University of Lincoln Law lecturer, Max Brookman-Byrne questions whether the targeting of ISIS members by lethal force is lawful.
The recent deaths of Sally Jones, a member of Islamic State, and her 12-year-old son serve as a reminder that the law on the targeting of militants by armed drones is still fraught with ambiguity stemming from the asymmetrical nature of modern global conflict.
In situations where there is an armed conflict, a particular set of international laws apply known as International Humanitarian Law (IHL). These rules give states greater scope to use lethal force, which ordinarily would be highly constrained. During armed conflicts, IHL allows members of a state’s armed forces — ie recognised armed forces attached to the country’s leadership — to be targeted at any time. There are restrictions in place that prevent medical or religious personnel from being targeted.
This same categorical approach is not permitted when it comes to members of non-state armed groups. As they are not members of a state’s armed forces, the members of these groups are viewed as civilians in law. Within IHL, civilians are protected against attack and therefore may not be targeted unless they directly participate in hostilities.
The International Committee of the Red Cross (ICRC) has interpreted “direct participation in hostilities” to mean that members of non-state armed groups will lose their protection as civilians only if they carry out a “continuous combat function”. Some have argued that the ICRC approach is too restrictive, placing dangerous individuals outside the list of legitimate targets. The United States, for instance, argues that formal membership of a non-state armed group such as Isis, even in a non-combat role, should be sufficient reasoning for someone to forfeit their civilian protection. Others have argued that the ICRC approach is too broad and that an individual should be targeted only if they are carrying out a specific hostile act, not just by virtue of their membership.
Considering the complexities of this debate, ultimately the ICRC’s position can be seen to occupy a middle ground between these two perspectives, and is therefore a useful tool for analysis.
The question remains, however, what is considered to be a participation in hostilities? Can it be defined as the participation in a specific hostile act, carrying out a continuous combat function or can it be interpreted much more broadly, to include the participation in propaganda?
The rise of social media has added another dimension to modern conflict. For militant groups such as Isis social media is a widely utilised vehicle of recruitment and propaganda, used to encourage individuals to travel to war zones, training camps or to carry out attacks on the home soil of perceived enemies.
While it is clear that this is neither a responsible, nor ethical activity for a person to participate in, and is also likely to be criminal under domestic law, the question must be raised — does the direct involvement in the creation or distribution of propaganda render someone a lawful target for lethal force?
The interpretation of the ICRC specifically argues that recruitment and propaganda activities do not equate to a continuous combat function, nor to direct participation in hostilities, which would suggest not.
IHL is designed to limit hostilities, not enable them. It should not be treated as a set of rules giving broad powers to states to target individuals, but as a body of law to protect those affected by conflict. This is particularly so in terms of conflicts between a state and a non-state armed group, in which there is more scope for civilians to become affected by, and embroiled in, conflict.
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