First off, some personal news – I am very happy to report that I will be taking up a lectureship at the University of Nottingham School of Law starting this September. It’s a truly excellent school, with some wonderful colleagues, and I do look forward to working there. Now, on to business:
The whole Gaza flotilla affair has occupied so much public attention and legal commentary that there has been little response so far to the publication of Prof. Philip Alston’s report to the Human Rights Council on targeted killings. The report is on any view a valuable contribution to the debate. Over at Opinio Juris, Ken Anderson has published a short ‘not-yet-response’ to the report, and I’d like to add a few thoughts of my own, mostly with regard to the relevance of self-defense.
The independent self-defense justification for targeted killings
As readers are aware, Ken has in the past argued for self-defense as an independent justification for (some) targeted killings. He has done so (and I am in full agreement with him on that point) because the justification offered by the Bush administration at the time, that it is engaged in some amorphous, global armed conflict with Al Qaeda and that it can kill combatants in that conflict, cannot justify the whole of the US targeted killings policy even if stretched to its utmost limit. In other words, even if we accept that there is such a thing as a global non-international armed conflict, the US has killed people, and thinks it needs to kill people, who have no connection whatsoever to that conflict. And there, says Ken, self-defense comes in.
Today, of course, Ken is not alone in so arguing – recently, at the last ASIL meeting, the legal adviser of the State Department, Prof. Harold Koh, has offered the same justification.
In a prior post, I argued that it is doubtful that self-defense can do all that Ken wants it to do. In particular, I argued that if the person being targeted has rights under human rights law, self-defense cannot preclude the wrongfulness of the killing. Rather, the killing would have to be justified within the human rights framework. If, on the other hand, human rights treaties did not apply, then there would be little need for self-defense.
Ken has responded to my critique by saying the following:
Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR. I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko. Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists. I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that. It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated. But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.
Now I’d like to offer a rejoinder – in part because of a real disagreement between us, and in part to clarify what I think is, or may be, a misunderstanding, either linguistic or semantic, or perhaps legal and conceptual.
(Warning! long post — but hopefully not a boring one!)
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