A couple of people have suggested to me that I should be celebrating Obama’s adoption of the “near certainty” standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:

The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.

If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

Note: I have restructured the post for clarity.

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still, he undoubtedly helped himself with Congress and the public in defending his use-of-force policies, and the debate moving forward will be, at the least, somewhat better informed. Second, big picture strategy. Obama urged the need for a comprehensive counter-terrorism strategy going forward, returning repeatedly to the idea that the U.S. war with “Al Qaeda, the Taliban, and associated forces” must end. Some examples from the speech strung together:

“From the Civil War, to our struggle against fascism, and through the long, twilight struggle of the Cold War, battlefields have changed, and technology has evolved. But our commitment to Constitutional principles has weathered every war, and every war has come to an end…. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” …. [T]he use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways…. All these issues remind us that the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing….”

This view is important, strategically sound (the world can make terrorists faster than America can kill them), and consistent with U.S. and international law understandings that there is and should be a legal dividing line between law at war, and law at peace. It signals the recognition of an end game, of the need to address terrorism not as a war-emergency but as a chronic disease, potentially fatal if not managed appropriately. Especially critical among the statements of strategy in light of the series of recent hearings in Congress on the need for a revised AUMF was the President’s announced refusal to expand it:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

The speech leaves unclear who, other than AQAP, the Administration thinks counts as an “associated force” of Al Qaeda, so it is likewise unclear how much it matters the President’s commitment not to expand the authority further. By including AQAP under the AUMF blanket, the administration already reads its AUMF use of force authority to extend to a group that did not exist in 2001 and that itself played no role in the attacks of 9/11. Nonetheless, it was somewhat reassuring to hear the President reject an interpretation of the law that would have it extend automatically to any group calling itself Al Qaeda. And his commitment not to sign an expanded AUMF suggests he will not be proceeding simply by adding the names of new terrorist groups to the list the AUMF already covers (namely Al Qaeda, the Taliban and “associated forces”), or by removing the statutory link to the attacks of 9/11 the AUMF currently requires, or by delinking AUMF authority from the requirement (recognized by the Supreme Court) that the statute be informed by the international law of armed conflict. And in principle at least, as the President implicitly recognized, the end of the AUMF war brings legal consequences. As he put it, “we bring law of war detention to an end.”

In the meantime, even in the President’s terms, there is at the very least more than a year between now and anything like the beginning of an end (when combat troops leave Afghanistan). Look forward to a summer of ongoing conversations with Congress and the public about who we can target under the AUMF, and what process they’re due.

Another must-read today from the White House, a one-pager titled “Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” Here’s the link.

From the introduction:

[T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable. This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time. As Administration officials have stated publicly on numerous occasions, we are continually working to refine, clarify, and strengthen our standards and processes for using force to keep the nation safe from the terrorist threat.

On very quick read, here’s the part I think matters most:

[L]ethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force… Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force. Third, the following criteria must be met before lethal action may be taken:
1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants[1] will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

An hour long as delivered, and full of substantive content. Transcript is here.

I want to call readers’ attention to a new — and very original — article written by one of my best Melbourne students, Ilana Singer, which has just been published in Criminal Law Forum. Here is the abstract of the article, which is rather wordily entitled “Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution to International Criminal Law Jurisprudence and Customary International Law”:

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.

The article makes an important contribution to the regrettably scarce literature on the Kapo trials. Anyone interested in the Holocaust, the trials themselves, or war-crimes trials in general should check it out. The final draft of the article is available on SSRN here, and the article itself is available here.

• Ahead of Barack Obama’s speech on national security today, in a letter to Senator Patrick Leahy, US Attorney General Eric Holder admitted that the United States has killed four American citizens with drone strikes in Yemen and Pakistan.
• The British House of Commons has passed legislation for same-sex marriage; now the bill goes to the House of Lords for a vote.
• The UN and World Bank chiefs are visiting the Democratic Republic of Congo in a push for peace and development amid fighting in the country’s east causing many to flee.
• A British soldier was hacked to death with a meat cleaver by two men in London in an apparent Islamist terrorist attack, stating that the soldier’s death was “an eye for an eye, a tooth for a tooth.”
• IMF Chief Christine Lagarde is in court in France today to be questioned about a €285 million ($366 million) arbitration payout to a supporter of Nicolas Sarkozy.

Noticing President Obama’s big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, “The Case for Drones.”  It will appear in the print journal in June, but has been posted with a free, open link on the website now.

A couple of caveats for OJ readers, if you’re inclined to read it (close relatives of mine have declined on grounds they’ve heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind – conservative readers and Republican members of Congress in particular.  It’s an argument about effectiveness and ethics, not law as such; it’s an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate. (more…)

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

• Top officials from India and China met in New Delhi in an effort to ease tensions between the two countries, while a “special envoy” from North Korea visited Beijing in an effort to reinstate some diplomatic ties between the two nations.
• In related news, Japan has been considering restarting diplomatic talks with Pyongyang, with a focus on the abduction of Japanese citizens and other issues.
• According to defense and prosecution lawyers, the trial of former Guatemalan dictator Efrain Rios Montt has likely collapsed after the country’s top court struck down his conviction for genocide. Jurist has more on the Court’s ruling.
• The UK has asked the European Union to place Hezbollah’s military arm on its terrorist group list, denying that this move has anything to do with Hezbollah’s involvement in the Syrian conflict.
• Foreign Policy investigates whether 3-D printing could be the answer to the world’s food shortages.

Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!