Somalia and Self-Defense — “The Lawyers Always Ask For Details”

On Sunday, U.S. forces attacked what the Defense Department is characterizing as “’principal Al Qaeda leadership’ operating in the southern part of Somalia.” DOD’s information on the attack is pretty sketchy, but the official Defense Department news story indicates that the targets were “terrorists who may have struck the U.S. embassies in Kenya and Tanzania.” [Update: The New York Times is reporting the attacks may have killed Fazul Abdullah Mohammed, who orchestrated the 1998 East Africa Embassy bombings.] The State Department’s press briefing yesterday added few details, but I loved the comment by Department Spokesman Sean McCormak (at approx. the 2:26 mark) that he couldn’t answer whether any of the targeted terrorists, if captured, would qualify as enemy combatants because “the lawyers always ask for details” so that categorizations could not be made on the basis of mere hypotheticals. Meanwhile, new U.N. Secretary General Ban Ki-moon expressed concern over the humanitarian impact of the attacks “notwithstanding the motives.”

So, I’m a lawyer. And, Mr. McCormak is right – I want more details. What was the legal motivation for this use of force? As we all know, the U.N. Charter prohibits the use of force except where authorized under Chapter VII or where there is a case for exercising the inherent right of self-defense. As to Chapter VII, although the U.N. Security Council condemned the attacks on the embassies in Nariobi and Dar es Salaam in 1998, I don’t read it as an authorization for the use of force against those responsible. Operative paragraph 3 does call “upon all States and international institutions to cooperate with and provide support and assistance to the ongoing investigations in Kenya, Tanzania and the United States to apprehend the perpetrators of these cowardly criminal acts and to bring them swiftly to justice.” But I doubt that “justice” necessarily equates to gunship attacks. And, given that the U.S. explanation seems keyed to the 1998 attacks, I wonder whether that precludes the United States from relying on any later U.N. Security Council resolutions that might have broader language with respect to authorizing the use of force to combat terrorism.

And what of self-defense? Certainly, the United States can argue that it was the victim of an “armed attack” in 1998 and it has a legal right to respond against those who attacked it. After all, that’s the “classic” formulation of the doctrine. But, I wonder how well it holds up here, given that the U.S. response comes now more than eight years after the original attacks? Putting aside the issues of proportionality implicit in Secretary General Ban’s comments, the length of time between the attack and the response raises interesting questions about the notion of “immediacy” – i.e., how international law limits the time within which states may respond to armed attacks. Indeed, if eight years is O.K., as well it might be, where do we draw the line? Can a state wait 15 years to respond to an armed attack? What about 30 years? Don’t such delayed responses risk, as the New York Times today is indicating is the case in Somalia, the perception that the response was more about revenge than self-defense? And what of the idea that self-defensive actions must be necessary – doesn’t necessity get harder to claim the more time passes? More generally, might the doctrines of estoppel or laches kick in, given other states’ growing reliance interests that further uses of force are not forthcoming? Otherwise, doesn’t the international system risk great instability if a state knows it can bide its time and wait years, or even decades, for the right opportunity to respond to an armed attack against it?

Given such questions, I would not be surprised if the United States does not rely only on the classic formulation of the self-defense doctrine, but also justifies these attacks as an instance of preemptive self-defense. Indeed, my former boss Will Taft argued that, as much as one could see the U.S. intervention in Afghanistan as a reaction to an armed attack, it was also a case of preemptive self-defense given the imminent threat of harm from additional Al Qaeda attacks. Obviously, other states are much more skeptical about the availability of preemptive self-defense under the U.N. Charter. Still, you can see hints of such thinking in McCormack’s statements yesterday, when he talks about the fact that the terrorist targets had enjoyed something of a “safe haven” in Somalia and the U.S. attacks were designed to ensure that these people didn’t escape to set up a new base from which they could threaten U.S. interests again.

Now, let me be clear – I don’t mean to question the horror inflicted by Al Qaeda’s 1998 attacks or the United States’ right to bring those who perpetrated them to justice. Indeed, I was actually sent by the State Department to Kenya some weeks after the 1998 attacks. I’ll never forget standing among the ruins of what had been the U.S. embassy with bodies literally still sealed inside what remained of the structure. Nor, will I ever forget working with those who’d survived the attacks, still coming to work through Marine Corps pill boxes day after day, notwithstanding the tremendous losses they had suffered. So, I’m not questioning the United States’ moral or political reasons for responding. It’s just that as a lawyer, and as someone who saw what happened there, I want more details.