This article by Patrick Gallahue in the Guardian's Comment is Free is based on his article published last month in the International Yearbook on Human Rights and Drug Policy.
Last year, the US embarked on a controversial and ill-advised strategy for dealing with the Afghan drug trade. It placed 50 traffickers with links to the Taliban on a hit list of people who can "be killed or captured" at any time.
In effect, this gave drug traffickers the same legal status as insurgents and blurred the all-important distinction between those who can be legally targeted in an armed conflict and those who cannot. (PDF, 118 KB) Open in new tab
The American strategy has now come under fire from Professor Philip Alston, the UN's special rapporteur on extrajudicial, summary or arbitrary executions. In a report issued at the end of last month, he wrote that the strategy "is not consistent with the traditionally understood concepts" of international humanitarian law: "Drug trafficking is understood as criminal conduct, not an activity that would subject someone to a targeted killing."
As the Guardian noted at the time, the American decision was "certain to provoke controversy". For the better part of the last 40 years, the "war on drugs" has largely been considered as a rhetorical fight against narcotics, not as an actual war. While militaries have been engaged to combat the drug trade, people involved in narcotics trafficking have generally been seen as common criminals (ie civilians) rather than "combatants" or "fighters".
And when it comes to war, the difference between civilians and combatants is a very big deal. In fact, it can be a matter of life and death.
Naturally, these distinctions are difficult in civil wars like that in Afghanistan where insurgents rarely distinguish themselves from the civilian population. However, that hardly means militaries can declare everyone a target. In fact, while still notoriously vague, understanding of the rules on who can and cannot be targeted in conflicts like Afghanistan has developed substantially. (PDF, 118 KB) Open in new tab (PDF, 118 KB) Open in new tab
While the regulations remain tricky, pretty much every respected analysis on the issue discounts financiers of an insurgency as a legitimate target – as long as they do not have some additional combat function or are not participating in hostilities in some other way.
The International Committee of the Red Cross, the most venerable humanitarian organisation on earth, wrote that recruiters, trainers, financiers and propagandists cannot be said to have combat roles.
Similarly, when the Israeli supreme court tackled the issue of targeted killing in 2005, it ruled that certain members of terrorist organisations could be targeted but it explicitly excluded those who provide "logistical, general support, including monetary aid".
However, in announcing the new US strategy, a Senate foreign relations committee report stated in 2009: "No longer are US commanders arguing that going after the drug lords is not part of their mandate. In a dramatic illustration of the new policy, major drug traffickers who help finance the insurgency are likely to find themselves in the crosshairs of the military."
The purpose of the principle of distinction is to protect "civilians" as long as they are not participating in hostilities and, as Professor Alston wrote, "generating profits that might be used to fund hostile actions does not constitute [direct participation in hostilities]".
This logic of protecting those not "participating in hostilities" is intended to spare civilians on all sides from unlawful military action – be they drug traffickers supporting the Taliban or the New York Stock Exchange on the American side.
There is no dispute that trafficking in drugs is illegal, but those involved in the drug trade are subject to arrest, trial and imprisonment – not to be targeted for death – regardless of what they intend to do with the profits. Professor Alston has essentially reminded the US that targeting people for illegal acts, even in war, is not a desirable means of holding them accountable.
"To expand the notion of non-international armed conflict to groups that are essentially drug cartels, criminal gangs or other groups that should be dealt with under the law enforcement framework would be to do deep damage to the [international humanitarian law] and human rights frameworks," Professor Alston wrote.
For the sake of a principle intended to protect all civilians in armed conflict – both law-abiding and otherwise – let's hope they the US is listening.
(c) Guardian 2010