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Monday, April 23, 2012

Signature Strikes

From the Washington Post comes news that the United States is once again considering an expansion of so-called “signature” strikes in Yemen, which in the past have been strictly limited.  Signature strikes target groups of unknown individuals who have been identified, by surveillance, as militants or terrorists based on their activities or their location.  But these signature strikes do not target specific, named individuals, whose identity has been confirmed and vetted by the Executive Branch’s program on targeted killings.

The issue isn’t new and last year Charlie Savage published an article in the Times about a legal dispute within the administration over the signature strikes.  The Defense Department and CIA lawyers are in favor of authorizing them, while State Department lawyers have expressed grave concerns about them.

The legal issue stems, in part, from an uncertainty about how far we can extend the “armed conflict with al-Qaeda” as a legal rationale for engaging in these strikes.  The targets in Yemen are part of the AQAP (al Qaeda in the Arabian Peninsula) and in Somalia are part of al-Shabab, neither of which are al-Qaeda proper in the Afghanistan-Pakistan sense of the name.  Both of are best described as regional syndicates or affiliates of al Qaeda.

This is more than just a semantic issue.  The question is whether the United States is engaged in an armed conflict with these groups, especially since each has parochial and local concerns – i.e. a civil war in Yemen and Somalia respectively.  Both want to control their own territory and defeat a sitting government.

One legal solution (favored apparently by DoD and CIA) is to consider these groups as co-belligerents of al-Qaeda proper, thus making them subject to attack under the law of neutrality.  The law of neutrality says that a state can be subject to attack in an international armed conflict with they refuse to declare their neutrality; their silence can be taken as evidence of their co-belligerency with the enemy.  Did the United States ask, either formally or functionally, for a declaration of neutrality from these groups?

There is another related issue, which turns on an irony.  Some philosophers object to TKs because they pick up specific individuals, something that makes them seem more like assassinations.  Signature strikes move away from this model, in the sense that the drone operators have no idea who exactly these individuals are, except a vague determination that they are combatants or civilians exercising a “continuous combat function” – i.e. foot soldiers in an organized armed group.

This resolves one potential difficulty but causes another.  The targets are no longer named individuals; the attacks are no longer targeted, nor are they assassinations per se.  And so the due process problems would appear to be correspondingly less relevant to this situation.  We ordinarily do not couch the victims of large-scale strategic bombing campaigns as having a due process protection that has been violated.

The irony, of course, is that the government could avoid one element of the legal controversy surrounding TKs by deciding to kill more individuals (with greater uncertainty about the threat they pose) rather than less, or just one.  This would not seem to be what the critics had in mind.

All of this might be evidence that the “named” aspect of individual TKs, and the precision by which they are carried out, should not be considered a defect, but rather a virtue. 

Wednesday, April 18, 2012

Targeted Killings: Law and Morality in an Asymmetrical World

I am pleased to announce the publication of Targeted Killings: Law and Morality in an Asymmetrical World.  The book was co-edited by myself, Claire Finkelstein, and Andrew Altman, and was just published by Oxford University Press.  It is available from amazon, Barnes & Noble, or directly from OUP.

The impetus for the book was a desire to bring together scholars from international law, criminal law, legal and moral philosophy, military law, as well as scholars whose work extends across several of these disciplines.

The book is therefore one of the very first to look at TKs from a purely conceptual perspective, instead of simply rehashing the factual controversies involved in Predator drone attacks.  At issue in each of the essays is the fundamentally asymmetrical nature of the current TK strategy.  In other words, the use of force is deployed by states against non-state actors, thus leading to great uncertainty over whether the war or crime paradigm applies.  As I said during a recent panel discussion at ASIL on the topic, the lack of agreement on the lawfulness of TKs is no surprise when there isn’t even agreement on which body of law (or bodies of law, if one allows for co-application of IHL and IHRL) governs the matter.

In short, the issue of TKs implicates almost every contemporary debate in jus ad bellum and jus in bello, whether from a legal or philosophical perspective.  It also provides a good lens to continue the philosophical and legal debates about necessity, imminence, and self-defense that first emerged in the context of torture.

Stay tuned for an online symposium about the book at Opinio Juris later this spring. 

And in the more immediate future, there will be a book launch event at the University of Pennsylvania Law School on Monday, April 30 at 5:30pm, featuring a keynote address by Rear Admiral John Hutson, emeritus dean at the University of New Hampshire School of Law.

Here is the full table of contents of the volume:

  • Claire Finkelstein, Preface
  • Andrew Altman, Introduction
  • Mark “Max” Maxwell, Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?
  • Jens David Ohlin, Targeting Co-belligerents
  • Daniel Statman, Can Just War Theory Justify Targeted Killing? Three Possible Models
  • Jeremy Waldron, Justifying Targeted Killing With a Neutral Principle?
  • Jeff McMahan, Targeted Killing: Murder, Combat or Law Enforcement?
  • Claire Finkelstein, Targeted Killing as Preemptive Action
  • Richard V. Meyer, The Privilege of Belligerency and Formal Declarations of War
  • Craig Martin, Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime
  • Russell Christopher, Imminence in Justified Targeted Killing
  • Phil Montague, Defending Defensive Targeted Killings
  • Amos N. Guiora, The Importance of Criteria-Based Reasoning in Targeted Killing Decisions
  • Gregory S. McNeal, Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence
  • Kevin H. Govern, Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective?
  • Kenneth Anderson, Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy?
  • Fernando R. Tesón, Targeted Killing in War and Peace: A Philosophical Analysis
  • Michael S. Moore, Targeted Killings and the Morality of Hard Choices
  • Leo Katz, Targeted Killing and the Strategic Use of Self-Defense

Thursday, April 12, 2012

Individual vs. Collective Justice in Iran

Today’s New York Times contains an article detailing the plight of former hostages from the 1979 hostage crisis in Iran.  Although the hostages were held for 444, the United States promised in the Algiers Accords – which ended the crisis and allowed the hostages to come home – to bar the hostages from suing Iran in US federal courts.

The hostages have been fighting for compensation for many years.  Their treatment was no doubt brutal during the more than a year they spent in captivity, which included some time in solitary confinement and mock executions.  The unlawful deprivation of liberty alone ought to be the basis for a substantial compensation award.  The U.S. government gave them a paltry $50 per day, according to the article, but the government of Iran has never paid anything.

Although the hostages have received a sympathetic response in Congress, the State Department and the judiciary have been less sympathetic.  The latter two branches have consistently sought to uphold the Algiers Accords and note that the Executive Branch needs to occasionally bar compensation claims in federal court in order to pursue foreign relations with other states.  The Supreme Court in Dames & Moore v. Regan upheld the power of the President to do this. The desire for collective justice sometimes trumps the demands of individual justice -- a form of utilitarian balancing that would no doubt offend even the mildest of Kantians.

The hostages have a right to feel bitter about the resolution of the case imposed on them by the Algiers Accords.  American companies had their property and assets seized during the Iranian revolution, but the Algiers Accords did not prevent them from filing claims entirely, but rather transferred those claims to a newly created arbitration panel called the U.S. Iran Claims Tribunal, located in The Hague.  Incidentally, that tribunal is still hearing cases, making it one of the oldest ad hoc international tribunals in operation.

So although it seems pretty clear that the U.S. government had the right to interfere with these claims in order to end the crisis, the real problem here is the asymmetry between how corporate claims were treated under the Algiers Accords and how the hostage victims were treated.

All of this leads me to a question not addressed by the New York Times article.  The hostages are pursuing a case, seemingly against all odds, in U.S. courts, and the Supreme Court is currently deciding whether to grant cert in that class action case.  Smart money has it that they will decline cert, in my opinion.  But perhaps the correct result here isn’t a claim in U.S. courts, but rather a compensation claim to the U.S. Iran Claims Tribunal?

Unfortunately, the tribunal was only set up to hear property and contract claims, not human rights or personal injury claims.  But that’s precisely the problem here, and perhaps one that the Carter administration should have considered more carefully when finishing the Algiers Accords. 

Would it have been impossible to include some provision to provide for some compensation to the hostages through an alternative process?  Obviously, the Iranians would have objected to allowing the hostages to pursue their claims in U.S. courts.  But would the Iranians have refused to release the hostages simply because the new tribunal was given jurisdiction over personal injury claims in addition to contract disputes? I find that hard to believe, although maybe someone involved in the actual negotiations can enlighten me.   Was it really a deal breaker?

Monday, April 9, 2012

Ben Ferencz

I usually don’t engage in promotion for other people’s websites, but this one deserves mention.  Former Nuremberg Prosecutor Ben Ferencz has a personal website which is quite impressive.  Ferencz served as chief prosecutor for the United States in the famous Einsatzgruppen case, one of the 12 “subsequent” Nuremberg cases prosecuted by the Americans under the direction of General Telford Taylor.  Ferencz obtained convictions against all 22 Nazi defendants.

In recent years, Ferencz has focused his efforts on the criminalization of aggression.  At Nuremberg, aggression (or crimes against the peace) was described as the supreme international crime because it “contains within itself the accumulated evil of the whole.”  However, aggression was never prosecuted by an international tribunal again after Nuremberg.  Its exclusion from the Rome Statute of the ICC was a particularly frustrating development for Ferencz.

The adoption of the aggression amendments to the Rome Statute, negotiated in Kampala, Uganda, in 2010, represented a major vindication for Ben and his life’s work.  The crime of aggression will now be within the jurisdiction of the world’s first permanent international criminal court.  This achievement is at least partly a result of Ben’s tireless advocacy on the issue.

Ferencz was 27 at the time of the Einsatzgruppen trial; he is now 93 and still going strong.  He keeps up a vigorous schedule of conferences and lectures, and still publishes widely.  His website includes the text of his speeches, videos of public appearances, links to his scholarly publications, and much more. Just a few weeks ago he had a letter to the Wall Street Journal responding to negative comments that John Yoo made about the ICC.

I particularly recommend a video of Ferencz delivering remarks as part of the prosecution’s closing statements at the end of the recent Lubanga trial at the ICC -- the first trial to be completed by the new international court.  The video is from August 2011 and Ferencz places the crime of using child soldiers in its historical context and he explains the development of international criminal law.  No one else could have given that speech.

Wednesday, April 4, 2012

RTP and Reaping What You Sow

I was at ASIL in Washington DC this weekend, and there were some common refrains among the discussion.  As usual, the Responsibility to Protect came up in several sessions, in particular with regard to Libya and Syria and whether there was any tension between Western intervention in Libya and Western non-intervention in Syria, a point that was explicitly discussed by Harold Koh.  Several speakers openly debated whether RTP was an emerging legal rule (presumably of custom) or some kind of extra-legal principle.

Much of this represents the standard landscape of positions regarding RTP.  What was interesting, however, was the connection that people were drawing between RTP and outside intervention to attack a non-state terrorist organization operating from inside the territory of a sovereign state.  In the latter situation, there is an emerging (and controversial) doctrine that says that outside states can intervene into a sovereign territory to attack a terrorist organization if the host state is “unwilling or unable” to prevent its own territory from being used as a base of operations for terrorist activity.

Rosa Brooks (Georgetown) made this point explicitly.  Both situations can be linked by the notion of responsibility.  In the case of RTP, the responsibility is inward, in the sense that the state owes a responsibility to protect its own citizens from human rights abuses, and the failure of this responsibility triggers a forfeiture of the state-centric rights usually associated with sovereignty.  It is almost a collateral estoppel point.  If the state isn’t protecting its own citizens (or in fact is attacking them), it is in no position to object to the violation of sovereignty caused by outside intervention to protect the very citizens that it is failing to protect.

In the case of intervention against terrorists where the host state is “unwilling or unable” to stop them, the responsibility is outward, in the sense that the state owes a responsibility to the world community and must ensure that its territory is not used to destabilize international peace and threaten the security of other nations.  Again, in the vein of collateral estoppel, if the host state is unwilling or unable to stop the non-state actor, it forfeits the usual protections of sovereignty and can’t complain when the international community (or even just one state) violates that sovereignty in order to accomplish what the host state is unwilling or unable to do.

What Brooks was getting at is that these are two sides of the same coin.  RTP involves an inward looking responsibility that is enforced from the outside, and the “unwilling or unable” standard involves an outward looking responsibility that is also enforced from the outside.  And both, in a sense, involve some kind of protection.  For RTP the protection is owed to internal citizens, while for “unwilling and unable” situations, the protection is owed to external citizens who might be victimized by terrorism, or more generally the international community.

(By the way, I don’t think that Brooks was advocating for either of these positions, but rather was describing the conceptual and structural similarities between the arguments).

The point here is that one should not be surprised that RTP can be harnessed in this way.  Once you follow Louis Henkin and his famous command, first uttered as ASIL President in 1993, that we banish the S-word (sovereignty) from our discourse, then sovereignty is devalued in multiple contexts, not just in RTP for purely humanitarian actions.  Sovereignty is also then weakened for security interventions.

I would think that this linkage is not what at least some RTP advocates have in mind, particularly those in Europe who are rightly suspicious of Bush-era pronouncements of the American right to use military force in the War on Terror, even in the absence of Security Council authorizations.  But the two issues are conceptually linked, and it is a wonderful example of legal principles taking on a life of their own, and being used in novel and unusual ways that could not be initially predicted.  When you create a legal doctrine or a legal principle, you are giving birth to a new idea, not particular outcomes, and you may not like the outcomes that are generated once the new idea is applied to unforeseen contexts.  I wonder if some proponents of RTP may some day live to regret the very doctrine that they have been promoting so passionately.

I do wish that Louis Henkin were still alive to add his wise voice to these discussions.