Posts Tagged ‘general principles’

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

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UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes

Friday, August 6th, 2010

UPDATE

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit against the Treasury Department for rules that require them to obtain a license before they can challenge the inclusion of Anwar al-Aulaqi on the U.S. list of individiduals who may be targeted for extrajudicial execution.

Spencer S. Hsu, “Civil rights groups sue Treasury over targeting of terror suspects for killing, Washington Post, August 4, 2010

The targeting of Al-Aulaqi raises questions regarding the bases of the international law governing the use of force. Beyond the question of whether the U.S. is or is not violating the most basic norms of iternational law, the Al-Alauqi case raises fundamental questions relating to our international legal strategy and our vision of the future world we hope to shape. On April 7, 2010, we wrote the following:

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense. Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

(end of April 7, 2010 article)

See also the following articles by the Observer:

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Other articles by the Observer on targeted killings may be found by entering “Targeted Killings” in the Search box on the lower right side of the home page.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council

Wednesday, June 2nd, 2010
Predator Drone Firing Hellfire Missile

Predator Drone Firing Hellfire Missile

Today, Philip Alston, a highly distinguished human rights expert and U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, published a report addressing international law issues raised by the policy of “targeted killings”.

See Philip Alston, “Study on Targeted Killings,” (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum. (U.N. General Assembly Doc. A/HRC/14/24/Add.6)
May 28, 2010

See also the following:

Peter Finn, “U.N. official: U.S. should end CIA drone attacks in Pakistan,” The Washington Post, May 28,2010

Pankaj Mishra, “America’s exalted capacity for murder, “The Guardian (guardian.co.uk), May 21, 2010

Chase Madar, “How Liberal Law Professors Kill: Harold Koh Learns to Love Bomb Power,” Counterpunch, May 14-16, 2010.

For the most recent article on Targeted Killings (and links to earlier articles) by The Observer, see

“Targeted Killings by Drone Aircraft: A View From India, and Some Observations,”
May 20, 2010

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Targeted Killings by Drone Aircraft: A View From India, and Some Observations

Thursday, May 20th, 2010
Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

…..

Quotation

“La guerre, c’est une chose trop grave pour la confier à des militaires.”

“War is too serious a matter to just be handed over to some military men.”

–Georges Clemenceau.

…..

The following article from India highlights the explosive growth in the use of targeted killings in the Afghanistan and Pakistan theaters, and alludes to their use in other countries as well:

John Cherian, “Predatory strikes,” FRONTLINE: India’s National Magazine (from the publishers of THE HINDU), Vol.27, No. 11 (May 22-June 4, 2010).

Fundamental questions exist about the permissibility of such attacks in situations where they are not conducted in strict compliance with the requirements of immediacy, necessity and proportionality in exercise of the right of individual or collective self-defense, in accordance with Article 2 paragraph 4 and Article 51 of the United Nations Charter.

In particular, the legal justification based on the distinction under international humanitarian law between combatants and non-combatants, which is used to justify such attacks against anyone believed to be associated with the Taliban or other insurgent groups in Afghanistan and Pakistan, fails to take into account the fact that Article 2 (4) and Article 51 of the U.N. Charter are  norms of jus cogens, or mandatory norms from which there can be no derogation. In other words, these norms of jus cogens are superior to and limit any rights to use force that may be contained in international humanitarian law.

Consequently, targeted killings by drone aircraft are lawful only to the extent they meet the requirements for responding to an imminent or ongoing “armed attack” against “the territorial integrity or political independence” of Afghanistan or Pakistan, or if conducted with the consent of the territorial state they meet the requirements of international human rights law. International human rights law permits the use of force in self-defense or in defense of others by state authorities. It does not permit the widespread targeting and execution of criminals or terrorists without due process of law, when the requirements of self-defense are not met.

Three distinct bodies of law are relevant here: 1) the international law governing the use of force articulated in Article 2(4) and Article 51 of the U.N. Charter, which has become customary law and jus cogens; 2) international humanitarian law; and 3) international human rights law. It should be recalled that each of these bodies of law has as among its essential purposes the avoidance or reduction of the killing and injuring of individual human beings. The original purpose of the distinction between combatants and non-combatants in international humanitarian law was to limit attacks on civilians and civilian targets in traditional battlefield settings.

It is noteworthy that, according to the article from India, a very large number of innocent civilians have been killed in targeted killings by U.S. drone aircraft.

See also earlier articles by The Observer on the subject of targeted killings:

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3rd, 2010

The lawfulness of targeted killings by drone aircraft under international law should be of great concern to the United States, for perceptions of legitimacy of its actions involving the use of force are likely to have a broad impact not only on populations in the Middle East and South Asia, but also on the populations and governments of its coalition allies in Afghanistan, as well as on other nations throughout the world.

European allies in a coalition conducting such attacks may be particularly attentive to whteher or not they are conducted in accordance with international law. Article 25 of the German Basic Law (Grundgesetz) or Constitution, for example, establishes the following:

Article 25
The general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.

German participation in coalition actions involving targeted killings by drone aircraft in situations where such actions do not meet the requirements of the right of self-defense against armed attack, or self-defense in compliance with international human rights law (when the attacking state is acting with the consent of the territorial state), would appear to present serious legal issues for the German government. Article 25 of the Basic Law includes both customary international law and the special norms of customary international law which have achieved the status of jus cogens.

A further point of interest is that the United States is using non-military personnel to conduct these attacks, whether C.I.A. agents, “contractors” on the ground gathering targeting information and therefore participating in the attacks, or private “contractors” acting as “pilots” of the drones from facilities thousands of miles away.

If some of the actions in which they are participating are not legal under international law, and it is suggested above that many may not be, then these individuals could potentially face criminal liability in the future for the commission of war crimes. While the U.S. has taken vigorous action to prevent its citizens from from being tried either under the jurisdiction of the International Criminal Court or the universal jurisdiction that may be exercised by national courts of any country when their domestic law authorizes them to do so, the historical trend is in the other direction. It is quite conceivable, if not likely, that within 10 or 20 years these individuals could become subject to arrest and trial when traveling abroad.

In any event, these targeted killings do not seem to be stopping the Taliban, which in Afghanistan still appear to be very present in Marja, the location of a much-touted recent American offensive, as well as in Kandahar province where a huge offensive by the United States and its allies is imminent or perhaps already underway.

The Trenchant Observer

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E-mail: observer@trenchantobserver.com
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