Last Wednesday, the New York Times brought us the news that a U.S. drone strike had killed Ibrahim al-Rubaysh---allegedly a top ideologue, spokesman, and operational planner for al Qaeda in the Arabian Peninsula. In a post over on Just Security, NYU Law Professor Ryan Goodman asked, “is a cleric like al-Rubaysh a legitimate military target?" It seems that al-Rubaysh, or a cleric like him, would have been a lawful target. He lost any possible legal protection associated with his religious activities, by engaging in operational planning, and apparently---based on AQAP's own statements---participating in combat. He was, in other words, evidently more than a mere cleric.
As Professor Goodman makes clear, “medical and religious personnel of the armed forces lose their protection in case of ‘hostile’ or ‘harmful’ acts outside their privileged function.” He continues, "for example, military chaplains – who are members of armed forces – could lose their legal immunity from attack if they participate in hostilities." (This line of argument is well established, but for information regarding the practice relating to the Geneva Convention's provisions for religious personnel, see this ICRC primer.)
However, Professor Goodman writes that he is “dubious about this line of reasoning," with regard to al-Rubaysh. He writes, "The public record suggests that al-Rubaysh was a theologian and his reported activities on behalf of AQAP as a spokesperson and ideologue fit that description. His participation in ‘attack planning’ would presumably have been on the basis of the same function in the group – that is, providing ethical and religious guidance."
I think that such a presumption might not be warranted here, and that the case for al-Rubaysh's operational involvement may be stronger than Professor Goodman suggests. Assuming al-Rubaysh's entitlement to protection as an initial matter, a direct participation rationale properly could have furnished a legal basis for the United States' strike---for a few reasons.
Take the government's account. The State Department had depicted al-Rubaysh as something of a soldier in sheikh's clothing---one who, among other things, served “as a senior advisor for AQAP operational planning.” Of course the government is hardly a disinterested party here. It is also true that, as outsiders, we do not know all the classified facts that underlie the United States' view. (In that respect, Professor Goodman's call for greater transparency certainly is well-founded.) On the other hand, it also seems unlikely that the United States had absolutely no evidence pointing to al-Rubaysh's operational role.
And with that in mind, we might also consider the words of AQAP itself---which, in announcing his death, released a long eulogy for al-Rubaysh. Translated to English, the pertinent part reads:
This after a hateful Crusader airstrike that killed him along with a number of his brothers the night of Monday, day twenty-four of the month Jumada Ath-thani after he spent approximately two decades of his live as a Mujahid in the Cause of Allah striking America and its agents. The beginning was in Afghanistan where he fought with his Mujahidin brothers against the Crusader campaign. He was among the heroes of Tora Bora. In his trip of Jihad his terror and danger was severe until Allah tested him with imprisonment in Guantanamo where he stayed for several years; it was a stage of preparation and break of a Mujahid. Then after Allah released him it didn’t take long before he joined the caravan of his Mujahidin brothers in the Arabian Peninsula where he was among them the good example and unique model that waged Jihad with his hands, fought with his weapon and battled with the Blessing of Allah. He refused to be anywhere else than in the first rows striking the enemies of Allah, leading the brigades of the youth – which made the zeal of the youth rise to the level of his zeal, making them look down at their courage compared to his courage – and being an excellent example with regard to bravery and courage while advancing towards Martyrdom.
Now, it is of course possible that AQAP's eulogy falsely ascribes certain deeds to al-Rubaysh. Some key phrases (“waged Jihad with his hands," served on the “first rows”) also might also be mere euphemisms for al-Rubaysh's theological work. Still, the document's internal structure seems to suggest otherwise, by treating his religious and operational activities separately: "Besides military and field work he...[taught] Da'iyah," it says. The eulogy, together with the United States' statement and other public sources, thus is rather inconsistent with a purely theological or spiritual job function.
Even if we accept al-Rubaysh as primarily playing religious role for al Qaeda, al-Rubaysh's role in AQAP did not mirror that of a chaplain providing purely humanitarian counsel in accordance with the duties of his ministry. Instead he was a propagandist who encouraged and incited the mass slaughter of civilians---having declared in the wake of the Charlie Hebdo attack that "disciplining anyone who blasphemes against [Mohammed]" is a duty incumbent on every Muslim, and commanded that, "the work must continue" and "every raid must be followed by another" until the world knows an insult of the Prophet means death. By issuing a fatwa that considered such murder obligatory, his religious advice crossed into command.
And that's just the thing. Al-Rubaysh's theological bent and larger role in AQAP together hint at something rather different than the work of an archetypal wartime chaplain---who ministers to troops, buries the dead, says last rites, and the like. Its the latter whom the laws of war presumptively protects. According to Pictet’s notes on the Geneva Conventions, for example, chaplains would bring “solace of religion and moral consolation to the wounded, the sick, and the dying,” and be “present at the last moments" of mortally wounded persons. And that's because, like doctors, the chaplains' mission was supposed to be humanitarian in nature; accordingly, “like medical personnel, they must obviously abstain from all hostile acts” (emphasis added).
It seems Al-Rubaysh had a different job description: that of a religious figure apparently integrated into AQAP's command structure, with duties that entwined jihadist theology and operations.