A Question for Ken
I do have a question for Ken. As his post indicates, he believes that the US’s right to “self-defense” justifies drone strikes against designated terrorists outside of armed conflict — strikes that are governed by human-rights law, not international humanitarian law. Indeed, he writes that “if one takes the US’s independent self-defense view, then curiously, the CIA is on firmest legal ground in precisely the situation in which the special rapporteur would say that its legal ground is the shakiest.” As I have pointed out before, Marko Milanovic has challenged — in my view, persuasively — the idea that the “self-defense” rationale justifies the killing, as opposed to the US’s violation of another state’s sovereignty. Here is Marko’s argument:
But then there is more fundamental problem: what is the actual wrongfulness that is being precluded with self-defense, and can self-defense even conceivably do it?
As I see it, when the US uses a predator drone in Pakistan to kill a terrorist, it thereby commits two distinct acts which can in principle be characterized as wrongful: it violates the sovereignty of Pakistan, and it violates the right to life of the person killed. It is the wrongfulness of the former only that can be precluded by an invocation of self-defense, just like Pakistan’s (or Yemen’s, or whoever’s) consent would preclude it. But, assuming the (extraterritorial) application of human rights treaties to a given situation, I don’t see how self-defense could be used to preclude the wrongfulness of an act contrary to the individual rights enshrined in such treaties. It is indisputable, for example, that self-defense as a matter of the jus ad bellum cannot preclude the wrongfulness of the violations of the jus in bello, i.e. IHL. How could it be any different when it comes to human rights? Indeed, the ILC explicitly says so in its commentaries on the articles on state responsibility, at 74.
Thus, I don’t see how Ken’s proposed solution can actually do all the work that it needs to do. It’s one thing to say that a state can’t complain about another state violating its sovereignty when it responds to an armed attack by a non-state actor which the former state did not prevent. It’s quite another to say that individuals somehow lose their equally inherent rights just because a state exercises its inherent right to self-defense.
What states wishing to use targeted killings can argue – and have argued – to avoid this problem is that human rights treaties don’t apply at all, for example because of extraterritoriality. These arguments are, in my view, entirely unprincipled and unpersuasive, but I won’t develop that here. Assuming that a human rights treaty does apply, self-defense just doesn’t cut it. On the other hand, if the human rights treaty doesn’t apply, then the invocation of self-defense becomes redundant.
I have never seen Ken respond to this argument. He is, I think, by far the most persuasive and fair conservative who write about these issues, so I am very curious to hear his response.