Henry H. Perritt, Jr., Professor of Law and former Dean at Chicago-Kent College of Law will have an article, Making International Criminal Law Realistic, in a forthcoming 2007 issue of the London Law Review. In this article, Professor Perritt argues that unthinking application of traditional precepts of International Criminal Law (ICL) risks making guerrilla insurgencies illegal, and he suggests a number of ways to make ICL fit the realities of insurgent group practices. Possibly his most controversial proposal is, “Insurgents should be privileged to assassinate police, intelligence agents, spies, and informers as participants in the armed conflict.”
This proposal was discussed by email between Professor Perritt and Hunter Hogan, the editor of this blog.
Hunter Hogan:
Dear Professor Perritt,
Thanks for agreeing to experiment with this format–I think it will be fun, and I think our one reader will like it, too!
I have to admit that your proposal is a bit shocking. At first glance, it seems like a bit of a stretch that insurgents should be allowed to kill regime collaborators like police, politicians, and civilians. After reading your article, however, I agree with you–on most points. I was convinced by your arguments that insurgents should be able to assassinate 1) police, 2) “A civilian directly participating in the hostilities”, 3) regime political representatives, 4) spies, and 5) intelligence agents that are employees of the regime. During an insurgency, police, intelligence agents, spies, and politicians each directly or indirectly support the regime, and it seems to me that ICL should recognize that they are valuable, and valid, targets for insurgents. Civilians that participate in the fighting should also be valid targets.
I think we only disagree about one category–“informers.” To show why I disagree, I will define “informer” as a citizen who provides information to the regime, but is not employed by the regime to collect information. Therefore, an informer is also not a spy or an intelligence agent. Under the Hague Convention IV definition, a spy uses false pretences to collect information. As long as the informer does not collect information through false pretences, then she is not a spy. My stereotypically informer is a private citizen that accidentally discovers information about the insurgency and then reports the information to the regime.
I believe that insurgents cannot “assassinate” informers under any circumstances. I think that the insurgents, however, can arrest informers that operate in territory controlled by the insurgency, but I do not think that insurgents can target or arrest informers operating in territory controlled by the regime. “Control” in this case is de facto administrative control of the territory. If one side can arrest with impunity, then that side is in control. It is possible that some areas are not under anyone’s control.
Ultimately, I don’t think that informers are participants in the hostilities, so I don’t think insurgents should be able to assassinate them.
Professor Perritt:
Hunter:
I agree that this will be fun.
“Participant” is a conclusion. In my framework, Common Article 3 privileges targeting participants.
So the question is, “who is a participant?”
My argument is that at least some collaborators are participants, depending on the nature of the threat they pose to the insurgents. How much force can be used against them depends on (a) the magnitude of the threat, (b) the imminence of the threat, and (c) the availability of other means of removing the threat. Sometimes, the combination of these factors permits killing them summarily.
Collaborator, in my framework, is a broad category. It can include spies or informants (I don’t know the difference), postmen, mayors, party leaders and the like. What matters is not the job title, but conduct posing a threat.
Hunter Hogan:
Let’s start with spies vs. informants. Spies are a special category, and any spy can be shot. (After some sort of trial to make sure they are a spy. In your article, you convincingly argue that “due process” is partially dependent on what the insurgency can provide.)
Looking to Hague IV art. 29, spies act clandestinely or on false pretences. By this definition, civilians that carry out their mission openly are expressly not spies. I call these people informants. Imagine that there is an insurgency in Chicago. I live on the 28th floor downtown and I have a clear view of some important areas of the city. I can see two major train stations, parts of two highways, and the edge of a large university campus. If I see insurgents advancing on Union Station, I am not a spy. I didn’t gain that information clandestinely. If I report the information to the regime, then I am not a spy, I am merely an informant. So, the insurgency cannot kill me using their right to kill spies. You argue that the insurgency can detain or kill me (based on the three factors) because I informed the regime about the insurgency. If you are right, then I do not think the legal support for killing the informer comes from Hague IV art. 29 or ICL dealing with spies. If the insurgency can kill informants, it is because the informant is a participant.
I don’t think informants can be assassinated, and I think only some informants can be detained (arrested). Hague IV art. 44: “A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense.” This is not perfectly on point, but it provides analytical support. Insurgents cannot force people to inform on the regime. And I think this is because of Hague IV art. 45: “It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.” The insurgents cannot force civilians to switch their allegiance. Forcing them to inform on the regime that they swear their allegiance to would force them to renounce their allegiance. I think informing about enemy troop movements to one’s allegiances is merely an act of allegiance. I do not think it rises to the level of participant. Is a witness to a crime a participant in a crime? Is the person that calls the police a participant in the arrest of the suspect? I don’t think so. So, I don’t think any informant is ever a participant, and I don’t think any informant can be assassinated as a participant.
I do think, however, that some informants may be detained. To show why, I need to bifurcate the category of informants. Informants operating in enemy territory vs. informants operating in friendly territory. Back to my Chicago insurgency example. If the regime is in control of Chicago, and I swear my allegiance to the regime, then when I report insurgent activity, I am operating in friendly territory. If I report insurgent activity in insurgent controlled territory, then I am operating in enemy territory. Back to my crime example in the last paragraph. If I see a crime happening and I call the police, then the criminals cannot legally take action against me.
If I see a crime, however, and I warn the criminals that the police are coming and I help the criminals evade the police, then I have violated a municipal law and I can be arrested. Let’s say I am allied with the regime, and Chicago is now controlled by the insurgency. (We are also assuming there is an armed conflict.) If I help regime forces to evade or attack insurgent forces, then the insurgency should be able to arrest me. There is a very fine line between “informing” and “participating.” If I stand on the street corner and point out snipers on roof tops, then I think I am a participant. Participants can be shot. In your article, you call this “tactical support.” If I merely provide “strategic support” by telling the regime that the insurgents normally place snipers on rooftops, then I am not a participant. The insurgency can arrest me for aiding the enemy, but they cannot shoot me. By aiding the enemy, I violated municipal law, not ICL.
I think it is important that ICL is designed to minimize harm to civilians. If we expand the definition of participant too far, then all civilians are valid targets. Therefore, I think it should be ok for civilians to report crimes to the de fact government, and I do not think it is ok for civilians to report crimes to the government of the enemy.
Professor Perritt:
I agree that “If the insurgency can kill informants, it is because the informant is a participant.” I argue with your factual premise, at least somewhat. It’s not for nothing that the FBI calls them “Confidential Informants–CIs” Most informants hide that they are ratting to the authorities. How is your spying from your apartment “open”? Do you drape a banner saying, “I am looking at you.”?
If you “don’t think any informant is ever a participant,” do you think a volunteer artillery spotter is not a “participant”?
Your analysis of tactical support and strategic support is good. Are there no circumstances in which the insurgents can shoot you? Even if that is the only way to remove the threat you pose?
What is your view on targeted assassinations, such as what Israel regularly does in Gaza and the West Bank, and the US did on the first day of the Iraq debacle, starting the war a day early to aim cruise missiles at a place where Saddam was thought to be, or several times in Afghanistan, when we aimed cruise missiles at places where Osama was thought to be?
I agree with the slippery slope problem. But I am trying to sketch a way that ICL can privilege what all mainstream guerrilla insurgencies do, while also setting some limits. Unless ICL privileges what Michael Collins organized in Ireland, and what the KLA did during its “intelligence war,” ICL is futilely making guerrilla insurgency illegal. And then The Law is an Ass.
Hunter Hogan:
Confidential informants and “open” spying: I don’t think I have to hang a sign from my window telling the insurgents that I am collecting information about them because I am not doing anything clandestine just by standing in my living room. Spies can be executed because they collect information clandestinely–or covertly. I don’t think a civilian has to be overt just to avoid being covert. I think confidential informants are confidential because criminals would like to kill them. Obviously, insurgents would like to kill regime informants. Insurgents’s desire to kill informants, however, doesn’t indicate whether ICL should privilege that killing. As you point out in your article, insurgents (and regimes) may want to kill all civilians of a specific ethnicity or religion, but ICL should never privilege such atrocities.
I probably went too far when I said that no informant is ever a participant. It is probably more accurate to say that the mere act of informing does not make one a participant. The civilian has to do something more, like collect the information using false pretenses (à la a spy) or provide tactical support. Since an artillery spotter is providing tactical support, then I think their actions are more than mere informing. Yes, I do think that insurgents can shoot civilians that are proving tactical support, but I don’t think it is because it might be the “only way to remove the threat I pose.” As you point out in your article, ICL only allows use of deadly force that is proportional to a legitimate military objective. If the only way to kill Osama bin Laden were to drop 20 nuclear bombs on Pakistan, then ICL would not privilege the action because it is not proportional to the threat. I mention this because I don’t know of any provision in ICL that privileges killing as a “last resort.” Privileged killing is always bounded by factors such as proportionality, necessity, and the three factors you mentioned earlier. Said differently, I think that an insurgent’s privilege to kill an informant is independent of the feasibility of preventing the informant from informing the regime. (I feel compelled to reiterate that I think an informant can inform only in territory controlled by the regime.)
Before I read your article, I was ambivalent about target assassinations. I didn’t have a framework to evaluate the issue in and I couldn’t decide if the law should prevent or privilege such killings. Your framework, however, makes clear that target assassinations are often privileged. Trying to kill enemy political leaders (Saddam) or the head of the insurgence (bin Laden) are clearly privileged within your framework. And when Israel targets belligerents or other participants, then I think it is privileged under ICL.
Did the KLA kill informers or did they arrest them? If the KLA had the ability to arrest informers, but instead killed them, do you think the killings should be privileged? Alternatively, if the KLA arrested an informer in territory that the KLA controlled, charged her with aiding the enemy, gave her a trial with adequate due process, then executed her, then I think this is acceptable use of the state’s police power. ICL would have nothing to say about that type of killing.
Professor, thank you for discussing your article with me and contributing to the blog. I also appreciate your considerable getting this blog started; I hope our efforts pay off!
Professor Perritt:
