In the context of the debate on whether the drone attacks amount to a use of force against Pakistan, there is no disputing that the intent is hostile. Professor Paust seems to be justifying this hostile intent on the basis that it is directed not againt the State of Pakistan, but against the non-State actors situated on its territory. However, the object of the attacks aside, the effect is nevertheless a violation of Pakistan’s territorial integrity. Thus, if the Article 2(4) was to be interpreted on the basis of the ‘effect’ test, this would amount to a use of force against Pakistan, and provide them the right to self defence. If the ‘intent’ test were to be adopted, it would justify the attacks, but would also potentially have far-reaching implications in the context of humanitarian intervention, which is yet to receive widespread legal recognition.

http://legaldevelopments.blogspot.com/2008/12/mumbai-attacks-and-link-to-pakistan.html

http://legaldevelopments.blogspot.com/2008/12/mumbai-attacks-the-link-to-pakistan.html

Just as I do not think self defense against a non-state actor addresses itself to the right of territorial integrity for its host, I do not believe the right to exercise national self defense includes the right to do so in ways not permitted by customary or conventional IHL. The implications of taking that position are staggering. I do not believe the preemptive power of Art. 103 extends that far. There is no necessary conflict between Art. 51 self defense and IHL.

I am also not sure that I can agree with your definitions of international and non-international armed conflict. In any event, my point did not relate to combatant immunity for insurgents. It is clear that none is available in IHL. My point related to those acting on behalf of a sovereign; meaning – in the context of that discussion as I understood it – CIA personnel operating drones. Perhaps this is another case where we spoke past one another a bit. I was addressing your point that no combatant immunity was available, and clarifying that it is, I think, generally understood to exist for armed forces representing a state in non-international armed conflict. Exactly how my understanding of non-international armed conflict relates to your above expressed insurgency threshold, I am uncertain at this point.

In any event, this has been truly stimulating. I wish everyone the best and look forward to more great chats on EJIL.

I also believe the availability of combatant immunity in non-international armed conflict is is firmly established in U.S. law, see the Lieber Code and William Winthrop, Military Law and Precedent. As to engaging in hostilities without combatant immunity from the perspective of U.S. law (as preserved in the UCMJ and codified in the MCA), see John C. Dehn, The Hamdan Case and the Application of a Municipal Offence: The Common Law origins of ‘Murder in Violation of the Law of War’” J. Int’l. Crim Just. 63-82 (2009).

However, with respect to beliefs and expectations, the international community’s review normally is not (and should not be) limited to inquiry into U.S. and Pakistani subjective views and whether they acted “in good faith.” The community normally will also consider “objective” views or those generally shared within the community (i.e., generally shared expectations or generally shared subjectivities) regarding the appropriateness or reasonableness (itself an “objective” standard or conclusion based in common patterns of expectation about what a reasonable actor under the circumstances would or should do) of the actor’s conduct. This is common when conduct, even if engaged in in good faith, is second-guessed by the community (or its formal institutional representatives) under community standards and a theory (or conclusion) of “fault” or “crime,” and so forth. A similar process of review can take place with respect to my last hypo involving a domestic “self-defense” killing of a shooter from a neighbor’s house and an equally odd situation could arise if the owners of the two houses started exchanging fire. Of course, the “problem” is only exacerbated if the community would tolerate “anticipatory” self-defense as opposed to what is textually limited in Article 51 of the U.N. Charter to self-defense “if an armed attack occurs.” Presently, the community’s requirement that an “armed attack” occur provides a relatively objective aspect of “fact” that can be addressed during a process of review of decisions to use responsive armed force in self-defense that may be lacking if people started to accept the use of force in circumstances where a state merely claims to be responding to a “threat,” even a “threat” of alleged imminent “armed attack” (because, by definition, an armed attack has not yet occurred or been initiated).

I note another problem that is presented in one of the comments by Mary Ellen. If civilian CIA personnel are flying the drones and targeting targets during an armed conflict, they would seem to lack “combatant” status and, therefore, “combatant immunity” for what otherwise would be lawful targetings during an international armed conflict (no one has combatant immunity during a mere insurgency). Such persons would be unlawful, “unprivileged” fighters and subject to prosecution under relevant domestic law for crimes such as “murder.” If so, President Obama should direct that only members of the regular armed forces of the United States (“combatants”) should fly the drones and engage targets. Yet, perhaps because of the Article 103 of the U.N. Charter override with respect to conduct (that any person could be engaging in lawfully) that involves permissible self-defense targetings, CIA personnel could have an Article 51 defense.

Again, I agree with you that resort to self defense against the non-state actor is independent of the host state’s responsibility. However, one must still find an excuse or justification that precludes the wrongfulness of a violation of the “host state’s” territorial integrity.

As a general principle, self defense justifies an otherwise-prohibited act only against the source of a threat or act. Thus, absent some form of host state responsibility, it is unclear how the right of self defense against a non-state actor justifies abrogating the right of a third party, the territorial integrity of a host state.

The major’s claim appears different from yours given what I excerpted above. He asserts host state “responsibility” (but not “attribution”) as a precondition or justification for the “override” of its territorial integrity and resort to self defense. I am unable to locate with precision, in his argument, the role the right of self defense against a non-state actor plays with regard to the breach of the territorial integrity of that actor’s host state.

The Carter, Bradley, and Trimble international law text appears to follow this approach. It seems to frame this issue (in a much broader context) in terms of countermeasures coupled with necessity. This, at a minimum, has the advantage of relying upon excuses or justifications that directly operate on the right (of territorial integrity) or duty (to respect territorial integrity) being abrogated.

Article 21 of the RSIWA states that ” [t]he wrongfulness of an act is precluded if the act constitutes a lawful measure of self defence taken in conformity of the Charter of the United Nations.” As a purely textual matter, it could bear the weight of the theoretical approach you offer, though I do not have my commentary handy to seek further information on this provision. I suspect it was not intended to be that broad or to contravene the Nicaragua decision.

What better supports your overall position, from my perspective, is a necessity claim under Article 25 of the RSIWA. This would potentially excuse a violation of territorial integrity necessary to exercise the right of self defense in the face of an imminent threat without the precondition of responsibility. This was my earlier point. In that case, the right of self defense is not doing the work – necessity is. For that reason, I would take issue with your phrasing that “self defense overrides territorial integrity.”

Thus, from a theoretical perspective, it appears preferable to invoke the host state’s responsibility, though resort to a necessity claim might make it unnecessary. That said, one of the elements of that article (assuming it represents customary law) might preclude its use and I must reflect further on it.

In any event, invoking the responsibility of the host state is probably the best course as a practical matter in my humble opinion. There is generally no question of a “host state’s” responsibility. Either it is controlling the non-state actor or failing to do so. In either case, its responsibility is clear (see arts. 8 & 9, RSIWA). Failing to invoke that responsibility opens the door to claims that the host state’s rights are impermissibly abrogated.