Marko Milanovic on Self-Defense

OJ’s good friend Marko Milanovic has offered a super-substantive response to my brief comments re self-defense in my not-yet-response to Professor Alston’s report on targeted killing and drones.  I will have things to say about that and also my reactions to the interior of the Special Rapporteur’s report – happy to say that I avoided any $100 a day fines by completing the grading, but now face threats to my family from my editors, who have given me a drop-dead date for my US-UN relations book, which, by the way, has turned out to be an Essay in Grand Neoconservativism Redux, but that another time …  I strongly encourage anyone following the targeted killing, drone warfare, self-defense and armed conflict debate to go over to EJILTalk and read Marko’s essay.  I put a little bit below.

However, much more important, we at OJ want to congratulate the University of Nottingham Law School on its shrewd judgment in extending Marko a lectureship there.  That is wonderful news, and our congratulations to Marko as well as his new faculty of law.  Okay, from Marko’s essay:

Four basic scenarios

I’d first like to set out four basic factual scenarios, so that we could get a bit away from the heady heights of abstraction, and thus hopefully facilitate mutual understanding. First, for our present purposes, we need to get IHL out of the picture. In other words, we need to envisage the killing of a suspected terrorist that takes place outside any armed conflict. With that out of the way, the other important contextual element is where the killing takes place, i.e. whether the person being killed was located within or outside the territory of the state which is doing the killing. So:

(1) Imagine an Osama Bin Laden clone, who is equally nefarious, but who had nothing to do with 9/11 and is in no way affiliated with Al Qaeda. Let’s call him Mephistopheles. Old Mephisto has his own terrorist cabal somewhere in Pakistan, and plans an imminent attack on a US city, say with a dirty bomb or something equally horrific. Pakistan’s military is either unwilling or unable to prevent Mephisto from completing the attack, and therefore the US sends a drone which manages to take him out.

(2) For our second scenario, let’s take all of the facts from the first, but with one important difference: while in the first scenario Pakistan does not want to, or cannot prevent Mephisto from conducting his attack, in this scenario Pakistan gives its consent to the US to do its drone strike.

(3) In our third scenario, Mephisto has really outdone himself. Not only is he the mastermind of his own terrorist organization, but he actually operates from a volcanic rock in the middle of the Pacific, a terra nullius which no state claims as its own, and from ships which deliberately do not fly the flag of any state. The US military’s drones still find these ships to be easy targets, and Mephisto’s island base fares no better.

(4) In our fourth and final scenario, Mephisto is a Pakistani national, but he is actually living in the United States, where he has completed doctoral studies in nuclear physics, engineering, or what have you with flying colors, and has maybe even obtained US citizenship. He somehow manages to build a dirty bomb, and decides to put it in a car and drive it all the way to Times Square in New York City, where he intends to detonate it. Fortunately, the US military in Pakistan is informed by Pakistani security services of Mephisto’s plan, and the President authorizes a drone attack (or, perhaps slightly more plausibly, a mere sniper) to take out Mephisto while he’s driving on the New Jersey Turnpike.

All four scenarios involve targeted killings. The first scenario is one of extraterritorial killing, and the territorial state (Pakistan) has not consented to the use of force within its boundaries. The second scenario is also extraterritorial, but the territorial state has in fact consented. The third scenario is likewise extraterritorial, but the killing does not take place on the territory of any state. Finally, the fourth scenario is intraterritorial.

So, what does international law have to say about these scenarios of targeted killing, again all of which take place outside armed conflict?

I have to tell everyone, this is a great essay-post.  I have read it twice now, and have printed it out to read again.  If you are following this discussion, you really need to read this.  I am forwarding it, for example, to lawyer friends in DOS, DOD, DNI, Hoover, Brookings, and the CIA.  But I won’t try to respond to any of this until I get my UN manuscript turned in, however, and finish seriously reading and marking up Philip Alston’s report.

(One other thought – the Goettingen Journal of International Law, an online student edited journal in English for which I’ve written in the past, and had a great experience with its editors, has dropped me a note inquiring about the idea of a special issue or part-issue on drones and targeted killing.  Basically asking for advice.  My sense is that as a purely general topic, it has been done – or by the time a symposium issue could be pulled together – to death and beyond.  So the question is, if you were offering advice to the editors on how to focus a little writing symposium on this topic, how would you do it?  If you have thoughts, on that or, of course, any of the rest of this, please feel free to put them in the comments, and I’m sure the GoJIL editors would appreciate them.)