O’Connell on Defining “Hostilities”
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.