Posts Tagged ‘Humanitarian Law’

International law and the use of military force against groups in Syria

Tuesday, October 7th, 2014

Preliminary draft – developing

There is considerable confusion over the legality under international law of taking military action against groups and targets in Syria.

This has led some governments participating in the coalition against the so-called Islamic State (or ISIS, ISIL, or Da’eesh) to support military action within Iraq but not within Syria.

It should be helpful to clarify the different legal authorities under international law under which military force may be used in Syria.

These break down into three broad categories:h

(1) Action againsr ISIL in Syria may be taken in exercise of the right of individual or collective self-defense recognized by Article 51 of the U.N. Charter “in the case of an armed attack”. ISIL has launched and is currently engaged in such an armed attack.

If Iraq issues a request for military assistance in repelling that attack, other states may use force that is necessary and proprtional to defending against the attack.

Collective self-defense is a valid justification for U.S. and allied air strikes and land action against ISIL in Syria.

With respect to Kobane, in particular, given the scale of the attack on Iraq and in response to a request that country for assistance in collective self-defense, Turkey would be justified under international law in sending ground forces into Syria to attack ISIL forces and to repel the attack on that border city.

(2) The second justification for using military force in Syria, whether against ISIL or the Bashar al-Assad regime itself, would be to halt he commission of war crimes and crimes against humanity on a broad scale, until such time as the U.N. Security Council can take effective action to halt the commission of these crimes.

The justification is somewhat novel under international law, but it is submitted makes eminent good sense if narrowly drafted within the framework of the Security Council’s duty to implement the “responsibility to protect” resolution adopted in 2006.

See

(1) “The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #83,” The Trenchant Observer, September 1, 2012.

(2) “Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria — Update #24,” The Trenchant Observer, April 8, 2012.

In the case of ISIL, this would be a second legal justification, in addition to that of collective self-defense.

In the case of the al-Assad government, which has not committed an “armed attack” against Iraq, this would constitute the main legal justification for taking military action against Syria.

As set forth in considerable detail in previous articles on the legality of humanitarian intervention in Syria to halt al-Assad’s atrocities, the objective of such military intervention should be to halt the commission of war crimes and crimes against humanity by the al-Assad government, under extraordinary circumstances and then only until the Security Council can take effective action.

Whatever objections Russia may have at one time been prepared to make to such an argument, resting on an overly mechanistic interpretation of Article 2 paragraph 4 of the U.N. Charter, it is hardly now in a position to make in view of its invasions of the Crimea and the eastern Ukraine.

(3) The third category of actions involve taking military action within Syria against jihadist or al-Qaeda related groups which have not been involved in an armed attack against Iraq or, arguably, even the large-scale commission of war crimes or crimes against humanity.

Here, the weakness of the international legal arguments used by the U.S. to justify drone attacks and other uses of force outside the Afghanistan-Pakistan war theater comes fully into view.

The U.S. argument turns essentially on assertions that the war against jihadists is global in nature with the result that the war theater is also global, and that certain interptetations by the U.S. of the laws of war or humanitarian law are (1) valid within the framework of humanitarian law itself; and (2) take precedence over the prohibition of the threat or use of force against the territorial integrity or political indedendence of any state contained in article 2(4) of the U.N. Charter, which is universally recognized as a kind of “super” or mandatory law (jus cogens), from which there can be no derogation.

The legal arguments used to support this third category of military actions within Syria are widely disputed outside the U.S. government, and do not appear to be supported by a wide number and variety of states.

That is why the recent U.S. air attacks on the Khorasan group, an al-Qaeda cell deemed to be particularly dangerous, at the same time the U.S. attacked ISIL targets in Syria, created much confusion, particularly in the absence of a detailed written legal justification for either kind of attack.

What was provided was a letter to the U.N. Security Council justifying the attacks both as collective self-defense and in the case of the attack on the Khorasan group as individual self-defense by the U.S.

The latter justification consisted in the mere statement of a conclusion, and failed to address the three self-defense requirements of immediacy, necessity, and proportionality.

The Trenchant Observer

Comments are invited.

Smart drones, the goal of peace, and the future of mankind

Sunday, March 17th, 2013

In an Op-Ed piece by Bill Keller published in the New York Times on March 16, 2013, Keller describes the high probability that “smart drones” will be introduced in the future, in which the aerial-borne robotic machine and its computer will decide which targets and individuals and groups to fire upon, without human intervention. Keller notes that Israel, in fact, has already introduced such an aircraft, the Harpy. Keller notes,

Israel is the first country to make and deploy (and sell, to China, India, South Korea and others) a weapon that can attack pre-emptively without a human in charge. The hovering drone called the Harpy is programmed to recognize and automatically divebomb any radar signal that is not in its database of “friendlies.” No reported misfires so far, but suppose an adversary installs its antiaircraft radar on the roof of a hospital?

–Bill Keller, Op-Ed, “Smart Drones,” New York Times, March 16, 2013.

The entire op-ed piece speaks of advances in warfare based on the underlying assumption that continued warfare is inevitable, and that the most we can aspire to is to limit some forms of warfare or weapons used, such as land-mines. While there is a great deal to be said for international treaties and institutions that limit types and the extent of warfare–international humanitarian law or “the law of war” has precisely that aim, it seems that humanity has fallen into a downward spiral in its thinking and aspirations relating to war, and into what is in fact a profound moral abyss.

In 1945, no one doubted that the goal of international society and the new United Nations Charter and Organization should be the prevention of war, and the maintenance of international peace and security. This goal was almost self-evident to generations which had suffered the ravages of World War I (1914-1918) and World War II (1939-1945).

But today our leaders no longer espouse the goal of international peace. Like President Barack Obama in his Nobel Peace Prize Acceptance Speech or Lecture in 2009, they have no vision of peace as an overriding goal to which other objectives should be subordinated. Rather, permanent war is in the minds of the leaders of today. Obama, in thinking about his pivot to Asia, is thinking about military deployments in the region to check China’s rising military power. In the stand-off with Russia and China in the United Nations Security Council over Syria, the larger question of the goals and vision of international society has been lost, primarily but not exclusively as a result of Russian and Chinese obstinacy.

At best, particularly under Obama, we have a dearth of American leadership in world affairs in general and in the maintenance of international peace and security in particular. Here, France has stepped into the vacuum, first acting as a catalyst in Libya and more recently, acting by introducing French forces into Mali to halt the fall of that country to Islamic terrorist groups and Tuareg guerrillas.

But who, and in which countries, dares today to articulate a powerful vision of peace and how to get there?

Without a powerful vision of peace, such as that originally laid out in 1945 in the Preamble and Articles 1 and 2 of the United Nations Charter, humanity will continue to stumble down the terrible path of war, now to be mechanized with smart drones, and also soon to be characterized by an imminent breakdown in the international nuclear non-proliferation regime.

In five years, or at most 10, Iran will have nuclear weapons. In five years, or at most 10, North Korea will have weapons and delivery vehicles that can land a nuclear bomb in Seattle or Los Angeles, if not Washington, New York, Moscow or London.

Is it not time that we in the United States seek to purify ourselves of the flawed thinking of the Bush and the Obama administrations about the inevitability of war, about the malleability of our most sacred moral values such as the inviolability of the human person, about the central importance of respect for fundamental human rights, of every person–even enemy combatants–and begin to concentrate with all our mental, social and political powers on the question of peace, and how to achieve it?

Is not war, and the pursuit of war, evil, and are not the pursuit of international peace and the fundamental human rights of all persons in all countries goals which embody our highest moral values?

Should we, then, not act on the basis of those values, and turn all of our efforts to developing our visions of peace and our roadmaps on how to get there?

It is perhaps no exaggeration to assert that a positive future for mankind depends on our visions of peace and our efforts to achieve them, far more than it depends on the technological “advances” we might make in developing ever-better machines of war.

Now, let’s think one step further and ask whether peace can be established without international rules that are binding in nature. Is there any realistic vision of peace that does not rest, ultimately, on the development and observance of international law and institutions? That was the vision of the founders of the League of Nations in 1919, and of the founders of the United Nations in 1945.

Is it not time for a renewal of hope, of positive goals, of our own deeply-felt visions of peace, and of our own stalwart and courageous actions to secure that peace?

The Trenchant Observer

Attorney General Eric Holder offers legal justification for targeted killings of U.S. citizens abroad

Saturday, March 24th, 2012

On March 5, 2012, U.S. Attorney General Eric Holder offered a legal justification for U.S. targeted killings directed against U.S. citizens abroad.

For the text of the speech as prepared for delivery, see “Attorney General Eric Holder Speaks at Northwestern University School of Law, Chicago ~ Monday, March 5, 2012,” Department of Justice, March 5, 2012 .

For news reports, see

Peter Finn and Sari Horwitz, “Holder: U.S. can lawfully target American citizens,” Washington Post, March 5, 2012.

Eyder Peralta, “Attorney General Holder Defends Targeted Killings Of Americans,” The Two-Way (NPRs News Blog), March 5, 2012.

Spencer Ackerman, “Here’s Why the Government Thinks It Can Kill You Overseas,” Wired, March 5, 2012.

For earlier articles by the Trenchant Observer, use the search box in the upper right-hand corner of the home page, and search for “targeted killings”, “targeted assassinations”, “extrajudicial executions”, “al-Aulaqi”, and “drones”.

Among the more astonishing assertions contained in the speech is the claim that the “due process” requirement contained in the Fifth Amendment to the U.S. Constitution does not mean “judicial process”. The implications of this statement are so far-reaching as to be almost mind-boggling, as it would presumably apply also to actions by state governments in the United States whose constitutionality is governed by the “due process” clause of the 14th Amendment.

Further critical comment and analysis will follow.

The Trenchant Observer

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***

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).

The Trenchant Observer

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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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Comments are invited, in any language. If in a language other than English, please provide an English translation if possible. A Google translation will be sufficient.

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

Wednesday, February 17th, 2010

Recently published details regarding the assassination on January 20, 2010 of Hamas leader Mahmoud al-Mabhouh, in Dubai, underline the strategic issues raised by targeted assassinations in violation of international law.

It is one thing for a country to attack an individual actively engaged in the launching of armed attacks against the territory of another state when that individual is acting in the country from which attacks are being launched, and quite another to assassinate an individual believed to have been engaged in a pattern of such attacks when that individual is on the territory of a third state.

The question of what is legally permitted under international law involves identifying the line between permitted and non-permitted uses of force separating these two hypothetical cases, under both the United Nations Charter and international human rights law. Stated differently, what are the limits on the use of force in exercise of the right of self-defense under Article 51 of the U.N. Charter, in the absence of consent by the territorial state? And what are the limits on the use of force imposed by international human rights law and the domestic legal order of the territorial state when the latter has given its consent to another state to take such military action? How might these principles be applied in these two hypothetical cases?

In general, it appears clear that a state does not have the right to violate the territorial integrity of another state to use force against an individual in the territory of that state, without the permission of the territorial state. It is also clear that the territorial state cannot legally give permission to another state to take the life of individuals on its territory in a manner that it would not itself be legally permitted to do under international human rights law and its own domestic legislation. Under international law, including human rights law, and the domestic law of nearly all countries, states are not permitted to simply identify criminals and terrorists and then go kill them.

The United Arab Emirates would not have the legal authority to conduct an extrajudicial assassination of Mahmoud al-Mabhouh when he is in Dubai, and consequently could not give its consent to a third state to do what it itself could not do under either international or domestic law.

This analysis is based on sound and universally accepted principles of international law. These principles, which are embodied in binding legal norms, help to preserve international order and avoid the slippery slope toward anarchy upon which one would enter with any policy sanctioning targeted assassinations in third countries.

It does not take much imagination to envision Russian hit squads or agents assassinating domestic critics, or political candidates from countries in Russia’s asserted sphere of influence whom it opposes, when these individuals are in a third country such the United Kingdom. Or Israel assassinating a Hamas leader in Dubai.

But if these hypothetical examples were either accepted as permissible under international law, or permissible in some moral scheme in which international law is “irrelevant” or “out of date”–which amounts to the same thing–the forces of anarchy would be unleashed upon the world.

The most essential characteristic of a democratic state is at issue here. Individuals may not be killed except in exercise of the right of self-defense, as defined in domestic and international law, or as the result of due process of law, i.e., judicial process or its equivalent under humanitarian law (also known as “the law of war”).

On the domestic level, the alternative is a regime like that of Nazi Germany, or Argentina during “the dirty war” in the 1970s in which the government killed an estimated 30,000 Argentines who it viewed as a threat to the nation.

On the international level, the alternative is an anarchic existence in which, for example, a state in Africa, Latin America, or South Asia might send hit squads into the teritory of another state to assassinate political opponents or individuals it believed had the blood of its soldiers or citizens on their hands.

States react sharply to violations of their territorial integrity, and it is not difficult to see how one or a series of such incidents might lead to armed conflict between the two states involved.

The remaining question to be addressed is what are the limits of self-defense in employing targeted assassinations against the leaders or participants of an insurgent group directing and organizing attacks from one state into the territory of another, e.g. from the territory of Pakistan into the territory of Afghanistan?

Here, at a minimum, the requirements of self-defense under international law must be applied to the specific facts of each case, absent the consent of the territorial state. In general, exercise of the right of self-defense requires that the requirements of necessity, proportionality and immediacy be met. On the other hand, when the attacking state is operating with the consent of the territorial state, it must act in accordance with the provisions of international human rights and humanitarian law, as well as the domestic law of the territorial state.

(The application of humanitarian law or “the law of war” in an expanisve manner permitting any indivdidual supporting the Taliban’s military activities to be targeted for assassination is highly controversial, inherently subject to potential abuse due to its self-judging character, and raises serious questions in terms of its longer-term strategic effects on populations where civilians are frequently killed.)

Whether an individual’s involvement in earlier decisions to launch attacks against Afghanistan from Pakistan would justify a targeted assassination of that individual when he is residing, for example, in Karachi, is a case which raises the pertinent questions.

When acting without the consent of the territorial state, the requirements of necessity, proportionality, and immediacy would, at a minimum, have to be met.

When acting with the consent of the territorial state, human rights and humanitarian law requirements must be observed by the attacking state, just as they would need to be observed by the territorial state if it were carrying out the attack itself.

Would the Pakistani government be legally entitled to conduct a targeted assassination of this individual in Karachi, or would an effort to arrest him and bring him before the courts or military tribunals be required?

It is interesting to note that the Afghanistan Taliban’s second in command, Mullah Abdul Ghani Baradar, was arrested, not assassinated, in Karachi in mid-February, 2010.

The Trenchant Observer

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