Targeting Individuals Belonging to an Armed Group

By Gaggioli, Gloria | Vanderbilt Journal of Transnational Law, May 2018 | Go to article overview

Targeting Individuals Belonging to an Armed Group


Gaggioli, Gloria, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I.      INTRODUCTION                                       902  II.      PRACTICAL AND LEGAL CHALLENGES IN                  903           LIGHT OF THE FIGHT AGAINST TERRORISM III.      THE NOTION OF "ORGANIZED ARMED GROUP"              905           UNDER INTERNATIONAL HUMANITARIAN LAW  IV.      THE NOTION OF "MEMBERSHIP" IN AN ORGANIZED         910           ARMED GROUP UNDER INTERNATIONAL           HUMANITARIAN LAW   V.      CONCLUSIVE REMARKS--FURTHER CLARIFICATION          916           THROUGH A LEGAL-EMPIRICAL APPROACH? 

I. INTRODUCTION

Nowadays, the prevailing view among IHL specialists and states is that in an NIAC, (1) members of an organized nonstate armed group may be targeted and killed in a similar way as members of state armed forces. (2) A minority of authors maintain that members of organized armed groups may be targeted only when and for such time as they directly participate in hostilities. (3)

In other words, members of organized armed groups would generally be considered targetable based on their membership in such groups. There would be no need to prove that they are directly participating in hostilities in order to consider their targeting as compliant with IHL. Members of organized armed groups would thus not benefit from the famous "revolving door" of protection in the same way as civilians--who lose protection against direct attack when they engage in direct participation in hostilities, but regain it as soon as such participation ends, such as when they resume their civilian activities. (4)

This entails that targeting based on membership in an organized armed group requires answering two key questions. First, what is an organized armed group for the purpose of IHL?; and, second, how should one determine membership in such an organized armed group for the purpose of targeting? These two crucial questions raise a number of legal and practical challenges, especially with respect to the contemporary "war on terror" that is being waged by a number of states against alleged transnational armed groups such as al-Qaeda and the Islamic State as well as against so-called associated forces.

This essay will provide an overview of these main practical and legal challenges in defining organized armed groups and membership therein in light of the contemporary fight against terrorism (Part II). Then it will provide an IHL analysis of the notions of "organized armed group" (Part III) and membership in such groups for the purpose of targeting (Part IV) and apply such concepts to entities such as al-Qaeda and the Islamic State and their alleged members. Conclusive remarks (Part V) will suggest the need for further research that is not only legal but also empirical in order to properly clarify the crucial notions of "organized armed groups" and "membership" in such groups under IHL.

II. PRACTICAL AND LEGAL CHALLENGES IN LIGHT OF THE FIGHT AGAINST TERRORISM

Contemporary armed conflicts show that there is a multitude of armed groups, each with very different characteristics, structures, and ways of operating. At one end of the spectrum, there are "traditional" armed groups, such as the Tamil Tigers (LTTE) in Sri Lanka, the FARC in Colombia, or the Hezbollah in Lebanon. These groups are well-organized and have a state army-like structure. They have clear and distinctive uniforms, which allow recognizing them at a distance. At the other end of the spectrum, there are amorphous armed groups, or rather networks, such as al-Qaeda, which continue to rally members and which seemingly have a common strategy despite their decentralized character. The Islamic State is a particularly intriguing organization as it has two faces. It somehow combines a highly-organized state army-like structure in Iraq and Syria notably, while at the same time operating as a worldwide network made of various terrorist cells or individuals operating more or less independently. …

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