09 May Gang Warfare and Preemptive Self-Defense
A federal court in California rendered a decision last week that included one of the most unusual references to international law I have ever seen. In the case of United States v. Slocum, 2007 WL 1290249, prison gang members Ronald Slocum (a.k.a. “McKool”) and Henry Houston (a.k.a. “Tweek”) received a message written in invisible ink from gang leaders outside of prison informing them of a nationwide war between their gang, the Aryan Brotherhood (A.B.), and a rival gang, D.C. Blacks. The message ordered the inmates to attack D.C. gang members. McKool and Tweek promptly did so, killing several members of the rival gang. The evidence showed that the victims were unarmed and in non-aggressive postures at the time of the attacks.
At trial the defendants contended that a state of war existed between the two gangs at the time of the killings. Based on this contention, defendants assert that they killed the rival gang members in self-defense because they reasonably believed the D.C. Blacks would kill them had they not struck first.
But the court wasn’t buying it. The court stated that:
Defendants’ conduct can most generously be characterized as preventive self-defense, a concept that finds no support in state or federal law. Preventive self-defense is an offensive concept, properly understood to constitute aggression, and is, in fact, the opposite of defense. To endorse preventive self-defense in the prison context would be to transform correction institutions into combat zones, in which legal sanction is granted to inmates who would sooner kill a potential enemy than seek assistance from the prison administration. “Under the law of the jungle a good offense may be the best defense. But although prisons are nasty places, they are not jungles-and it is the law of the United States rather than Hobbes’ state of nature that regulates inmates’ conduct.”
Almost inexplicably, the court included a footnote stating, “[n]or is preventive self-defense permissible under international law. See International Military Tribunal (Nuremberg) Judgment and Sentences, Oct. 1, 1946, reprinted in 41 Am. J. Int’l L. 172, 205 (1947) (“ Preventive action in foreign territory is justified only in the case of an instant and overwhelming necessity for self-defense, leaving no choice of means and no moment for deliberation.” ) (internal quotation marks omitted).”
I suppose the court was thinking that if preemptive self-defense was a permissible exception under international law vis-à-vis state conflicts, then this defense might by invoked in the domestic context. Putting aside the absurdity of the court’s desire to distinguish or address international law in this context, the case actually offers an interesting heuristic. Why is it preposterous to raise an argument of preemptive self-defense in the context of gang warfare, but not in the context of international relations? The answer is fairly obvious, but it is a useful vehicle to articulate the differences between domestic and international enforcement against unlawful use of force.
Yes, it is absurd, but absurdity sometimes raises interesting questions. We debate what rules apply to armed conflicts between the U.S. and a non-state organization such as Al Qaida. Would any such rules apply to an armed conflict between two (or more) non-state organizations? Of course, nations are much more accountable than terrorist groups and criminal gangs, but in the search for a basis for prosecution, would grave breaches condoned and committed by an organization be available, or would one be limited to criminal law? What impact is there whether the conflict is cross-territorial or purely internal, and whether a nation is involved (for or against, directly or covert)? If a group has been placed on an official list of terrorist groups? If the group has publicly declared hostilities? With the existence of international gangs such as MS-13, and narco-funded terrorists in Columbia and Afghanistan, these absurdities may not soon go away.
The world has long dealt with piracy, does it need anything extra to deal with these groups?
Or Ulster Nationalists fighting PIRA, hopefully now history.
Interesting read. If neighboring States had an ongoing border dispute and the relations deteriorated into harsh verbal threats and then one state moved their armies next to the entire or most of the neighboring State’s border and began firing weapons in the air on their own side of the border(but toward the neighbor), what state would the the neighboring State be in? Wouldn’t this cause self defensive actions which would in turn become all out war? Could the IRA bring Great Briton into ICC under preemptive self defense? Wouldn’t such a legal interpretation wreak the havoc the judge stated would occur in the prisons across the US if the judgment brought by the AB was bought? I see why he mentioned IL, because there was no such preemptive self defense laws at the state or federal levels in US law. At the IL level something like this would mostly involved at least one State. States have more sovereignty than individuals. States are allowed to have secrets that the courts can not unveil if the State is not a defeated State from a war. I’m still perplexed as to how an individual can have preempted self defense when self defense is… Read more »
This is my first comment on Opiniojuris, my name is Artur, i’m a young law student from Brazil. That being said, please take into consideration that i’m just a reasonably interested student, so I might say a few absurdities once in a while. That ALSO being said, I would like to make two comments about this subject: At least in Brazil, this kind of individual preemptive self-defense is admissible, as long you’re able to prove that there was a real threat. Curiously, the criteria are pretty much the same as the ones used on IL: there must be no time for deliberation, the threat must be clear and dangerous, the means used for the preemptive self-defense must follow the principle of proportionality. For me, the craziest part of this post is the reality of a singular judge citing IL as a source of internal law. Assuming that this isn’t a one-hit wonder, one could ask himself: does this means that american judges are starting to be inspired by IL? Does this mean that IL can answer questions regarding human behavior that regular law cannot? Has the Bush’s preemptive attack doctrine gotten so strong in american legal culture that it’s starting… Read more »