The Joint Integrated Prioritized Target List

by Rob Grace

U.S. policy on killing drug traffickers in Afghanistan raises many complex questions, all of which should be a part of the current Afghanistan debate.  At the heart of the drug trafficker killing issue is the U.S.'s "Joint Integrated Prioritized Target List," which is a list of all Afghans the U.S. believes it has the right to kill.  About 50 of the list's 367 people are Afghan drug traffickers with Taliban links.  Dapo Akande of the European Journal of International Law blog examines the legal complexities.

As Akande notes, there has been a debate within NATO about whether drug traffickers qualify for the list.  In October 2008, NATO reached an agreement allowing the International Security Assistance Force (ISAF) to kill drug traffickers funding the Taliban.  In early 2009, tensions within NATO erupted over a U.S.-led effort to expand the scope of ISAF's killing authority to include all drug traffickers regardless of their Taliban connection.  However, the U.S. Senate Foreign Relations Committee's August 2009 report on Afghanistan outlined more restrictive criteria for making it onto the list.  Drug traffickers must have "proven links to the insurgency" demonstrated by two verifiable human sources plus additional evidence.  Also, the military can only kill these people "on the battlefield" and not "away from the battlefield."

Akande notes two big legal problems with this policy.  First, drug traffickers, even ones who fund the Taliban, are considered civilians under international humanitarian law and are thus afforded protection from targeted killing.  He cites Article 13(2) of the Geneva Convention's Additional Protocol II (APII), which states that "the civilian population... shall not be the object of attack."  In terms of destroying civilian property (i.e poppy farms and drug labs), the U.S. takes the position that it has the authority to target objects that "effectively contribute to the enemy's war-fighting/war-sustaining capability."  "War-sustaining" would include property connected to war financing, but as Akande notes, this policy would mean that "all facilities/industries that generate taxes for a State would be liable to attack in time of armed conflict" constituting "a regrettable return to a policy of total war."

Second, the Senate Foreign Relations Committee doesn't define the "on the battlefield/off the battlefield" distinction.  Akande doesn't delve into this as much, for obviously if one accepts that all drug traffickers are protected from targeted killing, the "on the battlefield/off the battlefield" distinction is irrelevant since all strikes targeting drug traffickers would be illegal.  However, the distinction the Senate Foreign Relations Committee Report makes is significant because it restricts the context in which the U.S. asserts its authority to kill insurgency-financing drug traffickers.  The policy is seemingly designed to ensure accordance with APII's Article 13(3), which states that civilians forfeit protection from targeted killing only "for such time as they take a direct part in hostilities."  Since there is no battlefield in Afghanistan as there would be in a conventional war, though, the contours of this distinction are undefined.

A couple factors that Akande doesn't mention add additional complexity.  First, the U.S. hasn't ratified either Additional Protocol I or II and doesn't perceive itself to be bound by customary law to all of their provisions.  Second, Akande alludes to the ICC's preliminary investigation of war crimes in Afghanistan to highlight the potential consequences of the U.S. adopting an illegal policy.  However, there are many obstacles to ICC prosecution that will most likely shield U.S. citizens from legal trouble.  Among them is the U.S.-Afghan bilateral immunity agreement that gives Afghanistan the authority to refuse to hand over U.S. citizens to the ICC (see Article 98 of the Rome Statute).  Opinio Juris discusses this issue in a little more depth.

So is targeting drug traffickers legal? Akande concludes no, but the U.S. concludes yes, for as the Senate Foreign Relations Report states, the policy was adopted under the assumption that it accords with "the internationally recognized Law of War."  If it is illegal, should the U.S. not do it?  What will the negative consequences be?  Is the specter of ICC prosecution enough to warrant abandoning a policy that might help the U.S. achieve its operational objective?  Will this policy help the U.S. achieve its operational objective?  Or will it expose the U.S. to assaults of "lawfare" in the style described by Brigadier General Charles Dunlap?  Will it, as Akande warns, set a precedent for future wars, someday possibly exposing U.S. civilians to targeting under the notion that they as taxpayers contribute to funding their government's war effort?  These questions should all be discussed in our current national debate.

Comments

[Charlie Fowler]

The US is not a State Party to the Rome Statute, so no US citizen can be tried in the ICC. See Rome Statute Art 4(2).

[Charlie Fowler]

Additionally, APII is for non-international armed conflict. API covers international armed conflict, but has very similar designations for civilians and civilian populations.

[Rob]

Charlie,

Thank you for your comments. As for your first comment, your conclusion is most likely correct, but not for the reason you cite. You are correct that the U.S. is not a State Party to the Rome Statute. Afghanistan, however, is. So the Rome Statute, and specifically Article 4(2), applies to U.S. crimes committed within Afghan territory.

However, I still believe it unlikely that the ICC will ever try a U.S citizen. There are three ways, outlined in Rome Statute Article 13, that a case against the U.S. for a crime committed within Afghan territory could make it to the ICC. First, Afghanistan could refer the matter to the ICC. Second the Security Council could refer it to the ICC. Third, the ICC prosecutor could refer it to the Pre-Trial Chamber for approval. The first two routes are unlikely. The Afghan government is unlikely to refer an anti-U.S. case to the ICC. The U.S. would veto any Security Council effort to do the same. Thus, the most likely route is through the Pre-Trial Chamber. However, as I noted in the post, per Article 98 of the Rome Statute, the U.S.-Afghan bilateral immunity agreement could stand in the way. Even if the case did move forward, the U.S. could evoke the Hague Invasion Act to free any U.S. citizens. For these reasons, I agree with your conclusion.

As for your second comment, you are correct. I’m not sure why Akande, in his post, referred to APII rather than API, which I believe is actually the relevant legal document. But, as you note, civilian protections in both are similar. Specifically, APII Article 13(3) and API Article 51(3) are nearly identical.