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Over the years I have heard knowledgeable people comment (sometimes with admiration, sometimes otherwise) that the French approach to counterterrorism outside of France is not so different from the American approach, but that the French manage to avoid anything resembling the scrutiny and criticism that the United States receives.
I’m in no position to judge that. But let’s assume for a moment the comparison is true. Why relatively little scrutiny for the French if so?
One can think of many reasons. As an initial matter, it seems the French are more disciplined than we are when it comes to keeping secrets in the first place (both in terms of not leaking, and in terms of having fewer formal transparency mechanisms). It also strikes me as likely that with finite NGO and media resources concentrated on U.S. actions (and let’s not forget Israel here), there is less bandwidth to spare for examining French counterterrorism (not to mention less of an audience for what might be discovered through such efforts, and perhaps slimmer prospects for gaining policy or legal traction as a result of some juicy disclosure). But might it also reflect an intentional French policy of minimizing such friction by acting when possible through proxy forces (in much the same spirit as the friction-minimizing strategy of the Obama administration memorialized in books like David Sanger’s Confront and Conceal)?
That’s the question I pondered when reading this fascinating article in yesterday’s Wall Street Journal. Citing Iraqi sources, it alleges that the French have given Iraqi forces a list of some thirty French nationals who have risen to prominence in the ranks of the Islamic States, and have asked the Iraqis to locate and kill those men (at times giving the Iraqis precise intelligence on their location in order to make this possible).
As the article notes, France has around 1200 soldiers in Iraq, at least some of whom are special operators functioning in close advise-and-assist role supporting special Iraqi units much as occurs with U.S. special operators. But whereas U.S. special operations forces also have a much-publicized mandate to conduct their own operations with respect to hunting high-value Islamic State targets (well, it was much-publicized when it first came out, but the news has been very sparse since then), it appears the French may pursue similar ends but only through indirect means. Which is not to say there is anything wrong with that approach as a legal or policy matter (at least not on the limited facts we’ve been given in the article). But it certainly is interesting as a window into the French strategy in such circumstances—and it is not hard at all to imagine that something similar takes place, or has taken place, in situations such as the earlier French intervention in Mali.
Two other elements in the article are worth noting, moreover.
First, the article provides a reminder that the controversies of the past sixteen years regarding the legal boundaries for the use of lethal force on a targeted basis have by no means been settled. I don’t say that just because the topic is generally implicated by the story mentioned above. Rather, I say it because the article includes a statement from Iraqi government officials who seem to feel obliged, in light of the story about the French providing targeting information for specific individuals, to deny that the Iraqi military engages in
in systematic extrajudicial killing of Islamic State fighters, [and that] any such cases would be investigated for possible prosecution.
Given that the situation with the Islamic States is a circumstance that indisputably counts as an armed conflict—one in which the Iraqi military every day uses lethal force against Islamic State personnel—it is hard to know what to make of this statement. Was there something about the reporter framed the question (note that we do not get to see how the question was framed, if there even was a precipitating question) that might have prompted this particular answer, without the source meaning to suggest that it is illegal to kill specifically-identified Islamic State fighters? Was it instead simply a desire to distance themselves from an embarrassing story that some might feel depicts them (unfairly) as French pawns? Or might it actually reflect a belief that, while lethal force against unknown Islamic State fighters in a combat setting may be lawful (perhaps on a DPH theory), killing becomes unlawful if you actually know in advance who the fighter is and seek out that person? That last possibility—or others like it—reminds us that hotly-contested legal questions regarding the principle of distinction in a NIAC setting are still out there, as are questions about the interplay of human rights law concepts with the law of armed conflict/IHL.
Second, and just for good measure, the article also throws in this kicker:
A spokesman for Iraq’s Justice Ministry declined to say whether the government has any foreign Islamic State fighters in custody. Iraqi commanders have said most militants fight to the death.
Considering the scale of this conflict, that’s a remarkable statement. And it reminds me of the similar dearth of information—or perhaps the better description is dearth of prisoners?—as to those who fell into the hands of government forces in Mali.