Thoughts on Brian Egan's ASIL Speech

Last Friday, the new State Department Legal Adviser, Brian Egan, gave a speech on “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” at the American Society of International Law (ASIL) annual meeting. His address clarified the administration’s views with respect to several important aspects of the counter-ISIL campaign. Marty Lederman provided a broad summary over at Just Security and here at Lawfare Jack Goldsmith, Ashley Deeks, and Daniel Bethlehem have been discussing Egan’s treatment of imminence under the jus ad bellum. We’ve highlighted a few additional aspects of the speech worth noting in particular.

Military-Age Males

Egan provided an important clarification concerning the classification of military age males as combatants either for targeting or casualty assessment purposes. Former CIA Director General Michael Hayden recently suggested that military age males in the vicinity of a target during a strike could also be targeted without further evidence that they were members of al Qaeda. We specifically urged the administration to “repudiate General Hayden’s claim that intentionally targeting military-age males near a target is ‘representative’ of United States practice.” And repudiate it Egan did: “To elaborate further and correct some possible misunderstandings regarding who the United States targets as an enemy in its ongoing armed conflicts…, it is not the case that all adult males in the vicinity of a target are deemed combatants.” [Emphasis added]

In response to a question from Charlie Savage during the Q&A, Egan also clarified that military-age males in a strike zone are not automatically counted as combatants during post-strike casualty assessments. As Savage mentioned, previous reports alleged that the administration counted all military-age males in a strike zone as combatants, which “may partly explain the official claims of extraordinarily low collateral [civilian] deaths.” He also noted that documents released by The Intercept back in October suggested the same. While Egan was quite clear that the administration does not count all military-age males as combatants when conducting casualty assessments, he did not provide any explanation for the reports to the contrary by the New York Times and The Intercept.

Criteria for Determining Who is Targetable

So how does the administration decide who is a combatant? In a welcome move towards greater transparency, Egan elaborated on the criteria used to assess whether an individual is targetable based on either direct participation in hostilities or membership in an organized armed group engaged in armed conflict with the United States.

He stated that the administration considers “all available real-time and historical information,” including “operational activities, characteristics, and identifiers.” In particular, Egan noted that the administration may examine the extent to which: 1) the individual performs functions for the benefit of the group that are analogous to those traditionally performed by members of state militaries that are liable to attack; 2) is carrying out or giving orders to others within the group to perform such functions; or 3) has undertaken certain acts that reliably indicate meaningful integration into the group.

Presumably these factors are relevant for assessing both whether the individual could be targeted and whether the person should be counted as a combatant or a civilian in post-strike casualty assessments. What is still missing, however, is clarity on what specific conduct indicates membership in an organized armed group. In the Guantanamo habeas context, courts have listed all sorts of actions that indicate membership for detention purposes, including attending terrorist training camps, staying at an al Qaeda guest house, swearing an oath of allegiance, weapons training, etc. Some fear that listing specific acts would enable members of armed groups to operate below the targeting threshold, but it’s not clear how providing a list in the targeting context would be materially different from the Guantanamo detention context or whether doing so would provide terrorist groups with information they cannot readily discern.

Egan also did not clarify the extent to which the administration distinguishes between members who serve in a continuous combat function, who may be targeted, and members who serve other functions in the group and thus may not be directly targeted. While the first two factors would tend to indicate that an individual member serves in a continuous combat function, the third factor suggests the administration’s targeting may be broader than what international law allows because mere membership in an organization is not a lawful basis for targeting.

Where the PPG Applies

Another important clarification in the speech concerns where the PPG—governing the use of lethal force in counterterrorism operations outside the United States and “areas of active hostilities”—applies.

Egan announced that the administration takes into account the “scope and intensity of the fighting,” and that it “currently considers Afghanistan, Iraq, and Syria to be ‘areas of active hostilities,’ which means that the PPG does not apply to operation in those States.” Under a non-cynical interpretation of this statement, this means that the PPG does apply to U.S. operations outside of those countries, including operations in Somalia, Yemen, and Libya.

But what about the Federally Administered Tribal Areas (FATA) of Pakistan along the Afghanistan border? Charlie Savage was quick to ask Egan to clarify whether the PPG applies to this region. Egan’s answer very clearly suggested that the answer was no, but as those in the audience Friday evening may have noticed, Egan did not actually say “no.” Rather, he explained that “when I mentioned Afghanistan I think sometimes others have referred to the Afghanistan-Pakistan border region as being part of what we talk about with respect to Afghanistan.” Egan’s answer, and the omission of the FATA region from the list of locations in the speech itself, suggests that the issue may be more complicated. One possibility is that he was avoiding direct acknowledgment of U.S. strikes in Pakistan. Another possibility is that the PPG does not apply to Pakistan, but some other set of policy restrictions does. Of course, it’s also possible that Egan meant to say no but just didn’t get the actual word out.

The PPG: Exceeding LOAC or Falling Short of Human Rights Law?

At multiple points in the speech Egan also sought to untangle some of the confusion between U.S. legal obligations and policy requirements. With respect to the PPG he explained that it “imposes certain heightened policy standards that exceed the requirements of the law of armed conflict for lethal targeting,” limiting lethal action to circumstances where capture is not feasible and there is “near certainty” of no harm to civilians.

While these policy requirements exceed the rules of LOAC, the position that LOAC targeting rules even apply outside areas of active hostilities at all, following fighters wherever they go around the world, remains highly controversial. Many U.S. allies, as well as the ICRC, contend that beyond the territory of states where the threshold test for non-international armed conflict, the stricter standards of international human rights law (IHRL) govern the use of lethal force. Under IHRL, states must not only capture an individual when feasible but may only use lethal force “when strictly unavoidable in order to protect life.” Thus, while the PPG imposes a layer of policy requirements that exceed LOAC obligations, it falls short of what IHRL requires. So, while the policy is a step in the right direction, whether it exceeds what is legally required or falls short depends on one’s view on the geography of armed conflict question.

Criteria for Jus Ad Bellum Imminence

Egan spoke at length about the international law justification for resorting to the use of force against non-state actors under the jus ad bellum. Much of what he said on that front was not new, though it provided significant clarity. But in elaborating on how the United States analyzes whether an armed attack is imminent for purposes of triggering the right of self-defense, he cited a 2012 American Journal of International Law article by Sir Daniel Bethlehem. The article was controversial at the time, sparking a series of critical responses (see for example here and here).

Egan’s reference to the article prompted a comment from Notre Dame law professor Mary Ellen O’Connell, where she noted that Bethlehem’s self-defense principles were heavily criticized and that Bethlehem himself acknowledged the principles did not reflect current law. But if one looks at/listens to the speech carefully, Egan did not actually cite—or endorse—the Bethlehem principles as a whole. Rather, he referred only to the list of factors enumerated in Principle No. 8 for assessing whether an armed attack is imminent (for analysis of this view of imminence, see Ashley Deeks here, Jack Goldsmith here, and Bethlehem here). Assuming Egan did not intend to provide a wholesale endorsement of all sixteen Bethlehem principles governing self-defense against non-state actors, the speech could have been worded more carefully. Sitting in the audience, the speech came across as a wholesale endorsement that was likely not intended.

Unwilling or Unable

In outlining the legal basis to use force against non-state actors where the territorial state has not given consent, Egan presented the U.S. version of the “unwilling or unable test” as an accepted international law standard (“In some cases, international law does not require a State to obtain the consent of the State on whose territory force will be used.”). He asserted that intervention against ISIL in Syria was lawful because a state may resort to force without consent when “there is a reasonable and objective basis for concluding that the territorial State is unwilling or unable to effectively confront the non-State actor...”

Egan provided an important qualifier that force could be used only if measures short of force had been exhausted or were inadequate and that “[t]he unable or unwilling standard is not a license to wage war globally or to disregard the borders and territorial integrity of other States.” Despite this qualifier, his formulation of the test renders it extremely difficult to see how a territorial states would be free to disagree that the non-state actor poses a threat. The test opens states up to sovereignty violations unless they agreed to arrest or target the non-state actor—and do so in a manner deemed “adequate” by the defending state. It is hard to imagine the United States being comfortable with another state asserting a right to use force in U.S. territory against an individual the U.S. does not believe poses a threat to that other state.

As Mary Ellen O’Connell observed during the Q&A, the unwilling or unable test itself (let alone the expansive U.S. reading of it) is not settled international law as Egan had suggested during the speech. Indeed, Egan responded to O’Connell’s question with an admission that “on unwilling or unable, you’re absolutely correct that this position is one that is not shared universally. It’s not been articulated by all of our partners.” Yet Egan pointed to the Article 51 Security Council letters by “a number” of U.S. partners that invoked the test to justify their interventions in Syria, “numerous” historical cases that fit its parameters, and reiterated that great care is taken to cabin the test when policymakers decide to rely on it.

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As Egan acknowledged at the outset, identifying and applying international law principles to the current armed conflicts with non-state armed groups is not easy or without controversy. His speech shed additional light on the administration’s views at a time when presenting a coherent statement of U.S. legal and policy constraints in the fight against terrorism is particularly valuable. With less than a year left of the Obama’s presidency and inflammatory rhetoric regularly arising on the campaign trail, it is time for the administration to take steps to ensure that these constraints carry over to the next administration. And that is going to require more than speeches.