Marko Milanovic on Self-Defense

by Kenneth Anderson

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.)

9 Responses

  1. Thanks! I plan to read Prof. Allston’s report this evening.
    I look forward to your book on US/UN relations Kenneth. All the best.

  2. Thanks Sameera, I fear it will still be full of misplaced commas and things I will likely regret having said, but oh well.

  3. Ken,

    Marko asserts that his conclusions are “black letter law.”  Do you even need to reply?  Obviously he is right and there is no debate to be had.

  4. Many thanks Ken.

    John, with all due respect, I think that your sarcasm is inappropriate. I at least have never resorted to such tone in an academic debate, and do not intend to start now. In any event, this comment certainly says more about your continuing credibility as an interlocutor than my own.

    And to clarify, the only conclusions that I said were ‘black letter law’ were that jus ad bellum considerations cannot influence the lawfulness of an act under the jus in bello, and further that the lawfulness of an act in the jus in bello does not automatically mean that it is lawful under the jus ad bellum. If there is any single point in all of international law that qualifies as black letter law, than this is the one.

  5. Marko,

    With all due respect, not that we should have this discussion in “public,” I have gently pointed out to you many times before that your tone is frequently less than respectful or accommodating of opposing views, particularly when you are convinced there is no other way to view an issue.  Mine was kind by comparison, meant to be amusing, and thought to be within my practice of searching intellectual debate and gentlemanly discourse.  My apologies if you were offended by this gentle jest.

    If your assertion of black letter law was limited to this very general point rather than its application in this context, then I certainly do not disagree with it.  Of course, we do disagree on the clarity of certain aspects of the jus ad bellum, or rather, the circumstances under which it is squarely implicated.  There is ample state practice to consider in this context as we have discussed here and at EJIL before.  That more specific point seems to be somewhat essential to Ken’s thesis, at least as I understand it in certain situations, and the one which I read you to implicitly state is black letter law in your recent EJIL essay.  For that reason, I anxiously await Ken’s response — and hope that he will also provide his views regarding the relevance of the imminence of a threat to his view of self-defense in this context.

  6. John,

    Again, with all due respect, your comment was anything but gentle or gentlemanly, and it was quite, quite public. I certainly do not pull back any punches in a debate, and can be very critical, but I am not aware that I have ever been disrespectful of the views of others, nor have I ever before been accused of the practice. But then again, maybe you simply have a different definition of what a respectful debate entails. And in that regard, I am most emphatically uninterested in apologies which are less than sincere.

    As for my to-you-apparently-offensive black letter law point (when, honestly, has saying that X is the correct legal position on Y been regarded as disrespectful of the view of thers!), now I truly have to wonder whether these discussions you and I have been having tend to degenerate simply because of a lack of adequate reading comprehension on your part, and/or the inadequacy of written English as a second language on my part. As far as I am able to tell from what I myself wrote, it is clear as day that my black letter law point was confined solely to the issue of separation between the jus ad bellum and jus in bello.

    Further, I have in my essay quite deliberately tried to avoid all the controversies surrounding the application of self-defense (such as the imminence of a threat, the attribution, or not, of an armed attack by a non-state actor, etc) by clearly postulating that self-defense applies in my first hypothetical scenario, and that its conditions are met. In other words, regardless of what is the correct legal position regarding the imminence of a threat, anticipatory self-defense and so forth, it is perfectly irrelevant for the basic argument that I was trying to make, and that is that self-defense is as such incapable of precluding the wrongfulness of violations of human rights law, if human rights law in fact applies.

  7. I think this question can be simplified by taking the issue of self-defense off the table. The Duchy of Grand Fenwick invades the US without any pretense of self-defense. It is an act of blatant aggression. OK, now lets take off the table all the accepted issues of state to state aggression, because IHL still governs the campaign (whether war crimes are committed) and human rights law either does or doesn’t apply (which is the actual question).

    IHL says that the armed forces of Grand Fenwick under Tully Bascombe can use lethal military force (crossbows) against the uniformed military of the US and against civilians who engage in combat against them. Force cannot be used against civilians who are not directly participating in combat.

    Marko states that there are two questions and that legality under IHL is distinct from the question of whether a killing is wrongful and prohibited by human rights law. That may be true for civilians, but I would counter that when a killing is permitted under IHL (when the targeted individual is one of the categories of enemy combatant against which lethal military force is permitted) that precludes any human rights violation because combatants are only protected by IHL.

    A widespread source of error derives from the assertion that a “terrorist” is involved. This is a meaningless pejorative that when used immediately triggers a group of unstated presumptions that poison any rational discussion. A terrorist who is an enemy combatant is no different from other soldiers until he is tried for his war crimes, while a terrorist who is a civilian is no different from other mass murdering criminals. However, if you start by calling someone a “terrorist” without qualification, then one group will simply assume he is a combatat while another group will assume he is a civilian criminal, and the two will argue forever without realizing or admitting that the core of their controversy is different unexpressed assumptions about what “terrorist” means.

    If you remove both national self-defense and “terrorist”, then some progress might be made. A uniformed enemy soldier is a legitimate target under IHL and his death in combat cannot be a violation of human rights law even if your country is engaged in naked aggression with no jus ad bellum. The intentional killing of civilians by the military is a violation of IHL (jus in bello) but, if it targets a specific known individual for motives unrelated to the armed conflict, may also be a violation of human rights (provided that international human rights obligations extend beyond the borders, which the Duchy of Grand Fenwick has never admitted).

    There may be a difference in the criteria that the Fourth Geneva Convention places on civilian trials by the military during occupation and the standards required to meet international human rights law. If there are substantive differences, and human rights law is more restrictive, then it might be possible that a trial violates human rights law without rising to the level of a violation of IHL. However, a targeted killing leaves less room for distinction. I suggest that such a killing can only violate human rights law after it is unambiguously established that it violates IHL. If it also occurs during a war of aggression, there are three distinct levels of wrongfulness that should not be confused.

  8. My dearly beloved commenters!  Thanks for all these – look, you guys are all experts, and yet for all our assembled expertise we will have many disagreements.  I’m not troubled by anyone’s tone in this discussion, but – well, do we have an expert view on dueling these days here at OJ?  (That was a little joke! as I often have to tell my students these days because my cultural references are all dated.  If you want to see real over-sensitivity, check out the comments to my gentle little post at VC about needing some Adderall to get my UN ms. done.  Oy vey.)

    By comparison to the rest of the political and even legal blogosphere, we’re pretty much a model of decorum.  I am not closely following comments at the moment, and am truly unable to even think about this until I get my UN manuscript turned in.  The discussion you all are having is very interesting and important to me, so please don’t take my silence as lack of interest – I’m just getting killed on something else.

    Please keep discussing this.  I am giving a couple of workshops in June on, well, everyone else’s views on targeted killing, rather than my own – trying to put them in some quasi-systematic typology, and this is a very helpful discussion to help me sort it out.

  9. Thanks Ken.  I think a mountain has been made of a molehill here.  There’s not much substantive disagreement being vetted, though it does exist.

    For the readers: To be clear, I did not take Marko’s essay to address imminence.  I do not recollect that Ken has discussed it much either.  I have asked Ken to address it before.  I am very interested on his view of its relevance.   I merely reiterated the request in my comment above.  That request had nothing to do with Marko’s lengthy EJIL essay.

    As for the rest of Marko’s comments, I feel compelled to say that I stand by what I said and by the appropriate sincerity of my apology.  I was not “offended” in the slightest by his “black letter” comment.  I do not take disagreements about the the law personally, and do my utmost to “pull punches” if ever tempted to throw them in even the most difficult of debates.  I believe I demonstrate that regularly here.  Civility and professional courtesy are amazingly simple concepts…readily translatable into any language.

    I am uncertain whether I have misread Marko or perhaps read his post with our prior debates in mind.  I have not gone back to read it again.  If I have somehow misread his lengthy essay, I happily stand corrected.

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