On September 19, 2011, Charlie Savage reported in the New York Times that,
The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.
While late to take a firm possition, State Department lawyers are now “trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense,” according to an unnamed high official.
The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.
–Charlie Savage, “At White House, Weighing Limits of Terror Fight,” New York Times, September 15, 2011
This debate involves much more than a division between the President’s lawyers. For the government’s principal experts on international law are in the State Department, not in the Pentagon. Moreover, it is far from clear that the Judge Advocates General of the Army, Navy and Air Force share the views expressed by the General Counsel of the Pentagon, a civilian appointee whose duties extend far beyond questions of international law. While Koh is also a political appointee, his office is made up of career experts in international law, and he himself is an international lawyer of distinction.
For further details on the debate and the implications of the Pentagon’s position, see
David Cole, “A Secret License to Kill”, NYR Blog, September 19, 2011; and
The Trenchant Observer, “International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World,” July 17, 2011
Roland Paris, “Lethal drones strike at our very heart,” The Globe and Mail, September 14, 2011.
In his article, Savage reports that,
The dispute over limits on the use of lethal force in the region — whether from drone strikes, cruise missiles or commando raids — has divided the State Department and the Pentagon for months, although to date it remains a merely theoretical disagreement.
These differing views on the legality of targeted killings are far from theoretical, however, as the United States has reportedly been engaged in a broad pattern of conducting such targeted killings outside the Afghanistan war theater. Moreover, the fact that targets may be high-level or high-value targets does not dispense with the requirement under international law that such attacks be conducted only in self-defense, and in accordance with the specific requirements of necessity, immediacy and proprtionality that are conditions for the exercise of the right of self-defense.
“Signature Stikes” — War Crimes?
Savage also reports that,
In Pakistan, the United States has struck at Al Qaeda in part through “signature” strikes — those that are aimed at killing clusters of people whose identities are not known, but who are deemed likely members of a militant group based on patterns like training in terrorist camps. The dispute over targeting could affect whether that tactic might someday be used in Yemen and Somalia, too.
–Charlie Savage, “At White House, Weighing Limits of Terror Fight,” New York Times, September 15, 2011
Even if these stikes are considered to be within the Afghanistan war theater, obliterating groups of individuals whose identies are unkwown solely on the basis of some probabalistic algorithim appears to violate not only the international law of self-defense but also the precepts of international humanitarian law (the law of war). If that is the case, they constitute war crimes.
The Stakes: War Without Legal Limits, or International Law Governing the Use of Force
Reports of this debate on the legality under international law of targeted killings should be read in conjunction with unquestioned reports that the United States is actively developing a broad range of new drones for warfare, some as small as bees, and other reports that the United States is engaged in building a number of drone bases throughout a broad swath of countries in Africa, the Middle East, and South Asia.
See The Trenchant Observer, “International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World,” July 17, 2011; and
“Craig Whitlock and Greg Miller, “U.S. building secret drone bases in Africa, Arabian Peninsula, officials say,” Washington Post, September 20, 2011.
Connecting the dots, it becomes clear that the fundamental issue the United States faces is whether to seek its future security and that of the world through military means that tear down fundamental norms of international law and the authority of international institutions created to ensure their observance, or rather by acting in concrete ways to uphold and further develop with other countries the international law governing the use of force.
If President Obama wishes to follow the second course, he should listen to the State Department lawyers whose mandate includes both upholding international law and institutions (“dédoublement fontionnel”), and listening carefully to the opinions of international lawyers representing the views of other countries.
All should bear in mind that international law is a collective effort, and not a matter determined by the unilateral views of a single state or a small goup of states.
The Trenchant Observer
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e-mail: observer@trenchantobserver.com
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
