Folk International Law and the Application of LOAC in Counterterrorism Operations

Naz Modirzadeh’s fascinating series of Lawfare posts (here, here, and here) discussing her article, Folk International Law, provides an excellent primer on the potential consequences and confusion that result from amalgamating distinct legal doctrines, regardless of whether such creative tinkering is couched under the rubric of “policy.” In particular, I think the debate between Modirzadeh and Professor Marty Lederman actually underscores one of her central insights, which is that those who constantly and fervently profess their fealty to international law can actually pose the greatest challenge to the international legal system. It is one thing to criticize leaders (and their lawyers) who appear dismissive of international treaty obligations, quite another to take on a cadre of international lawyers whose intellectual heft and insistence that they are doing more than LOAC requires add an imposing veneer of gravitas to their every pronouncement. However, I wanted to focus briefly on one aspect of the debate that I think neither side gets exactly right: namely, the principle that the U.S. armed forces comply with LOAC in counterterrorism operations (and for that matter, in all operations). From the perspective of administration lawyers, the Presidential Policy Guidance (PPG) is better than LOAC because it goes “above and beyond” the law’s mandates. According to administration critics, the discussion is rigged from the outset, because the entire notion of a “global NIAC” is a legal fiction and LOAC is not even triggered outside “areas of active hostilities.” While the PPG may indeed exceed LOAC in certain respects, it no doubt falls short of IHRL in others. In the critics’ view, IHRL non-compliance is being made to masquerade as LOAC uber-compliance. In my opinion, DoD’s adherence to LOAC stands separate and apart from this debate, and should be allowed to remain so. Indeed, DoD’s position that it complies with LOAC principles across the conflict spectrum has been remarkably consistent and predates by decades the post-9/11 geopolitical debates over whether the U.S. is engaged in a GWOT, a transnational NIAC, or something else. Long before these acronyms became part of the political vernacular, the U.S. armed forces were using another term (since discontinued) that nicely encapsulated the emerging trend---“military operations other than war” (MOOTW)---and training to conduct such operations in accordance with LOAC. At the operational level, I think there are three aspects of LOAC that the current debate overlooks. First, in my experience JAGs and the commanders they advise tend to view LOAC holistically, as a set of guiding principles that define what it means to fight honorably and belong to the profession of arms. Regardless of which particular treaty provisions apply in which particular scenarios, LOAC’s time-tested rules provide clarity and legitimacy that enable soldiers to do difficult jobs under difficult circumstances. From this vantage point, LOAC can no more be improved upon by enterprising attorneys on the National Security Council or in the Office of Legal Counsel than it can be rendered completely irrelevant by a determination that the NIAC threshold has not been met. This is not an argument to turn the world into a war zone, but simply a recognition of the way that U.S. forces are trained to internalize and comply with LOAC. It is instructive in this regard that until the recent advent of the world’s lone superpower claiming to be engaged in an extraterritorial NIAC, the main problem faced by humanitarians concerned with the calamities of war was nations denying, rather than embracing, the label and attendant obligations of armed conflict. Second, while political leaders are understandably enamored with LOAC’s “at-will targeting” standards—vice the substantially (in most cases) more restrictive law enforcement “force continuum”— Modirzadeh is correct to point out that targeting rules are just one part of the equation. LOAC is a fully-fledged system of both licenses and limitations, and the U.S. military takes both aspects seriously. Charles Garraway has aptly described the tension between “Geneva” law, that part of LOAC most attractive to IHRL lawyers because of its protective focus, and “Hague” law, which is favored by policymakers because of its emphasis on the projection of force. However, a pick-and-choose strategy risks undermining LOAC even as it pledges fidelity to it; hence the danger of the PPG’s “toolkit” approach. Finally, while it is true that some militaries---notably those of our European allies---have experience toggling back and forth between armed conflict and law enforcement frameworks, I think it is important for all sides of the debate to understand the extent to which military policing is anathema to the U.S. armed forces and would require a major cultural shift. American ambivalence about military law enforcement dates back at least to Reconstruction, and arguably to the colonial experience. It is enshrined in the Title 10/Title 32 divide and in the Coast Guard residing primarily in DHS (and formerly in DOT). Thus, mixing LOAC and IHRL norms as in the PPG---not to mention denying the applicability of LOAC altogether as some critics would have it---raises the real specter of incoherence and operational costs given how the U.S. armed forces are trained and organized. This risk to LOAC’s clarity is ultimately the biggest concern with the promulgation of “folk international law,” because LOAC’s “bright line rules” are precisely what imbue it with both practical utility and normative force. In the final analysis, the PPG and related policy canon may merely be a legalistic way of framing what experienced counterterrorism policymakers like Benjamin Netanyahu recognized many years ago, at least in principle (p. 145): “Counter-terrorist operations usually require the barest minimum application of force necessary to overcome the terrorists.” If that is the case, then such a strategy need only have been incorporated into the rules of engagement, not made part of a larger effort to situate U.S. counterterrorism operations within international legal norms. Alas, the resulting hodgepodge of LOAC, IHRL, and jus ad bellum may have been too clever by half. Major Charles Kels is a judge advocate in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. His views do not reflect those of the Department of Homeland Security, Air Force or Defense