A Quick Bleg on the US and Self-Defence

A Quick Bleg on the US and Self-Defence

A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors:

Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.

As the quote makes clear, the US believes that its position is consistent with international law. Yoram Dinstein takes a similar position in his seminal War, Aggression and Self-Defence, at least in the context of international armed conflict. So here are my questions:

[1] Does anyone know where the US might have defended/explained its position at more length, whether in a legal brief or elsewhere?

[2] Does anyone know of scholars other than Dinstein who take the position that once a state acts in self-defence, none of its (extraterritorial) acts in the resulting armed conflict are subject to the jus ad bellum?

Any suggestions or citations from readers would be most appreciated.

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Marty Lederman
Marty Lederman

I have to imagine what Brennan meant there was that once U.S. engagement in the armed conflict as a whole was justified by a self-defense rationale, the U.S. does not have to assess whether AQ is engaged in sustained efforts to strike the U.S. every time we use force against it–that fact can basically be assumed until there’s some evidence that AQ no longer has such designs. The fact of the armed conflict suffices as long as there’s sufficient duration/intensity/etc.

What I doubt Brennan meant was that all questions of ad bellum necessity and proportionality fall away once the armed conflict starts. I don’t recall what Dinstein says about this, but shouldn’t the proper analysis be that in order to extend the armed conflict into a new state that does not consent, the use of force in that nation must be necessary and proportional to the overall self-defense objective?

Andrew Garwood-Gowers
Andrew Garwood-Gowers

Dinstein seems to stretch the “ongoing armed conflict” argument even further than Brennan. He has used the technical state of war between Israel and Iraq/Syria to justify Israel’s 1981 attack on Iraq’s Osirak nuclear reactor and the 2007 attack on Syria’s Al-Kibar facility (see pp. 199-200 Dinstein’s 5th edition)

He does note that Israel itself characterised Osirak in terms of self-defence (jus ad bellum) but argues that “the legal justification of the act should have rested on the prolonged state of war which characterizes the relations between the two countries” (jus in bello)(p. 199).

Apart from Dinstein, though, I’m not aware of other authors who take this position.

Marty Lederman
Marty Lederman

Not sure I follow, Kevin. Why would it follow from the fact that the U.S. can presume the pre-condition or “trigger” for the right to act in self-defense (such as that AQ has engaged in armed attacks, continues to do so, and there’s an armed conflict), that all “ad bellum concerns fall away” — in particular, that the U.S. use of force in an unconsenting new nation would not have to be proportional and necessity to the self-defense objective? I suppose one answer is the one you attribute to Dinstein: that “all actions until victory is complete are presumed to be necessary and proportionate.” But if there is such a presumption, it must surely be a very weak one, isn’t it? What if, for example, State A has a self-defense justification to engage in an armed conflict with Nonstate Actor B (because B has engaged in, and continues to engage in, armed attacks), and certain members of B’s armed forces are found in State C — a state to which the conflict has not yet extended. Assume further that those B forces in State C aren’t doing *anything* with respect to State A — they’re engaged in other matters. Would… Read more »

Marty Lederman
Marty Lederman

More to to the point of your original question, I’m not aware of any statements by the U.S. that in such a case, where it extends force to a new nonconsenting state, it need not satisfy N&P requirements.

Marty Lederman
Marty Lederman

Again, Kevin, I simply don’t understand your final point. Even if the U.S. continues to presume that it has a continuing self-defense *justification* for using force against AQ — that AQ has engaged in armed attacks, and that there’s a resultant armed conflict ongoing — why would it presume that “all acts” in a particular country satisfy the *additional* requirements of N&P?

Marty Lederman
Marty Lederman

Presuming that there is a continuing *justification* for *some* use of force against AQ in self-defense, and for continuing the armed conflict with AQ, does *not* mean that the US “will never need to consider either the necessity or proportionality of any subsequent act of force.” I don’t think there’s any reason for one to assume that “the US simply presumes that all subsequent acts of force qualify as self-defence” — if by “qualify” you mean “satisfy *all* of the prerequisites for a claim of self-defense” that would preclude a 2(4) violation.

I agree that Brennan did not address this point — I’m not aware that any U.S. public statements have. But what would the possible theory be that any and every use of force is N&P, once the attacked state has the right to engage in *some* self-defensive action? I have a hard time believing even Dinstein takes such a view, but I have not gone back to review his book. (Where does he say that?)

Robert Clarke

I am not sure this is actually reflected in all US practice, if it really is the case that the President personally decides on every drone strike on a basis of whether or not capture is feasible. That would seem to involve repeating the necessity/proportionality enquiry for every attack, which is to say, much more often than states normally would during an armed conflict. Of course, during the same period the US has obviously been involved in other armed conflicts where attacks have been planned and directed by local military commanders rather than a supreme political authority.

Marty Lederman
Marty Lederman

Thanks, Kevin. In some broad sense, Dinstein is surely right: An ad bellum proportionality calculus need not be “constantly assessed throughout the hostilities in the course of war” — in particular, in a longterm campaign in a particular state (e.g., the U.S. in Afghanistan since 2001), surely proportionality comes into play in real time only in applying the in bello requirement at the outset. Likewise, as to the general question of whether force can be used against State C, or Nonstate Actor B, it’s my understanding that the proportionality question is asked at the outset, with an eye toward the campaign as a whole. The complication arises, however, when State A proposes to use force against Nonstate Actor B — with which it is already in an armed conflict — in a territory of a “new” nonconsenting state. I have assumed that the incursion onto that territory requires its own distinct 2(4) analysis, since it’s only at that point that there is a “use of force against the territorial integrity” of that state. That is to say, each potential 2(4) violation requires its own self-defense calculus. And I think it is fair to say that the existence of the armed… Read more »

John C. Dehn

Kevin,

Doesn’t the White House fact sheet on the use of force outside areas of active hostilities implicitly address this point? It requires that the target pose a “continuing, imminent” threat to the U.S. and states that not all terrorists or terrorist forces will meet this standard. Whether it is the proper legal standard for necessity or not, it appears to address the necessity of the resort to force in a country without a battlefield. Unfortunately, I am not sure whether it can be said that the fact sheet contains an ad bellum proportionality standard, though it purports to impose a strict in bello standard.

Jordan
Jordan

For evidence that the Obama Doctrine is in the alternative (i.e., both law of war paradigm and self-defense paradigm — Koh, et al.) see
http://ssrn.com/abstract=2402414
However, the U.S. cannot be at war with al Qaeda as such — http://ssrn.com/abstract=2165278
and there is no displacement of human rights law or the law of war (when the law of war otherwise applies) merely because responsive force is in self or collective self-defense.

Jordan
Jordan

the first article above demonstrates why “imminent threat” is unacceptable as a self-defense test.
Andrew: and footnote 17 at page 421 therein addresses Dinstein’s claim and the problem under the laws of war re: such a targeting (Osirak).
And Marty re: your hypo, if bin Laden was a DPH, civilian who was directly participating in hostilities in a real war in Afghanistan while he was in Pakistan, he would be targetable under both the law of war and self-defense paradigms (the latter as a DPAA, direct participant in armed attacks). If a General of the armed forces of State B was in State C on other business, he would be targetable under the laws of war (FM 27-10, para. 31 [“or elsewhere”]), but the law of self-defense would not until he became a DPAA.