Has Human Rights Watch Changed Its Position on Targeted Killing and the Scope of Application of IHL?

Reacting to the decision yesterday in al-Aulaqi, Human Rights Watch has sent a letter to President Obama, in the name of HRW’s President Kenneth Roth, setting forth HRW’s views on the legal issues associated with targeted killing.   A key passage:

We recognize that the deliberate use of lethal force can be legal in operations involving a combatant on a genuine battlefield, or in a law enforcement action in which the threat to life is imminent and there is no reasonable alternative.

Now compare that to the statement of HRW’s position provided by Tom Malinowski in October, in the course of an exchange with Ben posted on this blog (the extended--and highly insightful—exchange, which begins with a discussion of HRW’s position on humanitarian intervention against the Lord’s Resistance Army, is here and here and here and here and here and here).  Tom wrote:

Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative.

(emphasis added).  The difference, of course, is the removal of the key phrase “or its equivalent beyond the reach of law enforcement.”   Does this signify a shift in HRW’s position?  That is, does it indicate that HRW previously accepted the applicability of IHL to at least some non-battlefield contexts, but no longer does so?  So it seems.  The original HRW standard entailed an important degree of flexibility, recognizing that combatants are not always located on conventional battlefields and that targeting them in unconventional settings may yet be appropriate in some settings beyond the reach of law enforcement.  The revised language contains no such qualification; IHL governs on the traditional battlefield, but otherwise a law enforcement model entailing an imminence test applies. But what actually turns on this shift?  The change may matter less than one would expect, at least for targeting purposes (detention is a different story, as I’ll note below).  It all depends on what HRW has in mind by “imminence” as a necessary condition for the use of force in the law enforcement model. Imminence could be calibrated strictly, encompassing no more than the situation in which a specific person is on the very verge of using lethal (or potentially lethal) force on another person.  On that view, the difference in the IHL and law enforcement models differs dramatically.  But imminence could be calibrated more flexibly.  One could, for example, define imminence to include a situation in which a person in the past has used, attempted to use, or was directly involved in the use of lethal force, and by some measure of proof appears likely to do so again going forward.  Or one could treat past involvement as relevant but not necessary, and focus solely on the prospect that a person is now part of a chain of activity the ineluctable result of which will be an attempt to kill someone.   Imminence, in short, could be calibrated with reference to a spectrum running from the strict to the flexible. If HRW has in mind a relatively flexible understanding of imminence, then combined with a showing that a particular person is in an ungoverned/denied area beyond the realistic reach of law enforcement, one arguably ends up with permissible targeting options that may not be all that different from what might follow under an IHL model (note, though, that it would not follow that such a person could also be subject to military detention; there is no parallel argument regarding the availability of detention under both models). Which understanding of imminence does HRW have in mind?  We can’t say for sure.  Tom’s original statement went on immediately to offer the following observation:

A case could be made that these conditions have at times been met in Yemen — for example, if there is credible evidence that a targeted individual is planning attacks on the US, the threat is imminent, and he or she is in a place where an arrest operation would be impossible. And if such conditions have been met, a case could also be made that drones are one of the best weapons from the point of view of reducing the likelihood of harm to civilians, since they deliver small warheads with precision, and can hover over their targets to observe if civilians are present. (We are concerned about the overzealous use of drones, particularly in the absence of on-the-ground intelligence to guide them, but they are better than most alternatives).

That hypo could be read consistent with a strict calibration of imminence, certainly, but it does seem more natural to read this passage as contemplating something closer to the flexible end of the spectrum.  As for the Roth letter, it went on immediately to offer a different, but arguably consistent, qualification:

We also recognize the challenge that your government faces in trying to address potential threats that are not in a traditional conflict zone yet are also beyond the reach of any law enforcement. The notion, however, that the entire world is a battleground in which the laws of war are applicable undermines the protections of international law. Such a concept invites the application of lethal force by other countries in situations where the US would strongly object to its use.

The most we can say, I think, is that the main thrust of the change in HRW’s formulation is to shift its position closer to a strict geographic model of IHL’s scope of application, while maintaining strategic ambiguity regarding the extent to which its understanding of imminence permits the use of targeted killing in ungoverned/denied areas that do not involved armed conflict in a conventional sense.  Thus we do have an apparent shift, but we do not know how much it really matters for purposes of the targeting issue (it would seem to clearly matter, in contrast, for purposes of detention authority).  Of course, I’d be very happy to post any further thoughts HRW might want to share on this point.