By Lieutenant Colonel E. Corrie Westbrook Mack* and Lieutenant Colonel Shane R. Reeves*. Full tittle: Tethering the Law of Armed Conflict to Operational Practice: “Organized Armed Group” Membership in the Age of ISIS.
* Lieutenant Colonel E. Corrie Westbrook Mack serves in the United States Air Force Judge Advocate General Corps and is currently stationed at the Headquarters, Air Force, Administrative Law Directorate at the Pentagon, Washington, District of Columbia.
** Lieutenant Colonel Shane Reeves is an Associate Professor and Deputy Head, Department of Law at the United States Military Academy.
The article begins with a background section discussing organized armed groups (OAG), such as ISIS, and the consequences of membership in such a group. A survey of the various methods of determining OAG membership, and the practical applicability of each approach to ISIS, follows. Based upon this comparison, the article concludes that more restrictive membership criteria create an unworkable paradigm that does not match the realities of the modern battlefield. Instead, an expansive understanding of who qualifies as a member of an OAG is not only practical, but necessary for providing underlying support for the principle of distinction in non-international armed conflicts.
It is mid-June 2017 and the United States continues its long campaign in Syria and Iraq against the powerful non-State actor known as ISIS.(1) The war is going badly for ISIS as their greatest prize in Iraq, the large city of Mosul, is on the verge of being re-taken by the Iraqi military.(2) In an attempt to escape being trapped in Mosul, ISIS members are fleeing west towards Raqqah, Syria—the de facto capital of their so-called “caliphate.”(3)
The following hypothetical is illustrative of a likely scenario faced by the United States and coalition forces. As the ISIS exodus towards Raqqah is ongoing, the United States receives intelligence that a senior ISIS Military Commander, one they have been pursuing for the last two years, will be traveling the next day in a white car from Mosul to Raqqah. This ISIS Commander is known to be actively directing combat actions against the U.S. and Coalition Forces, Iraqi and Syrian government officials, and most troubling, at civilians who show resistance to ISIS. The source of the intelligence, who has proven to be extremely reliable in the past, has also shared that the ISIS Commander severely limits his travel in vehicles to minimize his risk of being targeted by U.S. aircraft. Additionally, tracking the ISIS Commander has become difficult as he has taken to giving orders to his subordinates in clandestine ways, primarily through encrypted phone messages which the U.S. has not yet unlocked. Thus, the ISIS Commander’s decision to travel presents an extraordinary opportunity for the U.S. and Coalition Forces.(4)
But there is a complication. During the planning process, the U.S. receives additional intelligence that there will be a second white car traveling with the ISIS Commander driven by his brother. While the U.S. does not have extensive information on the brother, they do know that he identifies himself on social media as an ISIS member who has pledged an oath of loyalty to the group and its leader, Abu Bakr al Baghdadi. Further, he is known as one of the “public faces” of ISIS as he regularly makes videos advertising the group’s violent efforts to establish the caliphate and highlighting their most recent military exploits. However, aside from this information, there are no indications that the brother actually carries out hostile activities in support of ISIS. With the window for a strike approaching, and with no way of knowing who is in each car, the planning cell must quickly decide whether to call off the strike or target both vehicles.
Although the above scenario is fictional,(5) the targeting dilemma presented is real. While most agree that status-based targeting of organized armed groups (OAG) in a non-international armed conflict (NIAC) is permissible,(6) what remains unsettled is when an individual is a targetable member of such a group. Thus, in the hypothetical vignette, the difficulty is not in deciding whether the U.S. can target the ISIS Commander, but rather whether the brother is also a targetable member of ISIS. Answering this question is important for ensuring State actors, engaged in hostilities with non-State armed groups during a NIAC, are capable of complying with the principle of distinction(7) as well as with their general obligation to protect civilians in the area of hostilities.(8)
There are various legally defensible views on how best to answer this question. Yet, in determining which approach is most reasonable, it is worth noting that the “challenging and complex circumstances of contemporary warfare”(9) require targeting guidance that is easily communicated to the State’s armed forces. An approach that is impractical in application will not foster compliance and will create greater risk for the civilian population in these conflicts.
Therefore, in order to strengthen “the implementation of the principle of distinction”(10) in an era of increasingly powerful non-State actors and concomitant violent NIACs,(11) this article seeks to find a targeting approach that is both legal and practical to implement.
The article begins with a background section discussing OAGs, such as ISIS, and the consequences of membership in such a group. A survey of the various methods of determining OAG membership, and the practical applicability of each approach to ISIS, follows. Based upon this comparison, the article concludes that more restrictive membership criteria create an unworkable paradigm that does not match the realities of the modern battlefield. Instead, an expansive understanding of who qualifies as a member of an OAG is not only practical, but necessary for providing underlying support for the principle of distinction in non-international armed conflicts.
Mack, Eveylon and Reeves, Shane, Tethering the Law of Armed Conflict to Operational Practice: 'Organized Armed Group' Membership in the Age of ISIS (2018). Berkeley Journal of International Law (BJIL), Vol. 36, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3315725
The views expressed here are personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government. The analysis presented stems from academic research of publicly available resources, not from protected operational information.