US Targeted Killing Policy Unjustified
JURIST Contributing Editor Gabor Rona, International Legal Director of Human Rights First, argues that the decision to use the legal classification of "enemy combatant" does not justify the US policy of targeted killings..
Friday, February 24, 2012
Earlier in the week, in a speech at Yale Law School, the Pentagon's chief lawyer, Jeh Johnson, delivered a spirited defense of US targeted killing policy. He did not say much that the administration has not previously asserted, but he did say it in a way that provides greater reason to believe that US killing policy and practice is beyond the scope of applicable international law. The essence of Johnson's defense of targeted killing artfully obscures a major bait (with talk of detention powers) and then switch (to targeting).
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Johnson uses statutory and judicial affirmations of the scope of detention power that is based on membership or association to justify killing. His focus on "groups" is a reference to "status-based" targeting, rather than individuals and "conduct-based" targeting. In essence, Johnson's conflation of grounds for detention and grounds for extrajudicial killing amounts to "if you can detain them, then you can kill them."
Status-based targeting is fine for combatants in armed conflicts between states, where members of the armed forces are easily distinguishable from the civilian population and therefore, targetable simply because of who they are. In armed conflicts against non-state armed groups who do not wear uniforms and are often difficult to distinguish from the civilian population, targeting determinations rightfully require a higher threshold of imminent harm. They must be based on conduct: either that the suspect is "directly participating in hostilities" (DPH), or that he or she performs what the International Committee of the Red Cross (ICRC) calls a "continuous combat function" (CCF) in the armed conflict. It is also noteworthy that this CCF justification remains controversial, due to the fear that it places too much pressure on the principle of distinction — the most fundamental principle of the laws of armed conflict designed to insulate civilians from hostilities. Whether or not you buy into CCF, mere "membership" (whatever that means in the case of a diffuse, non-state group or ideology, let alone being an entity "associated" with that group or ideology) is not enough to justify extrajudicial killing.
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Rather than a successful defense of targeted killing policy, Johnson's speech is an admission that US practice is beyond the scope of international humanitarian law — the body of law that governs war, or armed conflict. As such, US practice is also necessarily beyond what international human rights law would permit outside of war, since the international law rules for killing in peacetime require a higher threshold of imminent harm than the rules applicable to war.
http://jurist.org/hotline/2012/02/gabor-rona-targeted-killing.php
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