More Targeted Killing …

by Kenneth Anderson

Re the Volokh post to which Kevin refers below. Fear not, I was not trying to withhold content from OJ readers, but it did seem to me that I was days late in arriving at the issue that Ben and Kevin had already been discussing, whereas my VC post went into a lot of other stuff that didn’t strike me as relevant to OJ readers.  Although we are pretty eclectic in our tastes here, as my personal drone post shows, I’ve sometimes had email complaints from readers wondering what the connection to international law is re some post of mine.  Am I wrong about that among our readers?  But anyway, my fundamental motivation in posting it to VC and then linking back to the OJ discussion was blog-strategic – drive some traffic over to OJ from Volokh.  I’m not trying to deprive OJ or its readers of my ‘invaluable’ thoughts.

Very quickly as to substance in one matter of Kevin’s response.  Kevin says I’m offering a caricature of Nils’ view on territoriality and armed conflict.  Maybe.  But what Kevin calls caricature, I’d say is a reasonable statement in a couple of paragraphs on a blog of the center of Nils’, and the ICRC’s, views.  That’s not a criticism.  There is a lot to be said for the view that armed conflict has geographical limits on it.  The ICRC, if I may summarize, or caricature, as you will, reached this view on the perfectly sensible and understandable grounds of its alarm over the Bush administration’s Global War on Terror claims.  I think that the GWOT reached too far – as I have said many places, in my view – once again, a summary or caricature, as you will – what the Bush administration sought was the tail of law wagging the dog of war, the ability to use the law of war anywhere in the world with or without actual hostilities.

The ICRC unsurprisingly became alarmed at this, and has – including through Nils’ work – moved to a largely geographically based view of armed conflict.  I understand and sympathize with the reasons, in part because I share them and in part because even where I don’t share the final conclusion and come to a different view, I do try to start with a sympathetic view to the argument and understand it on its own terms.  The sympathetic read of that argument is that the Bush administration wanted a global war in order to invoke the law of armed conflict anywhere, at any time, but without any connection to actual hostilities.  As I say, I reach a different view – different from the GWOT view or Nils’ view, but I think I am starting from a position of seeking to understand it.  And for that matter, one of the reasons I think I understand it as a “large” view in the law of war is that some of the senior ICRC staff deliberately reached out to me for exactly the same reason – they heard what Koh was saying, what I was saying, what different people were saying, and they were admirably trying very hard to understand the positions and how they differed from their own.

Kevin cites to places in Targeted Killing in International Law in which the edges are mushed up, in which it is possible to attack beyond battlefields and theatres of conflict.  That’s interesting, but to my mind somewhat beside the main point.  The reason is that they are practical relaxations of a general view that armed conflict takes place within a space.  No, I don’t have time to walk back through them, but in any case, I do think that the place to focus is on the main, driving view underlying this, not bits and pieces that, while endorsing a generally geographic approach to armed conflict, create exceptions for this or that.  The reason that the idea of geographical limits is the place to focus is that there is much to recommend it, and responding to criticisms of it by coming up with ways in which it is not a geographically based view seems to me to deprive the position of precisely the things that are valuable in it.  There are many excellent reasons why Nils Melzer or the ICRC or others would want to defend this general view, in other words.  This is an eminently reasonable point of view – not the only reasoned or reasonable point of view one can take, and not finally mine (or Harold Koh’s), but an important view with many things to be said in favor of it.  I don’t think that it does that view any favors to turn around and cite the exceptions and then suggest that I’ve caricatured it – my criticism follows what I think is a recognition of the position’s considerable strengths.

Seeing the general view for what it generally is turns out to be important in part because the next large move in the debate comes from a somewhat different direction.  In response to the geographic view, whether in Nils’ work, or things said by the ICRC, or Mary Ellen’s writing, or elsewhere, the email from US military lawyers, past and present, is always pretty much the same:  we don’t endorse the GWOT, but certainly we do believe the “traditional” view that even if you don’t see the conflict as one that allows you to invoke the law of war anywhere, anytime in the world, still, the conflict goes where the participants go.  The ICRC has tried too hard to confine it by landing on territorial concepts, even though we understand the concern; we think that the better view is the “older” ICRC view, that the conflict went where the participants and the hostilities went.  The ICRC has reacted because what it saw as a protection – the law of war went where the hostilities went in order to protect people – appeared to have turned around to offer the Bush administration a sword, rather than seeing the law as a shield for non-participants – but it overreached in its attempt to confine it by territory rather than by the presence of actual hostilities.

Sometimes those emails say “combatants,” sometimes “participants.”   But again, I don’t think one gets much mileage in fairly and charitably assessing the overall debate by deciding to invoke specialist debates over DPH which, whether they finally gain traction or not, to say, ah ha, it’s only “indirect” or not a continuous combat function, etc.  Those distinctions are, in a certain way, too specialized and narrow and sometimes too new to be able to stand as counter-examples in what is a debate over a much larger picture of the laws of war and their reach.

More useful, in my view, would be to ask what a fair and charitable statement of the overall position is, and what value it seeks in a pragmatic way to validate, and start from there.  In that case, then, the overall point is that conflict goes where the fighters go, and is not geographically limited in that sense; any other rule would enable safe havens, among other things.  Maybe this is compatible with the idea that the law of war applies where there are hostilities underway; maybe not.  Maybe this is not finally different, once one tries to analyze it, from the GWOT view, but maybe one can see a difference in the emphasis on the presence of hostilities driving the application of the laws of war in a given place and moment, not a “prior” ability to set aside other law in favor of the laws of war just because there is a GWOT.

And I think you have to be willing to see those different “moves” in a legal policy debate over the right way to think about armed conflict and territoriality in order to see what the Obama administration thinks is important in asserting the self-defense view found in Koh’s speech.  Yes, of course, one might conclude that it is wrong or not the best approach, but it would be helpful to start from trying to appreciate the values it seeks to validate, trying to see what might be right about it, before turning the big guns on it and declaring what is wrong with it.  My own view is somewhere along these lines, and I’ve stated it before.  But my current writing about this is in a different vein – it is a step back to try and appreciate the values that the very different “moves” in this debate are about, the important values that motivate them; critique is crucial, of course, but it is merely writing lawyers’ briefs if it does not start from a position of taking the argument on its own terms.

There are other positions in this, as well – the Murphy-Radsan view on some form of review – an important addition to this that has not received the attention it merits.  For that matter, the concept of a global war on terror, as defended by former Bush administration officials, does indeed have important merits of its own.

Finally, though, one of the unsettled issues of blog etiquette is how to gracefully end a discussion and then let things go on from there.  So if Kevin would like the last word on this particular discussion of a perennial issue, he should feel free and not take it amiss if I don’t follow up in this particular iteration.

4 Responses

  1. Ken,

    Regarding blog etiquette.  I think you did it exactly right.  I’ve seen it done in short form too, as such: “I’m checking out/ending my comments now and look forward to reading your thoughts on the subject.”

  2. Terrible difficulties with TLA’s (Three Letter Acronyms).  No doubt due to my absence from the rarefied atmosphere of the exchange of e-mails clubs with ICRC and military types.  Might I ask what “DPH” – which has been bandied about recently here – stands for? I assume it is not related to BPH (Benign Prostate Hypoplasia).

  3. Direct Participation in Hostilities. Google the full phrase for the ICRC document defining the issues.

  4. Thanks brother – now comments make more sense.

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