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Are US Attacks in Pakistan an Armed Attack on Pakistan? A Response to Timothy Waters

Published on September 30, 2009        Author: 

In a response to my previous post, Professor Timothy Waters, asks why it is that US attacks on non-State actors in Pakistan would not be acts of war against Pakistan. In this post, I attempt to answer that question. First, we can’t impute al Qaeda or Taliban attacks on our soldiers, which are continuous and well-known, to Pakistan merely because Pakistan is incapable of policing its territory.  Pakistan would have “state responsibility” (but not “imputation” or “attribution” [see Nicaragua v. U.S., 1986 I.C.J.]) – so Pakistan could be subject to sanctions not involving the use of armed force if Pakistan financed or even tolerated such attacks (according to the 1970 UN General Assembly Dec. Principles of  International Law, etc., and Nicaragua v. U.S., 1986 I.C.J.) unless Pakistan had effective control over al Qaeda or Taliban operations or later adopted them as its own (U.S. v. Iran, 1980 I.C.J.) – none of which has happened to my knowledge.  I suppose we agree on this.

Second, Professor Waters asks whether by merely using selective armed force in foreign state territory that is in response to ongoing armed attacks emanating from such territory engaged in or directed by non-state actors (triggering necessity as well as Article 51 self-defense) the U.S. has engaged in an armed attack on the state as such.  I understand from general patterns of practice and general patterns of opinio juris (obviously a few states and a few textwriters disagree) relevant to customary international law as well as a proper interpretation of Article 51 of the U.N. Charter that such selective responsive targetings are not an attack of the state as such and that such targetings do not trigger application of the laws of war applicable to an international armed conflict unless the non-state actor being targeted is a “belligerent” (under international law, triggering appllication of all of the customary laws of war vis a vis the armed conflict between the U.S. and such “belligerent” — perhaps still today, the Taliban [clearly the Taliban was at least a “belligerent” when the U.S. used armed force on Oct. 7, 2001 against the Taliban, and it had already been at least a “belligerent” during the war with the Northern Alliance before we went in]).  Read the rest of this entry…

 

The United States’ Use of Drones in Pakistan

Published on September 29, 2009        Author: 

Editors Note: We feature below a discussion between a group of leading United States academics on the US’s targeting of Taliban and Al Qaeda targets  in Pakistan. Each of the discussants is a  leading writer on international law, and on the use of force in particular.  We are delighted to post this discussion on EJIL:Talk! As usual, readers are invited to post their comments below.

The discussion kicks off with remarks by Professor Jordan J. Paust , Mike and Teresa Baker Center Professor at the University of Houston Law Center. His initial remarks were originally prepared in response to a request from the media for clarification regarding certain issues arising from US use of drones in Pakistan. The other discussants are Professor Mary Ellen O’Connell (Notre Dame Law School); Professor Leila Sadat (Washington University School of Law, St. Louis); Professor Tony D’Amato (Northwestern University School of Law); Professor Geoffrey Corn (South Texas College of Law); Professor Ken Anderson (American University, Washington College of Law); and Professor Timothy Waters (Indiana University at Bloomington).

Read the rest of this entry…

 
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Cheney Chatter and Complicity

Published on May 15, 2009        Author: 

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School.  His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

Former Vice-President Dick Cheney is chatting about his role in assuring approval and use of manifestly unlawful interrogation tactics such as waterboarding during the eight-year Bush Administration.  According to Cheney, he has “[n]o regrets” that he was directly involved in the approval of severe interrogation methods, including waterboarding, and he has admitted that he was involved in helping to get the process cleared by President Bush.  “[T]his was a presidential decision,” Cheney said, “and the decision went to the President.  He signed off on it.” (see here)

On September 16, 2001, Cheney publicly declared that “[a] lot of what needs to be done … [“on the dark side”] will have to be done quietly, … using … methods that are available to our intelligence agencies … to use any means at our disposal, basically, to achieve our objective.”  He added: “we” “have the kind of treatment of these individuals that we believe they deserve.”  For the next two years, many of his preferences were effectuated by his top lawyer, David Addington.  Moreover, it has been reported that Cheney attended meetings of the National Security Council’s Principals Committee in the White House Situation Room during 2002 and 2003, at which specific tactics such as waterboarding and the “cold cell” were addressed and expressly and/or tacitly approved and abetted.  It has also been reported that during this time there was “live feed” or “real time” viewing of parts of actual interrogations, including that of al Qahtani at Guantanamo Bay, Cuba.

According to the Center for Constitutional Rights (CCR), SERE tactics were being used against detainees at Guantanamo in September 2002 and that, during October 2002, military intelligence interrogators “used military dogs in an aggressive manner to intimidate” al Qahtani.  In November 2002, FBI Deputy Assistant Director Harrington reported that al Qahtani had exhibited symptoms of “extreme psychological trauma.”  Around the third week in November, he was subjected to what was known as the “First Special Interrogation Plan,” a plan to use tactics later detailed in an 84-page log describing their use during a six-week period.  CCR reported that among several tactics used were: threats against his family, forced nudity and sexual humiliation, threats and attacks by dogs, beatings, and exposure to low temperatures for prolonged times. Each of these tactics is patently illegal under the laws of war, human rights law, and the Convention Against Torture, among other relevant international legal proscriptions and requirements.  As my article The Absolute Prohibition of Torture [forthcoming in 43 Valparaiso Law Review 1535 (2009)] documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim.  If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.

Cheney’s direct involvement is evidence of complicity in international crime.  Read the rest of this entry…

 
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