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]).  Importantly, this assumes that there has been no U.S. use of armed force against the military, government officials, government buildings as such (e,g., buildings not being misused by non-state actor attackers), of Pakistan as such in any other way.  Wasn’t the targeting of an al Qaeda operative and a few others in a car on a road in Yemen a few years back clearly not an attack on Yemen as such?

A very interesting point is raised by Professor Leila Sadat in her response to my previous post:  Is the targeting of a group of Pakistani nationals who are taking a direct (“active”) part in hostilities in Afghanistan and in the armed attacks emanating from Pakistan an attack on Pakistan?  Note the difference between use of force in Pakistani territory and use of force against Pakistani nationals.  In general, the international community recognizes that an armed attack (intentionally) on the U.S., its military abroad, its embassies abroad, or its nationals (here or abroad) is an attack on the United States.  Clearly, the al Qaeda 9/11 attacks on U.S. nationals in New York was an (intentional) armed attack on the United States.  Therefore, an intentional attack on U.S. nationals, perhaps hundreds, in Phoenix and El Paso might be considered to be an attack on the U.S. (by the way, is it a matter of numbers, intent or what re: the conclusion that there has been an attack on U.S. nationals?).  In a reverse circumstance, what about the attack on Pakistani nationals?  I believe that once necessity for a response involving Article 51 self-defense occurs that such changes the facts and legal policies at stake sufficiently for one to conclude that a selective targeting is not an attack on Pakistan as such.  Otherwise, we would be concluding (1) that the state being attacked, i.e., the United States, has no right of self-defense against the non-state actors engaged in continuing armed attacks on U.S. military in Afghanistan (which is not the case and would be unrealistic, clearly outside of general patterns of legal expectation as far as I can tell at this time), or (2) that a permissible response under Article 51 must necessarily trigger a war between the United States and Pakistan when the Pakistani government has not consented to the U.S. use of necessary armed force.  The latter conclusion would not be policy-serving and, in my opinion is not one that is generally shared by the international community.  Pakistan, for instance, does not consider that it is at war with the United States, nor should it.  Waiting for Pakistani consent could be unrealistic — consider my hypo about armed attacks emanating from Mexico on a U.S. military base in west Texas.  Must, will, the U.S. wait for Mexican consent during a time when missiles keep hitting the U.S. military base?  No, although the U.S. President should communicate as soon as possible with the Mexican government to explain that we are not attacking Mexico, and so forth.  Yes, this is otherwise an intervention (interference with “sovereignty,” which itself is not absolute under international law) into Pakistani, or Mexican, territory (even if only by a drone), but Article 51 of the U.N. Charter necessarily overrides an impermissibility that would otherwise attach with respect to such an intervention (e.g., the U.S. cannot rightly engage in “law enforcement” in Pakistan without Pakistani consent, but self-defense is permissible under Article 51 of the Charter). 

Nearly everyone agrees that Article 51 self-defense is permissible once the “armed attack” trigger has occurred or there has been initiated or there is still occurring a process of armed attack.  Can the state being attacked only defend itself within its own state?  That would be nonsense and clearly opposed to general patterns of opinio juris concerning the propriety of self-defense against armed attacks (a few might disagree, but customary international law and the objective meaning of treaties rests upon generally shared opinio juris).  This does not obviate inquiry into the proportionality of the U.S. response (see, e.g., The Oil Platforms Case (Iran v. U.S.), 2003 I.C.J.; and Dem. Rep. of the Congo v. Uganda, 2005 I.C.J.).  During the Caroline “case” with respect to the 1837 incident when the U.K. (controlling Canada) attacked The Caroline in U.S. territory there seemed to be no questioning of the fact that “self-defense” by the U.K against prior (6 days prior) armed attacks by non-state actor “rebels” was what was being argued about, especially with respect to ongoing armed attacks that continued for a year or more.  U.S. Sec. of State Webster was complaining about the particular means used, e.g., when during the early 19th Century the U.K. could have waited until The Caroline entered Canadian waters.  Today, if the commanders of al Qaeda or the Taliban who order such attacks on U.S. military in Afghanistan do not enter Afghanistan, the you-can-wait-until-they-enter scenario does not arise.     An additional hypothetical:  What if a  person is firing a rifle from the back bedroom window of a house into another house and had killed a child in that house – would the neighbor whose child had been killed and is still under a rifle attack have to “warn” the shooter before using a weapon to kill the shooter (isn’t the shooter on notice of what can happen next)?  Would the neighbor have to wait for consent from the owner of the house from which the rifle fire is coming before using a weapon in self-defense?  What domestic law of any state within the U.S. or any country would require such a warning or consent?  Certainly police could be called by the neighbor (assuming time to even do that), but must the neighbor wait until the police arrive and take “measures necessary to maintain” law and order while still under a rifle attack that can kill other members of the neighbor’s family of the neighbor?  And at the international level, there is no world police force.                                 

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).

I. Professor Jordan J. Paust 

In general, proportionate use of armed force against non-state actors who are directly engaged in ongoing armed attacks against U.S. military in Afghanistan are permissible acts of self-defense under Article 51 of the United Nations Charter [see my article in 35 Cornell Int'l L.J. 533, 538-39 & ns. 17-18 (2002)].  As such, they are not “assassinations” within the meaning of the laws of war, which would otherwise be impermissible and war crimes, or unlawful “arbitrary” killings within the meaning of human rights law.  Such Article 51 targeting could also occur in time of peace against non-state actors who are engaged in an ongoing process of armed attacks against the United States, U.S. military, or U.S. nationals abroad, and this would not mean that the U.S. is at “war” or in an “armed conflict” with the non-state actors that do not have the status under international law of an “insurgent,” “belligerent,” “nation,” or state, and we would not be at war with any other entity that was not attacked (e.g., the state in which the targetings occur).  For example, these are not acts of war against Pakistan.  Further, under Article 103 of the U.N. Charter, the right of self-defense against an armed attack and ongoing processes of armed attack by non-state actors trumps inconsistent international agreements.  However, all states also have an obligation under the U.N. Charter universally to respect and observe human rights.

However, there has also been targeting of those who, according to generally shared expectations within the international community, are not directly involved in the armed attacks (or taking a direct part in armed hostilities either), e.g., drug lords who merely finance al Qaeda or the Taliban.  I know that some disagree and argue that those who finance armed attacks can be considered to be taking a direct part in hostilities (bankers beware), but this is definitely a rare minority viewpoint that has not been accepted by the international community.  These acts of targeting would be illegal and the label “assassination” can apply within the context of an international armed conflict such as that occurring in Afghanistan and, as expanded in given instances by the United States, in other countries.  They might not be “arbitrary” within the meaning of human rights law, but there is little authoritative guidance in that regard and reasonable people might disagree.

I note also that any time U.S. military personnel equipped for combat are engaged in an armed conflict, it is in the interest of the United States to recognize that the conflict is of an international character in order for our soldiers to have “combatant” status and “combatant immunity” for lawful targeting during an international armed conflict as well as prisoner of war status.  Under international law, we cannot be at “war” with al Qaeda, but we have been involved in an international armed conflict with the Taliban when we internationalized a belligerency (to which all of the customary international laws of war had already applied) between the Taliban and the Northern Alliance on October 7, 2001.  Contrary to nonsense mouthed by the Bush Administration, human rights law applies during any armed conflict as well as in times of relative peace.

 II. Response from Professor Mary Ellen O’Connell (Notre Dame Law School):

I am in the process of completing a draft book chapter on combat drones. The final version should be posted on SSRN by October 9.  The analysis is at variance with regard to some of your points to the reporter.  Most significantly, it includes reference to the new ICRC guidance on direct participation in hostilities.  The guidance makes clear that individuals may not be targeted without warning outside a situation of armed conflict.  That position is consistent with both IHL and human rights law.

III.  Professor Paust’s Reply:

 I can’t believe that if the United States is attacked from non-state actors in Mexico that the U.S. must warn the non-state actors before responding under Article 51 of the U.N. Charter (which, under Article 103, would override inconsistent treaty law except for the human rights duties of all members under Articles 55(c) and 56) — and what human rights?  The right to life, for example, is set forth as merely a right from being “arbitrarily” deprived in ICCPR, art. 6 — and apparently with respect to persons who are under a state’s effective control.

 IV.  Questions and remarks from Professor Leila Sadat (Washington University School of Law, St. Louis):

 I wonder if the last point is too broad.  What does it mean to say that the “United States is attacked by non-state actors from Mexico?”  If drug lords open fire in U.S. territory and harm or kill U.S. civilians, that, in my view, is not an “attack on the United States” nor does it create an armed conflict – nor does it invoke Article 51 of the Charter, nor does it give the U.S. a right to send armed drones to Mexico to execute suspected drug lords.  I think such a use of drones, if leading to death, would violate international human rights law (and common decency, but that is a subject for another day). 

 So perhaps it is more useful to be quite careful in delimiting permissible and nonpermissible uses of drones (I agree with Mary Ellen on this one, and think there are more limits than Jordan’s statement suggests) so that nonspecialists don’t think that any violence by so-called “non-state actors” gives a state the territory of which has presumably been violated a right to respond with cross border death squads, be they machines or human beings – or, to put it another way, would it have been legal (or a good idea) for the UK to use drones against suspected Irish “terrorists?”  The McCann case (European Court of Human Rights) seems to say no.

 V.  Reply of Professor Paust:

Perhaps, and I take the point that one has to decide what constitutes an “armed attack”.  I had in mind an al Qaeda attack on the United States on 9/11 when communicating with the media person.  What if there was a Hezbollah rocket attack from Mexico on a U.S. military base in west Texas.?

VI.  Professor O’Connell’s Reply:

It is a conflicts of law question.  IHL and human rights law restrict states to police rules for the use of lethal force in peacetime. Moreover, as of May, the drone attacks were resulting in about 50 civilian deaths for every one intended target.  The numbers look better since then but we are investigating whether that is really the case or the reporting has changed.  The paper I referred to has an appendix confirming the 50-1 number, which initially came from David Kilcullen.  The final version of the paper will discuss why the numbers of civilian deaths have been so high.  One reason could be the involvement of the CIA in these attacks.  The CIA, to my knowledge, are not trained in LoAC/IHL.  Does anyone have different information on that point?

Regarding the attacks from Mexico, I am in accord with Leila, and as to any further hypotheticals, you might find the ILA Use of Force Committee’s Initial Report on the Definition of Armed Conflict helpful.

VII.  Remarks of Professor Geoffrey Corn (South Texas College of Law):

I echo Jordan’s response, which I believe calls into question (properly) the conclusions of the ICRC report.  Moreover, CIA General Counsel’s office received LOAC training from the ILAW Department at the [U.S. Army] JAG School.  Whether that training is provided to operatives I don’t know, nor do I know for sure if Drone strikes are conducted exclusively by CIA personnel, or are conducted by joint CIA/DOD teams.  If the latter, I have no doubt that the individuals involved are well versed on both the LOAC and the ROE.

 VIII.  Remarks of Professor Tony D’Amato (Northwestern University School of Law):

Regarding the exchange among Mary Ellen, Jordan, and Geoffrey:  Isn’t there an inconsistency in your comments on warning?  If Mary Ellen is right that drones are inherently inaccurate weapons, what’s the point of warning the targets?  Shouldn’t you be warning the innocent bystanders?  Yet how can you identify the innocent bystanders?

IX.  Professor Paust’s addition to Professor D’Amato’s questions:

And aren’t the drones “smart” weaponry — far more selective, proportionate than Bill Clinton’s use of missiles against al Qaeda in 1998? 

X.  Remarks of Professor Ken Anderson (American University, Washington College of Law):

 I’m actually on the road and unable to really focus as I’d like on this — I have a feeling, though, that my views are complicated and probably too heterodox from many responding here for me to really propose in-line edits – instead I’ll just refer anyone who might be interested over to a book chapter coming out in a policy book from Ben Wittes/Brookings Press on counterterrorism proposals to Congress.  I have a chapter there on targeted killing — a not finalized working version is up at SSRN.

 XI.  Response from Professor Paust:

I think that this topic has sparked real interest and certainly some disagreement — e.g., what is an “armed attack”?  is a “warning” necessary?  is “consent” from the state from which the armed attack is emanating necessary? are drones inherently indiscriminate (or merely their use in certain cases)?  Do human rights apply to those, for example, who are not within a state’s effective control [see ICCPR, art. 2]?  Do some even argue that Article 51 self-defense is not permissible unless it is against a state or “belligerent” or “insurgent” and the laws of war (or some of them) would apply?  I had thought that the Caroline incident was a well-known example of self-defense pertaining with respect to non-state actor attacks (although the British and U.S. disagreed about the test regarding particular means of response against a U.S. vessel in U.S. waters, the U.S. arguing that even self-defense measures against attacks that had already occurred and were ongoing had to be necessary, etc.) and that the Security Council recognition of the propriety of a U.S. use of force in self-defense after 9/11 was further evidence of generally shared expectation that non-state actor armed attacks can trigger a right of self-defense under Article 51 of the Charter.

XII.  Questions from Professor Timothy Waters (Indiana University at Bloomington):

Jordan, I was curious about one point in your initial comment, although I realize I am not seeing it in its full context. You mention that an attack against a non-state actor (like Al Qaeda) would be legal under Article 51 and “we would not be at war with any other entity that was not attacked (e.g., the state in which the targetings occur).  For example, these are not acts of war against Pakistan.” But why not? Unless we are imputing the acts of the non-state actor to the state, or advancing a theory that the state’s inability or unwillingness to halt the attacks somehow voids its sovereignty, why would we conclude that this was not an attack against it, because clearly, if we are launching missile strikes into Pakistan (even if aimed at particular non-state actors within), ‘that entity’ is being ‘attacked,’ even if our intention is to target a non-state actor within.

I suppose one could argue that an otherwise legitimate act of self-defense cannot, by definition, constitute an illegitimate act of war, or even that it cannot be an attack for purposes of triggering the targeted state’s own Article 51 rights (because legitimate defense cannot give rise to a right of defense), but given the complexities of evidence, it seems rather too much to say that the state attacked would be obviously wrong to treat the landing of missiles on its territory as a casus belli. Certainly it is interesting to see the theory of self-defense (which is a function of state sovereignty) deployed to convert, not only any civilians harmed in the attack, but also the legal edifice of Pakistan’s sovereignty, into a form of collateral damage.

 Related EJIL:Talk! Links

http://www.ejiltalk.org/usnato-targeting-of-afghan-drug-traffickers-an-illegal-and-dangerous-precedent/

http://www.ejiltalk.org/clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/

http://www.ejiltalk.org/afghanistan-accedes-to-additional-protocols/

http://www.ejiltalk.org/what%e2%80%99s-in-a-name-the-gwot-redefinition-accomplished/

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.  As documented in my article, criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator.  The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or whether it does in fact constitute “torture” or some other widely-known and unavoidably criminal conduct such as cruel or inhumane treatment.  As international criminal tribunals have affirmed, it suffices that an accused was aware of the relevant factual circumstances (Prosecutor v. Kordic & Cerkez, Case No. ICTY 95-14/2-A, Judgment, ¶ 311 (Dec. 17, 2004)) and that even a direct perpetrator “need not have known that his or her act … amounted to an ‘inhumane act’ either in the legal or moral sense.” (see Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 HARV. INT’L L.J. 237, 297 n.323 (2002)  Furthermore, all acts of assistance, by words or acts and omissions, that lend encouragement or support will also suffice if the accused knows or is aware that such conduct can or will facilitate the use of what happens to be an illegal tactic.

It is apparent that Dick Cheney has joined the ranks of those who are reasonably accused of having been complicit with respect to international crimes authorized and abetted during the Bush Administration’s serial and cascading criminal behavior.  For evidence of complicitous behavior by Condoleezza Rice, see http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php.  For evidence of complicitous behavior by Jay Bybee, see http://jurist.law.pitt.edu/forumy/2009/04/second-bybee-memo-smoking-gun