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.
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.