Guest Post by Aurel Sari and Michael Schmitt: Is it lawful to destroy the enemy? Some thoughts on the current British debate
Dr. Aurel Sari and Professor Michael Schmitt, two of the world’s most prominent law of armed conflict (LOAC) scholars, have penned an important essay that Lawfire is pleased to host. It addresses a fundamental LOAC tenet that has somehow become controversial in the U.K., but whose preservation is essential the ability of rule-of-law nations to use force to defend themselves.
“A dead terrorist can’t cause any harm to Britain,” said the Secretary of State for Defence Gavin Williamson in a Daily Mail interview earlier this month. “I do not believe that any terrorist, whether they come from this country or any other, should ever be allowed back into this country,” he continued. “We should do everything we can do to destroy and eliminate that threat.” Mr Williamson’s comments sparked widespread consternation in the UK press, prompting Prime Minister Theresa May to affirm that she is prepared to take all necessary action to defend British citizens. Mr Williamson’s comments have also been condemned as contrary to international law. Are they?
It is unquestionable that it would be unlawful for British forces to intentionally kill members of ISIS who are in their custody, have clearly expressed an intention to surrender, or are wounded and no longer fighting. Indeed, deliberately killing those who are hors de combat would be a war crime.
While Mr Williamson surely did not mean to suggest that British forces should disregard these time-honoured rules of the law of armed conflict (LOAC), the fact that his comments left room for such an interpretation is unfortunate. It is imperative not only that British forces conduct themselves lawfully, but also that senior politicians assiduously avoid casting doubt, whether deliberately or offhandedly, on Britain’s commitment to international law.
However, some commentators have gone further, suggesting that it would be contrary to international law to kill ISIS fighters, including by adopting a “shoot-to-kill” policy. These criticisms betray certain fundamental misunderstandings of LOAC that are detrimental to the rule of law itself.
In times of armed conflict, there is little doubt that the armed forces of one belligerent may lawfully use lethal force against the armed forces of another. After all, as the famous St Petersburg Declaration of 1868 reminds us, the sole legitimate aim of war is to weaken the military forces of the enemy. One way of doing so is to kill enemy soldiers.
Matters are complicated by the fact that, with respect to ISIS, the UK is involved in an armed conflict with an “organized armed group” instead of another country. The law applicable to these “non-international” armed conflicts is less developed than that applying in hostilities between nations. In fact, there are long-running and fervent debates over such issues as the where and when members of a group may be targeted outside the immediate zone of battle.
But these matters are not implicated by Mr. Williamson’s comments. On the contrary, certain issues they raise are beyond doubt.
First, the UK has been engaged in an armed conflict against ISIS since its launch of Operation Shader in September 2014. Those who argue that the country is not “at war” fail to understand that the applicability of LOAC to conflicts with non-state groups depends not on any formal declaration of war, but rather on the existence of sufficiently intense hostilities with an organized group, a threshold the on-going hostilities with ISIS have incontrovertibly crossed.
Second, the present armed conflict pitches the British armed forces against the military forces of ISIS. As recognised by, amongst others, the International Committee of the Red Cross (Interpretive Guidance) and the International Criminal Tribunal for the Former Yugoslavia (Galic, para. 47), members of organised armed groups forfeit the protection from attack they would otherwise enjoy as civilians. This is so irrespective of whether they are engaged in combat when the attack occurs or whether they pose an imminent threat to British or coalition forces at the time.
Third, the fact that ISIS and its members engage in terrorist tactics on and off the battlefield does not render LOAC inapplicable. A particular tactic may be both a criminal act of terrorism and act of warfare. The fact that ISIS fighters may be subject to prosecution for ordinary crimes under criminal law does not render them any less liable to attack in conformity with LOAC. Fourth, while enemy fighters who express an intention to surrender may no longer be targeted, belligerents are not required to offer them an opportunity to surrender. The burden of expressing any desire to surrender lies upon the ISIS fighters; British forces need not spare the fighters until they do so.
The bottom line, therefore, is that LOAC permits British forces to employ lethal force against members of the military forces of ISIS in order to degrade ISIS’ military capability. This is exactly what they have been doing for the past three years. In fact, according to the Ministry of Defence, in the past month RAF Tornados destroyed an ISIS truck loaded with equipment, an RAF Reaper drone killed a number of fighters occupying defensive positions, and two Tornados destroyed a group of fighters and their vehicle.
Against this background, it is bewildering to find some commentators proclaiming that targeting British ISIS fighters would amount to “extrajudicial killing” or to a “shoot-to-kill” policy in contravention of international law. Not only do such assertions fail to take account of LOAC, but they also fly in the face of the reality that warfare necessarily entails the use of force against the adversary. Under LOAC, it is perfectly lawful to attack enemy forces, whether those forces include British nationals or not. In fact, in situations of non-international armed conflict, the majority of fighters are usually of the state’s nationality since, after all, the conflict is “internal”. That the fighters abroad cannot return home if killed in a lawful attack is simply the by-product of that attack.
None of this is meant to claim that every attack on enemy forces, including ISIS, is lawful. There are important restrictions on attacks, most notably the condition that any expected collateral damage not be excessive relative to the anticipated military value of the operation, and the broader requirement that British forces take all feasible precautions to try and limit harm to civilians. Nor should it be understood as implying that what is lawful is always prudent.
There may well be sound policy reasons why systematically eliminating British ISIS fighters should be eschewed in favour of non-lethal alternatives. However, to suggest that such killings are necessarily contrary to international law misconstrues that body of law and unfairly creates the impression that the United Kingdom has adopted a strategy of engaging in unlawful attacks. Left uncorrected, this impression will undermine public trust in the law and the commitment of the British armed forces to upholding it.