When Can A Government Kill Its Own Citizen?

Over the week­end, news emerged that the British gov­ern­ment delib­er­ate­ly tar­get­ed and killed one of its own cit­i­zens in Syr­ia at the end of August. And that deci­sion is rais­ing the same con­cerns that once float­ed around the U.S. deci­sion to tar­get al Qae­da leader Anwar al-Awla­ki sev­er­al years ago.

While US and UK law are obvi­ous­ly very dif­fer­ent, they both require leg­isla­tive approval to go to war. And both leg­is­la­tures — the US Con­gress and the British Par­lia­ment have declined to declare war on ISIS. And much like the U.S. declared the Awla­ki assas­si­na­tion a unique cir­cum­stance, so too has the Cameron gov­ern­ment: this time, he says, the sit­u­a­tion was so unique, and the threat so unique­ly dire, that killing was not only defen­si­ble but per­fect­ly legal.

From the Amer­i­can per­spec­tive, there is a lot of mer­it to that argu­ment. Despite the killing of at least three oth­er Amer­i­cans in drone strikes since 2002, Awla­ki is the only one delib­er­ate­ly tracked and killed; the oth­ers were inci­den­tal to oth­er strikes, as much bad luck as any­thing else. There are a lot of prob­lems with how the U.S. has approached the top­ic of killing its own cit­i­zens (I addressed these in a 2013 white paper for the Nation­al Secu­ri­ty Net­work). Because the U.S. is not for­mal­ly at war in Yemen, many argue that any mil­i­tary activ­i­ty there is there­fore invalid. While such an argu­ment relies on a sup­port­able, but I think ulti­mate­ly naive read­ing of domes­tic laws, it is actu­al­ly a far weak­er argu­ment under inter­na­tion­al law.

Inter­na­tion­al law right now does not con­vey priv­i­leges from mil­i­tary strikes if the cit­i­zen of one coun­try joins the mil­i­tary of anoth­er coun­try at war. So if Amer­i­ca were at war with, say, Chi­na, and an US cit­i­zen­ship decid­ed to join the Chi­nese mil­i­tary to fight on behalf of Chi­na, a lethal strike against that cit­i­zen is per­fect­ly legal. By every def­i­n­i­tion of an ene­my com­bat­ant in inter­na­tion­al laws, it is legit­i­mate.

When you’re deal­ing with non-state actors, though, peo­ple get uncom­fort­able. Because they are not nation­al mil­i­taries fight­ing in uni­form, the stric­tures of IHL and LOAC aren’t as clear about how they are to be treat­ed (for exam­ple, when a nation­al mil­i­tary uses civil­ian shields, any civil­ian deaths that result are their respon­si­bil­i­ty; there is an effort to make nation­al mil­i­taries respon­si­ble for civil­ian deaths when they strike at non-state actors who also employ civil­ian shields — an inver­sion of the cur­rent intent of the law to pre­vent the use of civil­ian shields).

From the stand­point of meet­ing the cri­te­ria for being con­sid­ered a mil­i­tant, there are all sorts of ques­tions, like what does it mean to “join” one of these groups? Is it a vow, a set of actions, and can that even be cod­i­fied? And how does one define “at war” with them, to there­fore jus­ti­fy using vio­lence?

Despite the ret­i­cence to out­right declare a war on ISIS, any com­mon sense under­stand­ing of what it means to be “at war” would also show that the US and UK are “at war” with ISIS (and al Qae­da, while we’re on the top­ic). ISIS at least con­sid­ers itself a state — it says so in its very name, so that should make it a bit eas­i­er. It does not. The legal def­i­n­i­tions of war com­ing from our respec­tive nation­al leg­is­la­tures are very fuzzy (by design, since no one wants to be ulti­mate­ly respon­si­ble), but from an inter­na­tion­al law per­spec­tive ISIS is clear­ly a mil­i­tary force and Syria/Iraq are clear­ly war­zones. That’s at least some­thing. But is it enough?

The US and UK gov­ern­ments think so. When one of their cit­i­zens decides to move to a war zone, and vol­un­tar­i­ly joins the oppos­ing mil­i­tary force, and declares his or her intent to con­duct war against their own gov­ern­ment, the US and UK gov­ern­ments have decid­ed that that clears their legal oblig­a­tion to pro­tect said cit­i­zen: after all, they are mak­ing a vol­un­tary deci­sion to join an orga­ni­za­tion that has declared itself at war with their gov­ern­ment.

Clear­ly, many peo­ple dis­agree, and still think that our gov­ern­ments should not delib­er­ate­ly strike at our own cit­i­zens who choose to declare war against us. And it won’t go away soon. I’m not sure there is an obvi­ous way out of this dilem­ma, either — inter­na­tion­al law sim­ply does not han­dle non-state actors very well at the moment, and it is unlike­ly that it will be changed to do so any­time soon.

But these fun­da­men­tal ques­tions, of what “war” actu­al­ly is, and what the stan­dards are for a lethal strike, and what mem­ber­ship in one of these groups actu­al­ly mean, and what the law real­ly allows, have grown up in an envi­ron­ment where every­one, from human rights activists to the Bush admin­is­tra­tion, have been work­ing with­in vague legal and eth­i­cal frame­works. As such, it often comes down to a debate over one’s nor­ma­tive assump­tions of how the world should work. Which cer­tain­ly eats up a lot of clicks on the inter­net, but it ulti­mate­ly does not move us any clos­er to answer­ing these ques­tions.

Update: 

Here is the dilem­ma I not­ed in my blog­post ear­li­er, on dis­play. If you unpack Younge’s log­ic, the British gov­ern­ment should have wait­ed until after Reyaad Khan, Ruhul Amin and Junaid Hus­sain had trav­eled to a loca­tion where they could have been arrest­ed and put on tri­al, even if that meant allow­ing them to com­mit, in his own words, “heinous ter­ror­ist acts.”

As the guy not in charge, he has the lux­u­ry of say­ing “of course you should allow ‘heinous ter­ror­ist acts’ because killing a spe­cif­ic ene­my com­bat­ant who is also a cit­i­zen is nev­er jus­ti­fied.” But the peo­ple who have to seek votes to remain in office, and thus jus­ti­fy their actions to the pub­lic, turn around and say “But actu­al­ly! If we have the means to pre­vent a ‘heinous ter­ror­ist act’ com­ing from an active war zone before it can be com­mit­ted, and it requires vio­lence, we will have pre­emp­tive­ly and defen­sive­ly to keep our cit­i­zens safe.”

This is a nor­ma­tive debate, in oth­er words, about the accept­able bal­ance between a zero tol­er­ance for com­mit­ting ter­ror­ism and a zero tol­er­ance for allow­ing extra­or­di­nary cir­cum­stances in a com­plex envi­ron­ment no one real­ly knows how to han­dle. By pre­sent­ing it in such a lop­sided way, where he draws a fair­ly arbi­trary dis­tinc­tion between British cit­i­zens and non-British cit­i­zens fight­ing side by side on the same for­eign bat­tle­field, Younge is actu­al­ly attack­ing our abil­i­ty to under­stand this event, rather than con­tribut­ing to it.

Relat­ed is the very odd argu­ment that a head of state should sub­mit every sin­gle deci­sion made in a con­flict zone to a court for review if it is going to impact a cit­i­zen who vol­un­tar­i­ly joined an ille­gal ter­ror­ist group. No gov­ern­ment is going to voluntar­i­ly con­sent to such a demand, in the U.S. Arti­cle 2 and the sep­a­ra­tion of pow­ers means such a solu­tion is uncon­sti­tu­tion­al (and also at the very least high­ly unten­able in the UK), and it’s a weird belief that a judge has bet­ter per­spec­tive on what con­sti­tutes an immi­nent threat to the home­land than, say, the defense minister/secretary.

The real­i­ty of such a sys­tem, should it ever come to pass, is that it would rarely be more than a rub­ber stamp for exec­u­tive author­i­ty, just like the FISA courts, since judges know they do not pos­sess the req­ui­site knowl­edge to eval­u­ate the many pieces of infor­ma­tion that go into the deci­sion to car­ry out a strike. I just don’t see how that’s work­able, but that’s what peo­ple like Younge seem to want. I dare­say they have no idea how this process real­ly works or what the laws gov­ern­ing them real­ly are.

joshua.foust
Joshua Foust used to be a foreign policy maven. Now he helps organizations communicate strategically and build audiences.