Elongated Imminence and Operational Realities

[Michael Lewis is a Professor at Ohio Northern University’s Petit College of Law and a former F-14 pilot for the US Navy.]

Peter Margulies’s recent posts here at Opinio Juris and over at Lawfare broadly covered the issues raised and discussed at the Boundaries of the Battlefield symposium recently hosted by the Asser Institute at the Hague.  I just wanted to briefly discuss two issues raised at the conference that may warrant further discussion.

The first involved complaints that the term “imminence” has been stretched beyond recognition by the Obama Administration.  Speeches by Brennan, Holder, Koh and others describing the legal justification for using force, particularly outside of traditionally recognized battlefields, have been careful to maintain two bases for doing so.  The first, which I personally favor and appears to be the primary justification for most US strikes, is based upon consent of the state in which the strikes take place.  The second is self-defense.  It is here where the “elongation” of imminence has occurred.  Brennan in particular has made it clear that the US will not pass up a window of opportunity to strike operational members of groups that are actively engaged in planning and executing attacks against Americans.  And he has acknowledged that this position requires a broader reading of the term “imminence” than is found in typical situations.  But is this truly unrecognizable “imminence”?

First of all it must be recognized that, like the term “proportionality”, “imminence” is an important term in two different areas of international law, and it carries different meanings in these different contexts.  Imminence is at the core of the jus ad bellum concept of self-defense based on its use in the Caroline standard.  Since the adoption of the UN Charter there has been debate about whether the “inherent right” of self-defense contained in Article 51 is broader or narrower than the Caroline standard.  While that question has not been definitively settled, it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 “imminence” is broader than Caroline “imminence”.  If for over 40 years most states believe that they are not required to “take the first punch”, how different is the imminence standard proposed by Brennan and others, particularly if the punch they are likely to take is directed at their civilian population?

A different version of imminence is also central to determining the threshold for lethal force in IHRL.  Law enforcement may only employ lethal force in response to an imminent threat of harm to others.  This version of imminence is generally regarded as being extremely narrow in terms of both time and space.  Classic uses of lethal force scenarios involve self-defense or defense of others by police against armed attackers that are actively threatening people.  Yet there are examples where even IHRL’s version of imminence becomes “elongated”.  Using lethal force in a hostage situation need not be based on the belief that the hostage taker will harm a hostage in seconds or even minutes if lethal force is not used, but may take into account the broader context of the standoff and the state of negotiations.  Even less imminent is the use of lethal force against a fleeing violent criminal (a mass murderer or serial rapist) who continues to flee and appears likely to escape if lethal force is not employed.  While such an incident would be investigated and questions about the basis for law enforcement’s identification of the target and the feasibility of capture would certainly be raised it is easy to imagine scenarios in which such a use of lethal force, even outside the context of an armed conflict under a strictly IHRL regime, would be considered justified.  The biggest difference between this standard and the one articulated by Brennan and others is probably in the transparency of the investigation rather than in the standards that are used to determine whether the use of lethal force was justified.  While the lack of transparency is certainly a concern, it is hard to describe this standard as being an unrecognizable extension of imminence.

The other discussion briefly explored at the symposium that I believe bears more consideration described the tradeoffs involved in dividing tasks for individuals, although interestingly it was discussed on two very different levels.

The primary discussion concerned the use of soldiers in multiple roles.  Many of the attendees opined that it would not be difficult for soldiers to be trained in both law enforcement methods and combat roles so that they could move seamlessly from one environment to the other in the legally fluid situations that characterize many modern conflicts.  After all, modern counterinsurgency doctrine requires them to be trained in how to interact with the civilian population in a positive way, why can they not also be trained to capture and not kill if the mission requires it, and to properly preserve the evidence and statements made at the scene of the capture?

The short answer is that they can be trained in this way, but it comes at a price, and potentially a very steep one.  True combat proficiency is only attained after a great deal of training and it is a very perishable skill.  In the same way that musical or athletic skills degrade without practice, so does combat proficiency.  No soldier wants to bet their lives on their combat proficiency when they have been unable to train for several weeks.  As I describe in more detail here based upon the US experience in Iraq, soldiers that have extensive experience collecting evidence and performing law enforcement functions tended not to be as effective in combat operations.  Conversely, those units that were more frequently involved in kinetic operations were generally not as good at collecting and preserving evidence.  It is important to recognize that demands for more diverse training and diverse roles for military units will come at a cost to their combat proficiency and this is not a cost that should be undertaken lightly.

However, soldiers were not the only ones being asked to handle more diverse responsibilities.  When Chris de Cock of the Belgian Ministry of Defense (who had served numerous tours in Afghanistan) expressed disappointment in the lack of operationally-ready guidance coming from the conference, he was told that there is a “gap” between theoreticians and more practical end-users of the material.  Moreover, some of the attendees made it clear that they had no intention of filling that gap.  I thought it was somewhat ironic that many of the same individuals who believed that soldiers should be trained to perform both law enforcement and combat tasks felt that it should be someone else’s responsibility to operationalize the theoretical laws of war that were being discussed.

While these are two very different roles for legal academics to play, there is tremendous value in having those that write in this area become more familiar with the operational realities of modern warfare.