A Question for Ken

by Kevin Jon Heller

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.

http://opiniojuris.org/2010/05/28/a-question-for-ken/

9 Responses

  1. Without speaking for Ken, I thought I’d note this recent argument by Delahunty and Yoo on the ICCPR and the Law of Armed Conflict, an essay that specifically responds to an earlier Alston report.  I think their basic take is that the ICCPR should not be read to apply to any situation involving armed conflict. I guess though, this simply begs the question: Is the targeted killing of an Al Qaeda or Taliban figure in Pakistan part of an armed conflict?

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1595148

  2. Julian,

    I think the better question is whether the targeted killing of a member of Al Qaeda in Yemen or Somalia is part of an armed conflict.  I am relatively sympathetic to Ken’s claim that a terrorist who is clearly involved in armed conflict in, say, Afghanistan is not outside of IHL when he decamps to somewhere beyond the zone of active conflict.  But that is a very different than the argument that IHL applies everywhere in the world that terrorism occurs, regardless of whether the targeted terrorist is part of the group that is actually involved in armed conflict with the US.  It’s Ken’s view of the latter issue in which I’m particularly interested.

  3. Besides, if IHL applies everywhere that terrorism occurs, the “self-defense” rationale is irrelevant…

  4. I agree that the use of the term “self-defence” is somewhat confusing, precisely because it is a jus ad bellum concept.  But I think it might be possible to construct a defence of drone killings outside the framework of armed conflict under human rights principles.  It is true that in normal conditions, human rights law requires that the state only deprive someone of life if it is strictly necessary to prevent an imminent attack on someone else.  But that standard is surely modified as the background situation progressively departs from normal peacetime/rule of law conditions.  In the face of a violent insurrection, it might not be a violation of the right to life to use force against someone participating in the insurrection, even if they weren’t threatening an innocent life at that moment.  This is explicitly spelled out in Article 2 (2) (c) of the European Convention on Human Rights:  “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary…. in action lawfully taken for the purpose of quelling a riot or insurrection.”

    I think that Harold Koh and Ken Anderson’s arguments are best interpreted as a claim that the security threat posed by al-Qaeda to the US and its citizens and the background of disorder and lawlessness where al-Qaeda agents are located justifies killing al-Qaeda operatives (or presumed al-Qaeda operatives) when that is strictly necessary for the purpose of neutralising or reducing the threat posed to Americans and no alternative means are available.  I’m not saying I agree with the argument in the particular drone attacks that the US has carried out, but I do think the argument is theoretically coherent.

  5. 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.

    First, there is no right to strike against “designated terrorists” under international law. There is a right to strike against any of the categories of enemy combatants who are subject to military targeting: members of the regular army of an enemy state, members of the armed forces of a non-state party engaged in continuous combat operations, and civilians directly participating in armed combat. Anyone not in one of these groups is protected and not subject to combat targeting, even in an armed conflict governed by IHL.

    Enemy combatants falling into any of these three categories may or may not resort to terror tactics, but that is legally meaningless to the question of whether they can be targeted. Thus using the term “terrorist” in this context is playing word games and trying to insinuate a host of false assumptions into your argument without admitting that you are using them, especially when you attribute the term to someone whose argument you are criticizing.

    There are a variety of states of hostility short of armed conflict. North Korea, for example, sinking a warship without actually starting a shooting war, or the attack on the USS Cole, or rockets fired out of Gaza. These “low level” conflicts may involve members of the regular armed forces of a state or aspiring state government, or armed units of a non-state party engaged in continuous combat operations (Hamas, Taliban, al Qaeda). However, just because the level of combat does not rise to the level of an armed conflict, this does not mean that IHL does not apply. I don’t see any lawyers lining up to march into North Korea and arrest the people responsible for sinking the ship.

    Self defense has traditionally been the justification for the use of armed force to respond to what are often long running cross border provocations and exchanges. These are military operations subject to military rules and IHL, not matters for human rights or criminal prosecution.

    Occasionally these operations involve charges of terrorism, as when Turkey moves forces across the border to attack PKK outposts. However, when Taliban forces moved across the border from Pakistan today to seize the area of Barg-e-Matal in Afghanistan, this was just a simple military attack that had nothing to do with terrorism. When the US responds with Predator strikes back across the border against the bases that spawned this attack, then whether this is justified by a formal armed conflict or principles of self-defense, it is still a military operation governed by IHL and not something where human rights law applies or where “designated terrorists” are the target.

  6. Howard,

    So answer the question — do you think IHL applies to a drone attack on a member of Al Qaeda who has never set foot in Afghanistan or Pakistan, in which case there is no “cross-border provocation”?

    As for your first example, it is most certainly international armed conflict when North Korea sinks a South Korean ship.  So IHL would apply.

  7. Oh, and by the way, it is not “word games” to use the word that the US uses to refer to its targets.

  8. First, there are no members of al Qaeda. There were soldiers in the Afghan army who were recruited, trained, and equipped by al Qaeda, but they were members of the Afghan army, not members of al Qaeda.

    IHL applies to members of any enemy military unit associated with the Afghan government in exile in the Tribal Areas of Pakistan or their allies. To be part of a military unit you have to join up and go through basic training at a camp in Pakistan or one of the camps they have set up in more remote locations like Yemen and Somalia. Then IHL only applies and you can only be targeted while you are engaged in continuous combat function (which does not mean actual combat but may involve preparation, training, or planning attacks). Someone who makes a clean break with continuous combat function by leaving the military unit to do fund-raising or public relations cannot be targeted while he has ceased combat functions, even if that break is temporary.

    Just because you are part of the Afghan army in exile does not require you to have ever set foot in Afghanistan. De Gaulle’s Free French spent most of WWII in Britain and during that period had very little to do with France. The AVG (better known as the Flying Tigers) assembled in China and fought the Japanese while the US was neutral. They were then integrated into the US Army Air Corps without ever returning to the US.

    The existence of a Taliban led army headquartered in Pakistan by the Afghan Government in Exile is not obviously different from the creation of the Polish First Independent Paratroop Brigade in Scotland by the Polish Government in exile after Poland fell to the Germans (and Soviets).

    Armed conflicts between nations are and always have been world wide. The CSS Alabama went around the world attacking Union shipping in every part of the globe, without ever laying anchor in a Southern port. If you adopt the view that the Confederacy was not a legitimate nation, then that too was an example of a non-international conflict with a non-state enemy that reached far beyond the active battlefields or “cross-border provocation.”

  9. We are not talking about “self defense” in the domestic criminal justice sense, but even in military law there are two levels of self defense. Strategic jus ad bellum self defense justifies the use of military force in a conflict that does not rise to the level of an armed conflict, like the exchange of fire across a DMZ. Tactical jus in bello self defense justifies the use of military force by a warship when an unidentified small boat is approaching and fails to stop when challenged. In force protection situations, one should make every effort to identify the target but it is not a war crime to defend yourself from an obvious threat even if it is subsequently determined that you used force against protected civilians.

    When President Clinton fired cruise missiles into Afghanistan in response to the attacks on the US Embassies in Africa, this was an example of strategic self defense because the US did not regard it as serious enough to trigger an armed conflict. Had drones been available at the time, he might have been able to order a more effectively targeted response. In this context, Ken’s self defense argument justifies the dispatch of the military force, but you still have to deal with Marko’s objection if the target of our attack were to be obviously civilian.

    Had there been a clear responsibility after the attack on the USS Cole, then Marko’s objection can be excluded by definition. Although still not rising to the level of an armed conflict, anyone involved in an attack on a US warship is, by definition, engaged in combat function and therefore a legitimate target for a military response.

    Predators can be used in tactical self defense, but the farther you get from an active battlefield or a US base, the more clearly you are dealing with a strategic situation where the use of force is only permitted against clearly identified military targets. If the use of force is permitted by armed conflict or strategic self defense, and once the target of that force has been reasonably determined to fit one of the enumerated IHL categories, then Marko is wrong and there is no human rights consideration during a legitimate military action.

    On the other hand, while tactical force protection self defense may mitigate target identification, Marko is right in that strategic self defense as a jus ad bellum has no effect on the IHL protection of civilians from targeting or the human rights protections. His analysis is only wrong because he fails to incorporate IHL military targeting criteria with its ability to completely override the civilian human rights criteria.

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