the combination of more precise but also more remote targeting creates its own issues about geography (as I take the ICRC's concern to be), you will continue to be just as concerned as before; somehow resolving the detention issues will not solve everything.  Wherever one comes out on these questions, Daskal's paper is both enormously clarifying and exceptionally nuanced in offering an alternative framework.  Abstract below.

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geography of the battlefield and related limits on the state’s authority to use lethal force and detain without charge. To date, the legal and policy discussion on this issue has been locked in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict and broad detention and targeting authorities extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by law enforcement, tempered by international human rights norms.

This Article breaks through the impasse. It provides a new and comprehensive law of war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state’s need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called “hot” battlefield and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law of detention outside zones of active hostilities – subjecting their use to an individualized threat assessment, a least harmful means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational non-state actors in the future.