A Quick Bleg on the US and Self-Defence

by Kevin Jon Heller

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.


16 Responses

  1. 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?

  2. Marty,

    Your first statement is clearly correct — but I don’t see how that doesn’t mean precisely that ad bellum concerns fall away, because extraterritorial uses of force no longer need to be justified as self-defence (or, perhaps slightly differently put, are simply presumed to be self-defence for the duration of the conflict). If no new self-defence analysis needs to be conducted for later extraterritorial uses of force, what role do necessity and proportionality have to play?

    Dinstein’s position is precisely that necessity and proportionality are irrelevant when a state is fighting a war of self-defence, because all actions until victory is complete are presumed to be necessary and proportionate.

  3. 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.

  4. 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 there be “necessity” for A to strike against those members in State C if C does not consent? And even if the answer to that is “yes” (perhaps on some theory that it’s necessary to deplete B’s forces overall?), surely the nature of the use of force in C by State A must be proportional –tailored — to the objective, no?

  5. 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.

  6. Marty,

    I don’t disagree with you. But I see nothing in Brennan’s statement (or the US’s many other similar statements) indicating the US believes it has to conduct a new self-defence analysis whenever it uses force in the armed conflict with AQ in a new country. His statement is far more general — and, of course, the US believes it is in a global NIAC with AQ. Indeed, the fact that the US only discusses self-defence when it wants to use force against a group that is likely not part of “core” AQ — such as ISIS or the Khorasan Group — suggests that Brennan’s statement means what it says.

    Moreover, what is a “new” country? If the US has previously acted in “self-defence” in Pakistan, Yemen, or Somalia, but then ceases acting for a few months, is a new self-defence analysis required when it resumes using force? Again, nothing in Brennan’s statement indicates the answer is yes. So the US position, in the absence of further explanation — which, of course, is never forthcoming — seems to be little different than Dinstein’s.

    All that said, Brennan’s statement is less objectionable if the US believes it has to conduct a self-defence analysis the first time it uses force in a “new” country. But only slightly less objectionable. The problem with your last statement about proportionality is that lack of proportionality can only become a problem if the US actually conducts a self-defence analysis of later (i.e., non-initial) uses of force. If it simply presumes all acts in a country to qualify as self-defence after the initial act qualifies, the absence of proportionality will obviously never become an issue.

  7. PS: If you know of anywhere the US has tried to defend the Brennan position as well as you have, I’d appreciate the cite…

  8. 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?

  9. Marty,

    I’m not sure how to make the point any more clear. The object of conducting a self-defence analysis is to determine (1) whether there has been an armed attack; (2) whether, if so, the victim state’s response is necessary; and (3) whether, if so, the victim state’s response is proportionate to the aim of repulsing the attack. If the US simply presumes that all subsequent acts of force qualify as self-defence, thus conducting an analysis of (1)-(3) only for the first act of force in a country (assuming your reading of Brennan’s statement is correct), the US will never need to consider either the necessity or proportionality of any subsequent act of force. Or are you assuming that Brennan’s statement only concerns (1), the existence of an armed attack? If so, your puzzlement makes sense — the US would still need to assess the necessity and proportionality of later uses of force. But again, I see nothing in Brennan’s statement that supports that position.

  10. 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?)

  11. I hope you’re right! But I think my interpretation is no less reasonable than yours — which is why we need greater explanation by the administration.

    Here is Dinstein on p. 237 of the 4th edition of his book concerning wars of self-defence:

    Proportionality in this sense, albeit appropriate for the purposes of on-the-spot reaction and defensive armed reprisals, is unsuited for an investigation of the legitimacy of a war of self-defence. There is no support in the practice of States for the notion that proportionality remains relevant – and has to be constantly assessed – throughout the hostilities in the course of war. Once war is raging, the exercise of self-defence may bring about ‘the destruction of the enemy’s army’, regardless of the condition of proportionality.

  12. 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.

  13. 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 conflict against B gets one part of the way there — but that State A must also assess that the “use of force against the territorial integrity” of State C will be N&P to the self-defense objective.

    I’m not sure Dinstein intended to address *that* question. And I concededly can’t cite any authorities for or against it offhand — it’s simply been what I’ve long assumed. FWIW, however, I read Brennan’s speech as being *consistent* with this view: Right after the quote on which you rely (“we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time”), he does *not* say: “and therefore sovereignty norms become beside the point.” To the contrary, he says: “That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.” I read that at the time — and still read that — to imply that each “use of force against the territorial integrity” of a nonconsenting state must satisfy the N&P norms.

  14. 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.

  15. 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
    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.

  16. 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.

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