magnify
Home EJIL Analysis Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?

Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?

Published on January 10, 2010        Author: 

Ken Anderson has an excellent, very interesting post regarding the US strategy of using drones for targeted killings of suspected terrorists in Pakistan and elsewhere (a topic we’ve addressed at the blog before). He argues that, as a matter of both law and policy, the current justification of the US government for its targeted killing practices is insufficient, because it relies far too much on IHL concepts like ‘combatant’ and IHL rules on targeting which are dependent on such concepts.

Such a justification is of course deeply problematic because IHL applies only in armed conflict, while the position taken by the Bush administration that the ‘war on terror’, or the US struggle again Al-Qaeda, is some sort of armed conflict unlimited in time and space to which IHL applies, is not very tenable. Unfortunately, the Obama administration has also used IHL in this way, if with some adjustments, while in Hamdan the US Supreme Court ruled that Common Article 3 was applicable and that the US is in some sort of global, amorphous non-international armed conflict with Al-Qaeda. (The Hamdan judgment is however quite unclear, and would bear other readings as well, such as that there is a non-international armed conflict between the US and Al-Qaeda in Afghanistan).

There has long been a consensus outside the US legal academia that IHL is inappropriate to regulate the fight against terrorism, outside specific situations where armed hostilities actually occur and have a certain level of intensity, as in Iraq or Afghanistan. For God’s sake, just how absurd would it be to look at the most recent Christmas/Underwear Bomber as some sort of ‘unlawful combatant’ in a global armed conflict?

Ken has thus valiantly argued on several occasions that the US government should desist from invoking IHL in this unconvincing manner, and that it should rely instead on its customary right of self-defense to justify the targeted killings of suspected terrorists:

That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense — if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

Now, assuming that targeted killings of certain suspected terrorists are desirable in at least some cases as a matter of policy, is Ken’s self-defense argument for justifying them sufficiently persuasive? I respectfully submit that it’s not.

First, there are the obvious structural problems in invoking self-defense against non-state actors, ranging from whether such self-defense is even permissible (I think that it is), to what the actual conditions for it are (e.g. should there be a link of attribution to a state), whether a particular terrorist attack crossed the Article 51 of the Charter threshold of an armed attack, etc., etc. (For a discussion of these issues, see Christian Tams’ recent article in the EJIL.)

But then there is more fundamental problem: what is the actual wrongfulness that is being precluded with self-defense, and can self-defense even conceivably do it?

As I see it, when the US uses a predator drone in Pakistan to kill a terrorist, it thereby commits two distinct acts which can in principle be characterized as wrongful: it violates the sovereignty of Pakistan, and it violates the right to life of the person killed. It is the wrongfulness of the former only that can be precluded by an invocation of self-defense, just like Pakistan’s (or Yemen’s, or whoever’s) consent would preclude it. But, assuming the (extraterritorial) application of human rights treaties to a given situation, I don’t see how self-defense could be used to preclude the wrongfulness of an act contrary to the individual rights enshrined in such treaties. It is indisputable, for example, that self-defense as a matter of the jus ad bellum cannot preclude the wrongfulness of the violations of the jus in bello, i.e. IHL. How could it be any different when it comes to human rights? Indeed, the ILC explicitly says so in its commentaries on the articles on state responsibility, at 74.

Thus, I don’t see how Ken’s proposed solution can actually do all the work that it needs to do. It’s one thing to say that a state can’t complain about another state violating its sovereignty when it responds to an armed attack by a non-state actor which the former state did not prevent. It’s quite another to say that individuals somehow lose their equally inherent rights just because a state exercises its inherent right to self-defense.

What states wishing to use targeted killings can argue – and have argued – to avoid this problem is that human rights treaties don’t apply at all, for example because of extraterritoriality. These arguments are, in my view, entirely unprincipled and unpersuasive, but I won’t develop that here. Assuming that a human rights treaty does apply, self-defense just doesn’t cut it. On the other hand, if the human rights treaty doesn’t apply, then the invocation of self-defense becomes redundant.

However, targeted killings may, in some circumstances, be justifiable within the framework of the human rights treaties themselves. Article 6(1) ICCPR thus only prohibits arbitrary deprivations of life, while Article 2(1) ECHR allows for intentional taking of life when it is ‘absolutely necessary’ to do so to defend other persons from unlawful violence, to effect a lawful arrest, or to quell a riot or insurrection. It should not be forgotten that even democratic states frequently employ lethal force, even in situations with possible collateral damage – just take the examples of a hostage taking, or shooting fugitives to prevent their flight.

What human rights treaties invariably require, however, is a showing by a state that the killing was necessary; that other, non-lethal options were explored but were not viable. If a drone were to some day kill Osama bin Laden, whether he’s holed up in some cave in Pakistan or, to get rid of the extraterritoriality problem, is found hiking the Appalachian trail, this would not constitute a violation of his human rights if his actual arrest was difficult or impossible. It is only this proportionality analysis which can determine the lawfulness, vel non, of targeted killings. This is, indeed, how the Israeli Supreme Court looked on the matter in its Targeted Killings case. Accordingly, what is necessary is an individualized and factually supported determination – a blanket policy of killing is not permissible.

This is so, in my view, even in an indisputable armed conflict, since it is questionable to what extent human rights law can be displaced by IHL targeting rules: lex specialis in particular is not worth the Latin its written in. And since no Suday would be complete without some shameless self-promotion, the readers might be interested in a forthcoming article of mine on norm conflicts, IHL and human rights which deals with some of these issues, and is now available on SSRN. I’ve also posted an article on the Human Rights Committee Sayadi case on Security Council sanctions against suspected terrorists, which is derived from my initial take on the case here at EJIL Talk. Comments are, as always, most welcome.

Print Friendly
 

19 Responses

  1. Darryl Li

    Dear Marko,

    Thanks much for this very edifying post. I think there may be an additional problem with Anderson’s argument insofar as it ignores how U.S. hegemony actually works. [A third issue, namely that it threatens to stretch the notion of self-defense far beyond what is permissible, is obvious and has already been highlighted in the comments on his original posting.]

    As you rightly point out, invoking self-defense could preclude the wrongfulness of violating the sovereignty of the state where the attack takes place. But if that is the case, then wouldn’t such an invocation concede that the local state has not given its consent to such use of force? If so, this would seem very problematic for how the U.S. manages its relationships with client regimes.

    In the conduct of its so-called global war, the U.S. almost always operates with the nominal consent of host states, however problematic/formalistic that notion of consent many be. As the recent death of the Jordanian intelligence officer in the attack on the CIA base in Khost reminds us, much of the dirty work of U.S. policy — from intelligence gathering to detention and interrogation, to full-scale proxy wars — is conducted by client states. These relationships are of course incredibly fraught with difficulties but there is every reason to believe that the policy of drone attacks in Pakistan and Yemen has the tacit approval of those governments.

    It seems to me that Anderson’s approach is tantamount to declaring that the consent of U.S. proxy states is simply not needed, because if it has been withheld the use of force is still justified. This would be incredibly damaging to the argument (or facade, depending on one’s point of view) that the U.S. is fighting in partnership with and in support of other sovereign states. It would also signal to local governments that they have no legal entitlement to participate in or otherwise influence such policies – not a message I would imagine a U.S. ambassador being enthusiastic to deliver. Violating the sovereignty of client states is not a wrong the U.S. wishes to preclude; it is a wrong the U.S. wishes to avoid whenever possible.

    However problematic, the mainstream U.S. establishment view that there is one overarching and geographically unconstrained non-international armed conflict (global civil war) has at least one ‘virtue’ in this regard: When the U.S. invokes common article 3 to justify military operations in the territory of a consenting state, there are two possible readings. The first is that we are talking about the global civil war launched by the AUMF. The second is that the U.S. is merely engaged in a localized non-international armed conflict in support of a local sovereign (hence the ambiguity you point out in Hamdan). As far as the U.S. interprets IHL, the result is the same: common article 3 is the framework. But there is enough flexibility to presume the consent of local states, and that potential for ambiguity suits the U.S. and its clients when it comes to issues as controversial as drone strikes, secret prisons, and so on.

    You are correct to point out that Anderson’s argument holds little promise for persuading critics of U.S. policy in the international legal and NGO community. What Anderson also fails to appreciate is that there is an equally, if not more important, constituency the U.S. government must take into account: the despots upon which much of its foreign policy continues to rely.

    Darryl

  2. Colin

    Dear Marko,

    My compliments on an insightful post. Just one question: in your tenth paragraph (excluding the block quote), you write that “…On the other hand, if the human rights treaty doesn’t apply, then the invocation of self-defense becomes redundant.”

    Why is this? As you said, there are two distinct acts in a targetted killing: the (possible) infringement of territorial sovereignty, and the (possible) breach of human rights. Assuming the target State has not consented to the killing, isn’t a self-defence claim still required to preclude the wrongfulness of the violation of sovereignty even if the human rights treaty does not apply extra-territorially?

    Regards,
    Colin

  3. Marko Milanovic Marko Milanovic

    Darryl,

    Yes, you’re right to point out that it is politically unattractive for the US to raise a self-defense justification, since this might be seen as excluding the consent of whatever state the US forces would be operating in, e.g. Pakistan. But this does not necessarily mean that the US does not have a valid claim to self-defense, which it might rely on if the purported consent is vague, its scope is limited, or is at some point withdrawn. Take the Desert Storm as an example – the US-led allies could justify their use of force against Iraq both on the basis of collective self-defense of Kuwait and on a Security Council resolution.

    Colin,

    Quite right – I was thinking solely of the rights of the individual, which would (IHL aside) basically not exist if the human rights treaty did not apply. An invocation of self-defense would still be necessary in regard of the violation of the state’s sovereignty, unless it actually gave consent, or if there is a Security Council resolution.

  4. Jordan J. Paust

    Every one of the issues mentioned is addressed in my draft article. The self-defense paradigm is neither an armed conflict or law enforcement paradigm as such, but see the article. Let’s no forget that human rights law applies in all social contexts but, with respect to particular persons outside a state’s territory or occupied territory, only when the person is within the actual power or effective control of the state. See
    http://ssrn.com/abstract=1520717
    click on download, then when the SSRN logo pops up, click onto the logo, then follow directions to download. Join ssrn free.

  5. apparently my other post didn’t make it onto EJILtalk. ALL of these issues are addressed in my draft article:
    http://ssrn.com/abstract=1520717
    H.R. apply in all social contexts, but outside a state’s terr. or occupied terr. a person has to be in the actual power or effective control of a state. There is no lex specialist override of h.r. law however. The U.S. is not bound by the Eur. Conv., which has its own lawful acts of war exception. The self-defense paradigm is different that either the armed conflict paradigm or the law enforcement paradigm. Numerous writers recog. that self-defense agaisnt non-state armed attacks is permissible. No foreign state consent is req. for lawful acts of self-defense under Art. 51 of the Charter, and so forth

  6. Federico

    Drones are operating in both Afghanistan and Pakistan. In the Afghan war, the zone of operation coincides with the boundaries of that country, as US troops have a limited right to (hot) pursuit the insurgents across the border and within Pakistan, and in which they may use only responsive force, as a form of self-defence, while ISAF cannot operate beyond the border. The use of drones within the zone of operation, by NATO-led ISAF or the US-led Enduring Freedom coalition, against those who direct participate in hostilities is legal. The law prohibits just a disproportionate force or indiscriminate attacks. In Pakistan, as well as in other hot spots of the globe, outside the context of war, human rights should have the primacy in regulating the employment of lethal weapons. In targeting Al-Qaeda operatives, the US is exercising military force extraterritorially and outside the context of an armed conflict, and thus it has to implement the regime imposed by the International Covenant on Civil and Political Rights. Thus, the US should follow a law enforcement model, which imposes a less rapid and more risky effort to arrest terrorists. Chronicles report a significant aerial campaign to track and kill terrorist operatives along the permeable frontier between Afghanistan and Pakistan, and in the tribal areas of Pakistan defined as F.A.T.A. Strikes require a vast work of intelligence for the identification of the target and its constant surveillance. Ground-level information is also extremely important. Thus, in numerous cases there is time to elaborate a plan for the strike as well as a special operation to arrest the target. The choice for the strike is an evaluation of costs and benefits of the ground operation, at the end of which the targeted killing option prevails. In the debate over the employment of precision weapons to kill named enemy fighters recovering far from the battlefield, the pros focus on the value of the target, considered a public enemy whose killing is indispensable, while little attention is reserved to his human rights. Worst, the rights of his relatives are not considered at all. Referring to operations conducted in the West Bank and Gaza, D. BYMAN observed that Israel found it hard to kill only terrorists. In the F.A.T.A., the society has a tribal structure and families are enlarged. People live concentrated in hamlets and compounds. Predators and Reapers are precise weapon dealers, but the radius of a Hellfire missile always includes those who are relatively close to the target, and the hit is capable of destroying an entire neighbourhood. A strike against a tribal leader normally kills his entire family and a certain number of bystanders. This is unacceptable under the law of human rights.

  7. John C. Dehn

    Marko,

    Whatever the view of U.S. or European academics or practitioners (and there are some of each on all sides of this debate as this is not a uniquely U.S. view) or the ECtHR implementing the ECHR based on formalistic legal arguments, I think an empirical analysis of state practice is required regarding the extent to which international human rights norms are observed in both international and non-international armed conflict.

    States still make international law. They have delegated implementation, and therefore interpretation, to some international tribunals. However, they still make and can change that law. Whether and the extent to which human rights norms apply is not solely determined by an academic’s or court’s norm conflict analysis, it is determined by how the states themselves reconcile these competing norms in practice. If in their view lex specialis applies differently in this context, then that is the law. Some would go so far as to say that the opinions of states that do not engage in armed conflict are generally less persuasive or authoritative on this point than those that do. I reserve judgment on that position.

    There is no question that at least SOME fundamental human rights norms apply in armed conflict even in the view of U.S. academics and practitioners, such as the prohibitions of genocide and crimes against humanity defined in the ICC Statute. However, the attempt to apply all possible human rights norms to all individuals in armed conflict is inconsistent with the very nature of armed conflict. This is why Ken is painfully attempting to find another explanation, which you rightfully find (from your perspective) not to be fully persuasive. Fundamentally, the application of ALL asserted human rights norms turns non-international armed conflict into a series of self defense encounters rather than armed conflict. Such a standard could not survive in the actual condition of combat.

    IHL necessarily regulates only the outer boundaries of permissible conduct in combat. For example, every attack which proportionately and incidentally deprives civilians (even if not taking a direct part in hostilities) of their lives or property is lawful under IHL. However, each is also an arbitrary deprivation of life, because these civilians did nothing to warrant the injury. Because the generally understood concept of self defense does not allow for the injury of innocent bystanders, the concept of self defense could not justify this result.

    The touchstone of armed conflict is that some targeting is permissible based principally on status, not conduct. That status is determined in part by conduct in both international and – to a much greater extent (see e.g. “continuous combat function”) – non-international armed conflict. There is no IHL requirement to capture rather than kill. Necessity IS required to target the enemy – but what is necessary is subject to BROAD discretion. Targeting a specific individual need not be proven ESSENTIAL to prosecuting the war, but it must be helpful and not completely gratuitous. Targeting an enemy combatant not hors de combat is almost always, if not always, understood to be helpful to ending the conflict.

    In other words, what you may be arguing is for an end to all non-international “armed conflict” as such based on states’ asserted human rights obligations. That is a tenable position. But we must then be honest about what we are proposing. If international human rights law fundamentally requires that all violence in non-international armed conflict be justified by self defense, then we no longer truly recognize the right to engage in armed conflict unless we erode the concept of self defense (as you note above). Not only do I think this is dangerous, I suspect it does not reflect actual state practice and opinio juris.

    We must also be careful not to confuse the jus ad bellum and jus in bello of self defense in response to an armed attack. I believe Jordan is not always precise on this point, as his above and prior comments indicate, though I think he makes valuable contributions to the dialog.

  8. Please read the article on ssrn. Note that the de facto theatre of war is actually in part of Pakistan — e.g., where top Taliban and al Qaeda persons plan, direct, and initiate their armed attacks as direct and active participants in an international armed conflict. Under Article 51 of the Charter, they are targetable under the circumstances and with respect to principles of reasonable necessity and proportionaltiy. Under the laws of war, they are targetable under similar principles, as highlighted in Melzer’s important work on Targeting. All in my draft article.

  9. Marko Milanovic Marko Milanovic

    John,

    (1) I have never argued that states do not make international law. My argument is that the law that states have made is conflicted, i.e. that one branch (IHL) of the law says X, while the other (IHRL) says not X. Both branches are equally state made, and equally legitimate, and there is, in some cases, no legal tool that can avoid or resolve the antinomy.

    (2) I am also not making an argument out of customary law, but out of treaty law. The practice of states in interpreting a treaty is of course a relevant consideration in treaty interpretation, but one most certainly does NOT need to establish state practice and opinio juris in order to reach a conclusion on treaty interpretation. My argument is that IHL and IHRL treaties when properly interpreted lead to conflicting results, in certain specific situations.

    (3) As for lex specialis, that is precisely an academic or judicial construct – it was first mentioned in the ICJ’s Nuclear Weapons advisory opinion, and has taken hold ever since. My argument is that it is entirely insufficient to address the nature of the relationship between IHL and IHRL, and indeed that there is no evidence in state practice that lex specialis is a rule of norm conflict resolution.

    (4) As for self-defense, there is no such thing as a jus in bello self-defense, as you seem to claim – it is exclusively a jus ad bellum concept, and that is precisely the problem when it comes to violations of IHL and IHRL, whose wrongfulness it is unable to preclude.

    (5) I also do not understand your argument regarding non-international conflicts. There is no reason of principle why human rights law would not apply in such situations, while the concept of self-defense is by definition perfectly irrelevant in an internal conflict. It is most certainly possible to apply human rights to internal conflicts, as the European Court has done in Chechnya. Article 2 ECHR specifically refers to taking of life for the purpose of quelling a riot or insurrection – but the taking of life must be shown to be necessary. Perhaps you might think this to be utopian, but this is what the treaty says. Who are we to doubt the wisdom of the states parties?

  10. John C. Dehn

    Marko,

    I admit that my comments were more broadly directed not only to your main post, but also to the string of comments. Regarding self defense against a non-state actor, I agree that the concept does not preclude the wrongfulness of the violation of a terrorist group’s host state’s territorial integrity. I do feel that necessity and/or responsibility coupled with a countermeasure might, as those concepts are discussed in the Draft Responsibility of States for Internationally Wrongful Acts. I mentioned this in earlier discussions here.

    (1) Regarding your comment that the “practice of states in interpreting a treaty is of course a relevant consideration in treaty interpretation, but one most certainly does NOT need to establish state practice and opinio juris in order to reach a conclusion on treaty interpretation.” My point is that state practice is necessarily relevant to understanding the relationship between both conventional and customary IHL and IHRL, and that we academics (and courts) too often make legalistic arguments without regard to it. The range of potentially applicable treaties and customs here are quite broad. See also comment (4) below.

    (2) Regarding your statement that “lex specialis…is precisely an academic or judicial construct,” this is to my mind mistaken. Commentators have long mentioned a concept of lex specialis with regard to IHL. Writing in 1863, Halleck stated that ONLY IHL governs the “belligerent intercourse” of opposing forces in an armed conflict. Lieber said the civil law is suspended between armed forces in the field.

    These commentators were attempting to theoretically describe state practice with regard to war, both international and non-international/civil. One must never forget that modern IHL consists of customary and conventional CONSTRAINTS on armed conflict that were once almost fully, as a legal matter, unrestrained. Given this fact, it is the extent to which states understand customary and/or conventional IHRL to further constrain their conduct in either international or non-international armed conflict that matters. That relationship is rarely clear based solely on the text of treaties, perhaps other than the ECHR in some circumstances, making state practice and opinio juris quite important outside of Europe.

    (3) I further disagree that the jus in bello is irrelevant to self defense. Should a state resort to armed force in response to an armed attack, the jus ad bellum regulates the resort to force, and the jus in bello of IHL governs use of force in the resulting armed conflict. I do not think there is any question regarding this in a Common Article 2 international armed conflict, nor should we doubt it in principle when discussing “armed conflict not of an international character.”

    The question in the first instance is whether IHL applies at all. When there is an armed conflict, it does, and it regulates all hostilities and attacks. The conflict begins with the first armed attack. A full scale invasion is not required to sustain or establish it. You question whether IHL’s targeting rules “displace IHRL” (again, this would be a matter of state practice unless expressly covered in an applicable treaty) and I don’t in principle (but particulars are sticky).

    What IHL purposefully permits and prohibits makes no sense with IHRL superimposed on it. It is theoretically problematic to say that because an armed conflict does not yet exist in the area of the counter-attack, IHL does not apply. By that logic, it would seem that the state that initiates or responds to even an international armed attack within an armed but, for-the-moment peaceful geographic region always violates IHRL until the armed conflict threshold is reached and sustained. If IHRL necessarily applies concurrently with IHL, Art. 75 of the first Geneva protocol and Art. 6 of the second are largely superfluous.

    (4) I again caution that whatever the ECtHR says about the relationship of the ECHR to IHL in places where the ECHR applies, the U.S. is not a party to the ECHR and neither is Pakistan (nor any other state where drone attacks are taking place). We are therefore talking about other IHRL conventions or customary laws that are of less certain relevance. When you resort to the ECHR for a rule (as you did in your main post and your comment above) when discussing the U.S. and other states not party to it, you necessarily imply that its rule applies as or reflects custom. It is not solely a matter of treaty interpretation, as you claim, unless a state is party to the ECHR and the ECHR clearly applies under the circumstances.

    By way of example, you cite Art. 2 of the ECHR immediately above for a certain principle, but it does not necessarily reflect the historical view of the U.S. (though admittedly that view is not entirely clear) or non-European countries. At what point does a riot or insurrection become internal “armed conflict” under the ECHR? What is the legal consequence or effect of that with regard to the application of IHL?

    It is possible to view the second Geneva protocol triggering provisions as establishing the threshold at which IHL displaces IHRL in internal armed conflict (for non ECHR members). It is also possible to view it as the point at which the rules it contains merely supplement those in Common Article 3 and any otherwise applicable customary law (as a matter of conventional law for its states party) or as reflecting additional customs that apply at that threshold to states not party. Each state might view it differently. The ECHR may or may not reflect universal custom on the point. At any rate, I repeat that Art. 6 and most other provisions would be a largely superfluous supplement to IHRL if one believes it necessarily applies.

  11. Regarding the so-called lex specialis override or displacement of human rights law, from a footnote in my article on ssrn:
    The customary and treaty-based human rights prohibitions of torture and cruel, inhuman, or degrading treatment of any detained person (see, e.g., ICCPR, supra note 60, art. 7) are matched by customary and treaty-based laws of war that apply to any detainee of any status during any armed conflict, and both sets of prohibition and right are absolute and, therefore, apply without any exception based on alleged necessity. See, e.g., Paust, supra note 64, at 2-5. Therefore, application of such forms of human rights during war will not inhibit lawful military conduct during war concerning the treatment of detainees. In fact, I know of no relevant human right that would needlessly inhibit lawful conduct on the battlefield. Some claim that the laws of war are a superior lex specialis, but such Latinized nonsense is intellectually bankrupt and unacceptable. Some human rights are peremptory norms jus cogens – that is, they are superior and trump any inconsistent international law in any circumstance, including inconsistent laws of war. See generally Paust, Van Dyke & Malone, supra note 5, at 61-64; Paust, supra note 64, at 4, 35, 37, 69. Furthermore, some human rights are nonderogable – that is, they cannot be derogated from even in time of war or because of an alleged necessity. See, e.g., ICCPR, supra note 60, art. 4(2). Moreover, the phrase lex specialis has been made up and favored by a few textwriters and jurists who do not seem to understand that norms jus cogens have primacy, not every type of law of war. Additionally, the phrase lex specialis appears in no known international agreement. It is nonsense to claim that every law of war will prevail over every relevant human right in time of armed conflict. Additionally, human rights obligations are universal and apply in all social contexts under the United Nations Charter, and Article 103 of the Charter guarantees their primacy over inconsistent law of war treaties. See supra notes 64, 74. In any event, as this article notes, the United States has nothing to fear from application of relevant human rights law and U.S. military lawyers should be trained in relevant human rights law as well as in the laws of war.

  12. John C. Dehn

    Jordan,

    Nobody here has argued that human rights norms preserved by BOTH IHL and IHRL do not apply in armed conflict or are subject to a necessity override. Further, nobody has argued that jus cogens norms, such as the prohibitions of genocide or torture, do not apply in armed conflict or are subject to a necessity override. Your comments in this area are unnecessary.

    As my earlier posts should have made clear, I do not argue that the IHL entirely precludes the application of IHRL. However, it would seem to preclude the application of it as between enemy combatants, at a minimum, and with regard to other IHRL norms that are inconsistent with conduct permitted by IHL, such as a proportionate attack. This would also seem to be state practice.

    To say that some human rights norms are generally nonderogable jus cogens or that some are nonderogable in war is NOT to say that NONE are nonderogable. War permits the destruction of life and property otherwise abhorrent to civilized society. Some norms applicable in peace are simply not applicable in war.

    As was implicit in my earlier posts, the deprivation of the fundamental right to life of enemy belligerents/combatants/fighters is a common feature of war. Outside of the context of an armed conflict, widespread and systemic mass murder of individuals is a crime against humanity. Within armed conflict, it is permitted between enemy combatants not hors de combat. Thus, I do not understand your comment that “I know of no relevant human right that would needlessly inhibit lawful conduct on the battlefield”.

    When the U.S. engages in a drone attack, the context of my earlier comments, it believes the target to be an enemy combatant/fighter in armed conflict. IHL provides protections to the individuals targeted. For example, they cannot be subjected to unnecessary suffering, to the use of poison, or perfidiously attacked, etc. The application of ALL IHRL to the targeted individual combatant in this context is problematic.

    Marko has argued applying IHRL is proper (for various reasons) and requires that there be a demonstrable, imperative necessity to the attack against them. I do not believe that view to be consistent with common understandings of armed conflict and IHL with regard to either international or non-international armed conflict.

    The real challenge is in understanding the geographic applicability of IHL, particularly in non-international armed conflict. This is what many scholars argue, that IHL does not apply in Pakistan or Somalia or anyplace not at the (internal) armed conflict threshold. At least as to attacks on combatants and civilians taking a direct part in hostilities, as well as to proportionate civilian deaths incident to those attacks, I disagree with that view. However, detention and prosecution of civilians not taking a direct part in hostilities is different. One must understand the history of the development of civilian protections in war to understand why this is the case.

  13. This is fun, but you should really read my article at
    http://ssrn.com/abstract=1520717
    There, you would see that I was responding to several points about the applicability of the human right to freedom from “arbitrary” deprivation of life — such as (it was the Obama Admin. that I was really responding to — and any notion of lex specialis “deprivation” or override) the Obama Admin. was wrong to claim before the Human Rights Council that human rights law does not apply during war.in a war zone. Another point made there is that although human rights law does apply at such a place and time, the right to life is not violated (there is not a legal “deprivation” of it either) when, for example, the person targeted in Pakistan by a drone is not in the actual power or effective control of the U.S. (see, e.g., ICCPR, art. 2(1) as supplemented by H.R. Comm. gen. comms.) and that, in any event, even if the particular person was covered, the targeting would not be “arbitrary” if it was reasonably necessary and proportionate (under the self-defense requirements and/or law of war requirements). IHL does not “preclude the application of IHRL” (my point), but h.r. to life of particular persons are not a problem if they are not in the actual power or effective control of the targeting state and, also, if the targeting is not “arbitrary” — not a necessity standard under non-European human rights law (and Art. 15(2) of the Eur. Conv. even contains an exception to this re: lawful acts of war). Thanks

  14. Federico

    To professor Paust,
    Your article is an outstanding piece, rich in information and quite clear. However, I would challenge the idea of a de facto theatre of war in Pakistan, pointing out that terrorists who attacked NY and Washington DC, during the planning the attacks, were in Hamburg. Would had been legitimate for the US to attack them without the consent of Federal government, killing several bystanders who were passing in the neighborhood of the target?

  15. Thank you. Whether there is a de facto theatre of war in parts of Pakistan depends upon facts such as use of those areas to plan, order, and stage attacks. I think that Professor Nanda (quoted in my article for this point) is correct. Regarding Hamburg, the leader who planned and ordered the 9/11 attacks of al Qaeda was in Afghanistan. What if a U.S. aircraft carrier was being hit by rockets coming from a pinpointed area near Hamburg and while the rockets were raining down the U.S. aircraft carrier launched aircraft or a drone to use pinpoint force to stop the attacks while notifying Germany exactly what the U.S. was doing? Should the aircraft carrier commander wait for Germany to neutralize the target and keep suffering deaths and destruction from the ongoing rocket attacks? Of course, it is likely that Germany would respond relatively quickly, but soon enough? There might already be in place a NATO plan of action for such attacks, which could involve consent in advance and a quick coordinated response. If not, should there be one?

  16. […] it on Volokh and Opinio Juris (and the very serious international law scholar Marko Milanovic has gravely disputed the self-defense argument at EJILTalk! blog).  Given the complete acceptance among the three branches of government that the […]

  17. Marie

    Marko,

    You say that whether an exercise of self-defence is lawful will depend on whether the relevant rules of IHL or IHRL are complied with. It is my understanding that in the context of an armed conflict, IHL and IHRL will apply, the latter to the extent that it is not inconsistent with IHL. My question therefore is why would a state even be invoking self-defence as a matter of jus ad bellum if they were in an armed conflict? Wouldn’t the invocation of self-defence as an exception to the prohibition on the use of inter-state force only be relevant outside of an armed conflict?

  18. Marko Milanovic Marko Milanovic

    Marie,

    It is necessary to venture into the jus ad bellum issue of self-defense (or UNSC authorization) if the state concerned wishes to use force outside its territory, as this is the only way of justifying what would otherwise be a violation of another state’s sovereignty. Let’s assume that the US legal argument that it is in a state of armed conflict with Al Qaeda is correct; imagine that Osama bin Laden is located somewhere in Germany. The US can’t just send a Predator drone after him; it either needs Germany’s consent, or it needs to prove that it has the right to use force under the jus ad bellum (e.g. that it is doing so to prevent an imminent armed attack). If these conditions are not met, the drone attack could be lawful under IHL and IHRL, but unlawful under the jus ad bellum.

  19. The “answers” are in my prior article, now with actual page #s, and in a new article for Denver, posted at http://ssrn.com/abstract=1707688
    The main article is at http://ssrn.com/abstract=1520717
    General human rights law applies in general, but the person who might benefit under ICCPR art. 6 must be within the “jurisdiciton” or “effective control” of the U.S., which is not the case with respect to drone targetings from high elevations. The self-defense paradigm is different from a mere law of war or law enforcement paradigm, and nothing requires foreign state consent or attribution if the state using responsive force in self-defense under art. 51 of the Charter is responding merely to continual non-state actor attacks. Yes, the theatre of war has expanded from Afghanistan into parts of Pakistan, so the laws of war applicable to an international armed conflict also apply. Moreover, there has been al Qaeda and Taliban breaches of the neutrality of Pakistan, which supplements permissibility of the targeting of those who are in Pakistan as combatants, DPAA, DPH, or those with a continual combat function. See articles. thanks.