More Memos Anyone?

by Jens David Ohlin

Today the New York Times reported on the existence of four secret memos covering the various aspects of the U.S. Navy Seals raid that killed Osama Bin Laden.  It would be great to see the memos, but I wouldn’t hold your breath. They aren’t likely to be released in the very near future, though I think each of them would, in very significant ways, increase our understanding of how the United States executive branch understands crucial questions of international law.

For now, until the memos arrive, here are a few brief comments about the underlying issues contained in them. First, let’s discuss the duty to capture. I think the memo (at least from its description in the New York Times) gets this exactly right. If Bin Laden effectively communicated his intention to surrender, the attacking forces are required to respect that decision and take him into custody instead of killing him. However, there is no affirmative obligation under IHL to offer targets the opportunity to surrender before attacking them. In other words, one does not need to ask a target if they wish to surrender before killing them. Based on this analysis, it is entirely legal under IHL for a military operation to proceed with the intention to kill the targets rather than to capture them (although query whether Ryan Goodman, presently at DoD, might disagree with this conclusion).

Another memo dealt extensively with the putative violation of Pakistan’s sovereignty caused by the Navy Seals raid. According to the Times article, the focus of the memo was the Unwilling or Unable standard, which has been extensively vetted on this blog in the past (including some intense back-and-forth between Kevin Heller and Marty Lederman). I wanted to make two quick points about the nature of this debate. First, I think the discourse is focused far too much on customary international law, which to my mind is of limited–or even no–relevance to the issue. (In this respect, various statements regarding self-defense from the ICJ, including in Nicaragua, have contributed to this confusion.) In reality, the law of self-defense is a question of treaty interpretation, governed by article 51, which recognizes and preserves, but strictly speaking does not create, an inherent right under international law. Indeed, even if customary international law were to purport to eliminate the right of self-defense, the right would still endure as legally effective, in part because it is an inherent right that cannot be taken away–a point recognized by the text of article 51 as central to the UN Charter regime. Consequently, the real test of the unwilling or unable standard is whether it is consistent with both the natural right of self-defense and the text of article 51–something that the current debate has shown insufficient attention to. And, dare I say it, the text of article 51 suggests that the provision was designed to carve out, as an exception from the general prohibition on the use of force, the defensive rights that existed pre-charter going back as far as natural law. That should be the focus of the analysis.

OK, now back to watching the GOP debate.

http://opiniojuris.org/2015/10/28/more-memos-anyone/

6 Responses

  1. Hi Jens, always good to hear your views, and to hear from you more generally. Like you, I’d love to see these memos. I would like to know your views on the issue that that ordering, threatening, or waging hostilities on the basis of no quarter interrelate with the anaylsis in the memos insofar as we know of them (I’ve only read the NYT article-so my knowledge is limited to that).
    Where I guess we may disagree is that self defence can be traced back to natural law, for two reasons 1. who gets to say what natural law is/was? 2. post-1928 there was the Pact of Paris, which was the controlling law when the Charter was being drafted. There is nothing in the Pact (in my view) that implies an unwilling or unable standard, and there is nothing in the Nuremberg or Tokyo Judgments (which relied on the Pact) that would give succor for such an exception.

  2. Jens,

    I’d like to hear more about your views on self-defence. In particular, I’m intrigued by this comment: “Indeed, even if customary international law were to purport to eliminate the right of self-defense, the right would still endure as legally effective, in part because it is an inherent right that cannot be taken away – a point recognized by the text of article 51 as central to the UN Charter regime.” What is the source of the inherent right recognized by Art. 51 if not customary international law as it existed pre-Charter? And if the right of self-defense recognized as an inherent right in Art. 51 is based on custom, can the content of that right not change in response to developments in state practice and opinio juris?

  3. Jens, given your recent book, aren’t you at least going to comment on the article’s statement that the lawyers concluded the President can constitutionally “violate international law” in a covert action? I think that is correct, but I am curious if you think it is correct as well?

  4. Jens David: There were two claims to be made regarding types of international law at stake: the law of war paradigm and the self-defense paradigm. See also http://ssrn.com/abstract=1718548 regarding the death of bin Laden.
    Kevin Jon’s nearly rhetorical questions provide good points re: the nature of CIL and treaty interpretation under Vienna Conv. art. 31(3)(c).
    Julian: you’ve got to be kidding! Every court per ruling or dicta has recognized that the President and all members of the Exec. branch are bound by the laws of war, customary and traty-based, except Judge Kavanaugh’s needless dicta, perhaps self-serving (who was a member of the White House with Gonzales, et al., when it was full of post hoc confessed criminals and others who are beyond a reasonable doubt reasonably accused). See http://ssrn.com/abstract=1989099 especially at 67 & n.14 (claim number 8 out of the 9 false claims).

  5. Julian: see also the numerous cases and opinions re: the Pres. is bound by CIL documented, for example, in 14 UC Davis J. Int’l L. & Pol’y 205, 240-45 (2008), available at http://ssrn.com/abstract=1485703
    No Supreme Court has ruled otherwise or even stated per dictum that the President is not bound by international law!

  6. It is important to point out that the U.S. explicitly has recognized the legally binding character of the natural law of nations (aka “necessary law of nations”) and general principles of law recognized by civilized nations (aka “voluntary law of nations”) through treaties. E.g., U.S.-Prussia Treaty (1786) (“law of nature or nations”); Treaty of Ghent (1814); see Martens Clauses in Hague and Geneva Convention-Prot. 1). This is important because the President’s authority is constrained not only by U.S. treaty and customary international legal obligations, but also by these other two sources of international law. Hence, e.g., the right to self defense certainly must be considered not only a treaty and customary right but also one guaranteed by the natural and voluntary laws of nations.

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