International Law

Targeting Non-Al Qaeda Members in Yemen (?): The Role of Consent

By Ashley Deeks
Thursday, May 15, 2014, 4:30 PM

The other day both Bobby here and Ryan Goodman at Just Security here picked up on news reports that DOD may be willing to provide additional military cooperation (including logistics and direct fire capabilities) to the Yemeni government.

Ryan then takes the opportunity to ask: what type of force is the U.S. government undertaking in Yemen already? Is it only attempting to capture or kill “two dozen of al Qaeda’s most dangerous operatives, who are focused on attacking America and its interests,” as the NY Times reports? Or, as Ryan (and Long Wars Journal) suggest, is the USG already targeting (or directly helping Yemen target) low level fighters and commanders that pose serious security threats to the Yemenis?

It is troubling that we don’t – this many years down the road – have clear answers to those questions. But what also has been little discussed is the international legal basis for the United States to help Yemen target its own local enemies: consent to the use of force by the Yemeni Government.

I previously have written here about the role of consent to the use of force as an independent international legal basis for conducting lethal operations abroad. Though many recite consent as a sufficient international ground for one state to assist another state militarily, difficult and basically unresolved questions remain. What, exactly, can the host government consent to? How well (if at all) must the assisting state understand the host partner’s legal framework? What law of war or international human rights rules must the assisting state follow in working directly with the host state to engage in lethal force against the host’s enemies (as in a civil war)?

Consent to the use of force is not inherently objectionable. In fact, it can play a positive role, for instance, if legitimate governments come under threat from internal sources and need the assistance of foreign states to defend their regimes. But consent also offers opportunities for exploitation and cutting corners, particularly when (as here) there is a lack of transparency regarding the underlying activities to which the host state is consenting. Consent could, for example, allow a state such as Yemen to circumvent its own domestic laws by “authorizing” the United States to do something Yemen itself could not. And consent can allow a state such as the United States to avoid asking hard questions about how Yemen views its struggle and what legal rules Yemen must legally apply to that struggle. But because international law currently allows one state to accept another’s consent at face value, there are no obligations to press beyond basic consent to ensure that the host state is adequately complying with its own domestic and international obligations.

If we think of the United States as effectively standing in Yemen’s shoes in fighting alongside Yemeni forces, then one possibility is that the United States itself might need to comply with some of the restrictions the Yemeni forces themselves face. Further, the interplay between different states’ legal interpretations can be complicated. What if Yemen’s views about who is lawfully targetable differ from the USG’s? What if the United States interprets jus in bello “proportionality” requirements differently than Yemen does? Perhaps the highest common denominator would prevail at an operational level, though we lack sufficient evidence to know how this would play out in practice.

These questions all seem ready to bubble to the surface if the USG chooses to assume a more direct role in Yemen’s non-al Qaeda-related fighting. In taking such actions, the United States obviously would need to comply with its own domestic obligations (such as War Powers reporting) and applicable international legal obligations, including the laws of war relevant to the type of conflict at issue. DOD presumably also is engaged in “rule of law” training with its Yemeni counterparts, to help minimize cases in which Yemen might violate law of war obligations during fighting. But it would be useful to have a more explicit discussion about the role of consent to the use of force, especially here, where Yemen does not seem overly constrained in discussing U.S. operations publicly.