Constraining Targeting in Noninternational Armed Conflicts: Safe Conduct for Combatants Conducting Informal Dispute Resolution
Margulies newSome evidence suggests that informal negotiators have been either targeted or become collateral damage in U.S. drone strikes. This evidence might be unreliable. However, if it is accurate, even in part, that should be a concern even for those who support the broad outlines of the U.S. targeting strategy. Responding to this concern, this Article argues that informal negotiators from an armed non-state group should receive an “implied safe conduct,” not only shielding them from targeting but also imposing an affirmative duty on a state party to a noninternational armed conflict (NIAC) to ensure their safety. The expansion of implied safe conduct suggested here reflects what can be called a “stewardship model” for third-party states, such as the United States, that participate in NIACs in host countries, such as Afghanistan, Pakistan, Somalia, or Yemen. A stewardship model, which this author has also advanced in another recent piece dealing with the interaction of American and international law, seeks to reconcile LOAC and international human rights law in order to promote the preservation of indigenous governance and the transition to civil order in the host state.