O’Connell on Defining “Hostilities”

by Roger Alford

My future Notre Dame colleague Mary Ellen O’Connell joins the fray criticizing Harold Koh’s crabbed definition of hostilities. Here’s a taste:

Harold Koh, legal adviser to the U.S. State Department, attempted to convince Congress on June 15 that the “limited nature” of U.S. military operations in Libya are not “hostilities” as envisioned in the War Powers Resolution, and, therefore, required no Congressional authorization.

But the U.S. had better be involved in hostilities or else our forces are engaged in unlawful killing. The U.S. has deployed manned and unmanned aircraft to fire missiles and drop bombs — the type of weapons only permissible for use in armed conflict hostilities.

Most U.S. attacks in Libya today reportedly are being carried out by unmanned Predators. President Obama’s report to Congress, also delivered on June 15, tries to minimize the meaning of using Predators. The report refers to “occasional strikes by unmanned Predator UAVs.” But armed Predators carry two Hellfire missiles.

Missiles and bombs are permissible for use in hostilities because the intensity of fighting supports a presumption that killing without warning or attempt to capture is justified. Moreover, during hostilities, the law tolerates the unintended deaths of civilians as long as the number of those deaths is not disproportionate to the value of the military objective.

I’m curious whether there are any international law scholars publicly defending the Obama Administration’s definition of “hostilities” for purposes of the War Powers Resolution. I haven’t seen any thus far, so any pointers would be much appreciated.


9 Responses

  1. Response…
    I have been making Mary Ellen’s point re: the “hostilities” claim for several days now here and elsewhere and, for one, have not heard of any international lawyer outside of L at State who accepts the main justification of the Obama Administration.  No wonder that Jurist has a story, from the NYT reporter, about a split between Harold and the White House counsel on the one hand and lawyers from DOJ and DOD on the other — although an OLC, DOJ memo dated April 1, 2011 (April fools’ day?) supports the Koh focus.  Again, the best argument would focus on WPR sections 2 and 8 and the President’s authority to faithfully execute treaties.

  2. This is somewhat out of my field, but I am curious as to whether the issue addressed by Harold, and critiqued by Mary Ellen, is really a question of international law.  Mary Ellen seems to conflate two different questions:  1) are we involved in Libya in an armed conflict within the meaning of international law (I would have thought the answer was yes), and 2) and, as a matter of US statutory interpretation, does US involvement rise to the level of “hostilities” within the meaning of the WPR? Harold was, I think, only answering the second, statutory interpretation question — what does the term “hostilities” mean in the WPR?  It is possible, of course, that the statutory definition is informed by the international law definition of the same term.  I see that Mary Ellen points to the ICRC’s definition of “hostilities” as being related to an armed conflict.  But this wouldn’t seem to me to rebut Harold’s argument, absent a showing that Congress in 1973 intended to codify the ICRC’s definition.  Does anyone know if such a showing is possible?  Did the definition exist at the time and was it available to/cited by Congress?  Mary Ellen’s post seems to suggest that Harold should interpret the statute consistent with the ICRC’s definition because the definition has been widely available on the ILA’s website since 2010 and has been cited by prominent (and I think she means contemporary) scholars.  But that seems to me to miss the point (or at least reflect an implicit theory of statutory interpretation unlikely to be followed by American courts).  What exactly is the argument that the WPR’s definition of hostilities should be interpreted consistent with the ICRC’s definition?

  3. Response…
    I agree that, technically, the ICRC definition is relevant to the issue under international law, but under relevant and venerable Supreme Court case law, the word “hostilities” has been interpreted with reference to and also implicity with attention to international law in a manner that stands in sharp contrast to Harold’s advice to the President and, moreover, under venerable Supreme Court case law federal legislation must be interpreted consistently with international law if at all possible.  The Charming Betsy (U.S. 1804).

  4. Again, this is not really my area, but I am not sure I see how interpreting “hostilities” as Harold did, or more generally interpreting “hostilities” to mean different things in the WPR and under international law, would run afoul of the Charming Betsy doctrine in this instance.  Charming Betsy says that an ambiguous statute should not be interpreted to violate international law.  Here, giving “hostilities” the statutory definition Harold did would not put the US in violation of its international obligations (as long as an armed conflict exists under international law), even though the definition might be different than an international definition.  The violation only emerges if you assume, as Mary Ellen seems to, that the statutory question and the international legal question have to be answered the same way.  But I have always understood Charming Betsy as a principle of avoidance, not a principle affirmatively mandating consistency for its own sake in the absence of Congressional intent.  Put differently, international law has little to say about the circumstances under which the President can commit troops to combat operations that are otherwise lawful under international law, and so I would have thought the Charming Betsy doctrine inapplicable (as there is no international legal obligation I can think of off the top of my head that the US would violate by allowing the President to continue US participation, without Congressional authorization after the expiration of a statutorily prescribed period of time, in coalition combat operations that otherwise qualify as an international armed conflict ).

    With respect to your first point, I am curious which Supreme Court cases interpret “hostilities” in the statutory sense with reference to an international legal understanding of that concept?  The context would have to be sufficiently similar to the WPR to permit a strong inference that Congress intended the same meaning, I would think, before we could say definitively that L and the White House Counsel had erred in their legal advice.

  5. Response…
    Charming Betsy actually states that leg. “ought never to be construed to violate the law of nations if any other possible construction remains” and this has been expanded in subsequent S.Ct. cases to require fed. leg. to be interpreted consistently with int’l law (whether or not it first appears to be “ambiguous” — despite some textwriters and a few lower court judges who miss this point).  Thus, int’l law is a necessary background for interp.  See also Restatement.  Congresspersons are presumed to know int’l law and to conform fed. leg. to int’l law unless (Cook rule) there is a clear and unequivocal congressional intent to override as domestic law.
    My other responses on Opinio Juris identified the cases — e.g., Bas v. Tingy; Talbot v. Seeman — which Congresspersons should also presumably have in mind.

  6. Has someone put together a logic  tree on this? The discourse seems confused. I start with the constitution and the “declare war” then move out to Congressional attempts to regulate/delegate that power. Hostilities would seem a second or third level consideration. And in war, as in poker, the cards “declare”  themselves according to the definitional understanding of the authors of the constitution as modified by, oh say, the real and evolving world. But I can easily be called naive.

  7. response to jordan

    ““ought never to be construed to violate the law of nations if any other possible construction remains” and this has been expanded in subsequent S.Ct. cases to require fed. leg. to be interpreted consistently with int’l law ”

    ok, but what is the problem with saying that there is no need for Congressional authorization.  even if there is no authorization why would that be inconsistent with international law?

    after reading the weird argument by oconnell, and your response im starting to give obama more credit.

  8. The reference to Charming Betsy is wide of the mark.  The The issue is whether a term of art, such as hostilities, which is undefined in the text of the statute carries its accepted meaning as a term of art.  The answer is yes. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.”  Morissette v. United States, 343 U.S. 246, 250 (1952).  The text of the WPR itself provides no indication that “hostilities” has a statutory meaning different than its meaning as a term of art, whether in the LOAC dating back to the Lieber Code or as used elsewhere in the US code. 

  9. As United States is never hostile and always friendly, I would call them friendlylities.

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