Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

21Oct/130

Do the New UN Reports Get it Wrong on “Associated Forces”?

On Friday, Ryan Goodman of Just Security shared an interesting critique of two United Nations interim reports released last week concerning the use of unmanned aerial vehicles (UAVs) for lethal attacks. (A summary by Sara Knuckey of Just Security is available here.) While the UN reports covered a number of areas regarding lethal use of UAVs, Goodman takes issue with the reports’ “calling into question” of the United States’ application of the international law of “associated forces” of a party to an armed conflict. Specifically, in Goodman’s words, the UN reports criticize the position that “the United States is in an armed conflict with Al Qaeda ‘and associated forces’—and that members of the latter can accordingly be detained and targeted during the course of hostilities.”

Goodman argues that the UN reports “overlook” an established legal basis for the US position and, by doing so, misrepresent the status of international law on “associated forces.” Goodman explains:

“[T]he law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention. The key question becomes: What is meant by “belonging to” a party to the conflict? The answer: Less than you might think. According to the ICRC Commentaries to the Geneva Conventions, it may involve fighting on behalf of the party which can be demonstrated by a “‘de facto’ relationship” that “may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting.” It is also clear from the wording of Article 4 of the POW Convention and the ICRC Commentaries that these groups are not military organizations “forming part of” the armed forces of a party to a conflict (Article 4(a)(1)), but are instead “independent” . . . .

Of course these rules would also have to apply by analogy, or by custom, to non-international armed conflicts. But that is not as much of a stretch as rules that were developed to deal with particular relationships between states and neutrality in international wars. Indeed, the category of “belonging to” a party is derived from relationships that include nonstate actors. And the 2009 ICRC Interpretive Guidance on Direct Participation in Hostilities (which discusses the test for “belonging to” at length) is also replete with references to the same terminology — of organized armed groups “belonging to a party” — in the context of purely noninternational conflicts (e.g., “Members of organized armed groups belonging to a non-State party to the conflict cease to be civilians for as long as they remain members….”).

Goodman goes on to describe the “unintended and perverse implications” of “[d]enying or narrowly construing the legal category of associated forces” for human rights, including loss of prisoner-of-war protections for members of associated groups and over-reliance by states on the law of self-defense in lieu of the law of armed combat due to the narrowing of the latter’s scope.

The full piece is available here.

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
United States Air Force