Constraining Targeting in Noninternational Armed Conflicts: Safe Conduct for Combatants Conducting Informal Dispute Resolution
Margulies, Peter, Vanderbilt Journal of Transnational Law
TABLE OF CONTENTS I. INTRODUCTION II. INFORMAL DISPUTE-RESOLUTION PROCESSES III. FLAWS IN TARGETING: DISPUTE RESOLUTION AS A CASUALTY OF WAR IV. STEWARDSHIP IN INTERNATIONAL LAW AND IMPLIED SAFE CONDUCT FOR DISPUTE RESOLUTION A. Harmonizing Obligations Under International Law B. Cultural Property and Self-Determination C. Operationalizing Stewardship: Implied Safe Conduct D. Implied Safe Conduct and Indigenous Dispute Resolution E. Challenges Posed by New Targeting Techniques and Technology 1. Signature Strikes 2. Autonomous Systems V. POTENTIAL OBJECTIONS VI. CONCLUSION
An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities, (1) the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.
While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent with the laws of armed conflict (LOAC), this Article argues that international law should require more. Suppose, for example, that the Taliban commander and the tribesmen, while currently fighting the United States and President Hamid Karzai's regime installed in Afghanistan after the post-September 11 U.S. intervention, were conducting a jirga--a meeting with elders--to decide whether they should make peace with the Karzai regime. Or suppose that the commander was conducting a jirga with villagers to determine property rights. If the villagers left before the strike, the strike against the Taliban fighters would similarly be legal under LOAC. However, a strike would devalue the jirga, a time-honored means of dispute resolution (2) in a country that has seen its fill of war for more than three decades.
The scenarios just described are not purely hypothetical. Some evidence suggests that informal negotiators have been either targeted or become collateral damage in U.S. drone strikes. (3) This evidence might be unreliable. However, if it is accurate, even in part, that should be a concern even for those who support the broad outlines of the U.S. targeting strategy. (4) Responding to this concern, this Article argues that informal negotiators from an armed non-state group should receive an "implied safe conduct," not only shielding them from targeting but also imposing an affirmative duty on a state party to a noninternational armed conflict (NIAC) to ensure their safety. (5)
The expansion of implied safe conduct suggested here reflects what can be called a "stewardship model" for third-party states, such as the United States, that participate in NIACs in host countries, such as Afghanistan, Pakistan, Somalia, or Yemen. A stewardship model, which this author has also advanced in another recent piece dealing with the interaction of American and international law, (6) seeks to reconcile LOAC and international human rights law in order to promote the preservation of indigenous governance and the transition to civil order in the host state. (7) Preserving informal dispute-resolution processes is one component of stewardship. Discounting the need for this preservation may increase kill rates in the short term but will leave a host state unstable in the long term, undermining the rationale for the third-party state's intervention.
Stewardship duties are hardly unknown in LOAC. The law of occupation, which typically kicks in after the conclusion of an armed conflict, has been described as a framework of "temporary trusteeship." (8) The trusteeship of occupation must preserve the laws of the occupied state; this Article argues that informal dispute-resolution processes such as jirgas and shuras (9) are part of that law. …