10 Jan Somalia and Self-Defense — “The Lawyers Always Ask For Details”
On Sunday, U.S. forces attacked what the Defense Department is characterizing as “’principal Al Qaeda leadership’ operating in the southern part of Somalia.” DOD’s information on the attack is pretty sketchy, but the official Defense Department news story indicates that the targets were “terrorists who may have struck the U.S. embassies in Kenya and Tanzania.” [Update: The New York Times is reporting the attacks may have killed Fazul Abdullah Mohammed, who orchestrated the 1998 East Africa Embassy bombings.] The State Department’s press briefing yesterday added few details, but I loved the comment by Department Spokesman Sean McCormak (at approx. the 2:26 mark) that he couldn’t answer whether any of the targeted terrorists, if captured, would qualify as enemy combatants because “the lawyers always ask for details” so that categorizations could not be made on the basis of mere hypotheticals. Meanwhile, new U.N. Secretary General Ban Ki-moon expressed concern over the humanitarian impact of the attacks “notwithstanding the motives.”
So, I’m a lawyer. And, Mr. McCormak is right – I want more details. What was the legal motivation for this use of force? As we all know, the U.N. Charter prohibits the use of force except where authorized under Chapter VII or where there is a case for exercising the inherent right of self-defense. As to Chapter VII, although the U.N. Security Council condemned the attacks on the embassies in Nariobi and Dar es Salaam in 1998, I don’t read it as an authorization for the use of force against those responsible. Operative paragraph 3 does call “upon all States and international institutions to cooperate with and provide support and assistance to the ongoing investigations in Kenya, Tanzania and the United States to apprehend the perpetrators of these cowardly criminal acts and to bring them swiftly to justice.” But I doubt that “justice” necessarily equates to gunship attacks. And, given that the U.S. explanation seems keyed to the 1998 attacks, I wonder whether that precludes the United States from relying on any later U.N. Security Council resolutions that might have broader language with respect to authorizing the use of force to combat terrorism.
And what of self-defense? Certainly, the United States can argue that it was the victim of an “armed attack” in 1998 and it has a legal right to respond against those who attacked it. After all, that’s the “classic” formulation of the doctrine. But, I wonder how well it holds up here, given that the U.S. response comes now more than eight years after the original attacks? Putting aside the issues of proportionality implicit in Secretary General Ban’s comments, the length of time between the attack and the response raises interesting questions about the notion of “immediacy” – i.e., how international law limits the time within which states may respond to armed attacks. Indeed, if eight years is O.K., as well it might be, where do we draw the line? Can a state wait 15 years to respond to an armed attack? What about 30 years? Don’t such delayed responses risk, as the New York Times today is indicating is the case in Somalia, the perception that the response was more about revenge than self-defense? And what of the idea that self-defensive actions must be necessary – doesn’t necessity get harder to claim the more time passes? More generally, might the doctrines of estoppel or laches kick in, given other states’ growing reliance interests that further uses of force are not forthcoming? Otherwise, doesn’t the international system risk great instability if a state knows it can bide its time and wait years, or even decades, for the right opportunity to respond to an armed attack against it?
Given such questions, I would not be surprised if the United States does not rely only on the classic formulation of the self-defense doctrine, but also justifies these attacks as an instance of preemptive self-defense. Indeed, my former boss Will Taft argued that, as much as one could see the U.S. intervention in Afghanistan as a reaction to an armed attack, it was also a case of preemptive self-defense given the imminent threat of harm from additional Al Qaeda attacks. Obviously, other states are much more skeptical about the availability of preemptive self-defense under the U.N. Charter. Still, you can see hints of such thinking in McCormack’s statements yesterday, when he talks about the fact that the terrorist targets had enjoyed something of a “safe haven” in Somalia and the U.S. attacks were designed to ensure that these people didn’t escape to set up a new base from which they could threaten U.S. interests again.
Now, let me be clear – I don’t mean to question the horror inflicted by Al Qaeda’s 1998 attacks or the United States’ right to bring those who perpetrated them to justice. Indeed, I was actually sent by the State Department to Kenya some weeks after the 1998 attacks. I’ll never forget standing among the ruins of what had been the U.S. embassy with bodies literally still sealed inside what remained of the structure. Nor, will I ever forget working with those who’d survived the attacks, still coming to work through Marine Corps pill boxes day after day, notwithstanding the tremendous losses they had suffered. So, I’m not questioning the United States’ moral or political reasons for responding. It’s just that as a lawyer, and as someone who saw what happened there, I want more details.
I would like to raise a question about whether the UN Charter prohibition on the use of force is really relevant in this case. After all the Charter is mainly directed at the use of force “against the territorial integrity or political independence of any State” and the government of Somalia (at least the one we recognize) sanctioned the attack. Therefore the territorial integrity and political independence of Somalia were arguably not infringed. I guess it could be argued that the US use of force was inconsistent with the purposes of the UN but that is debatable — e.g. was it damaging to international peace, harmful to human rights etc?
However the best way to assess the legitimacy of the attack may not be by reference to the Charter but other bodies of international law — i.e. was it consistent with US obligations under IHL and/or fundamental norms of human rights? These are familiar questions from previous targeted killings in the war on terror, like the CIA’s missile strike in Yemen in 2002: was the attack carried out in the context of an armed conflict? If so, did it comply with principles of distinction and proportionality? If not, did it violate the right to life of the victims?
…or an even easier assessment. US supports the transitional government there. They request our support in a written [non-public] document. Behind the scenes agreement concluded. We obtain their permission to act in their territory for the limited purpose of assisting them in defense of their territory (albeit for our own strategic interests). No need to get into Art.51 issues.
Anthony,
The jus ad bellum issue could certainly be argued the way you do so, i.e. that the prohibition on the use of force in Article 2(4) of the Charter is activated only when the purpose of a military action is to impinge on the territorial integrity and political independence of a state. According to that view, for instance, certain actions in the name of humanitarian intervention or protection of a state’s own nationals in the territory of another state cannot be a violation of Article 2(4), as their purpose is not to violate the political independence of a state.
The majority view among international scholars is, I think, different – whenever one state sends a gunship or bombs the territory of another state, it has violated the latter’s territorial integrity and Article 2(4) is engaged (see generally Christine Gray’s International Law and the Use of Force).
I therefore don’t think it’s relevant for the purposes of the jus ad bellum that the US has launched missiles against targets in Somalia, or that it has done so previously in Yemen, with the sole purpose of killing a terrorist. These actions are still per se a violation of the territorial integrity of Somalia and Yemen, and Article 2(4) is applicable.
The question then is, as you well point out, the validity of the consent given by the governments of Somalia and Yemen, as the consent would preclude any wrongfulness, at least when it comes to the jus ad bellum. Then we do indeed have the question of whether Somalia posseses a government capable of providing valid consent, and whether the US has any obligations under a human rights treaty or an IHL treaty to the individuals concerned. I have my doubts about the latter, as just lobbing a missile at a terrorist does not an armed conflict make, nor does it render IHL applicable.
Both good points — let me offer a few quick responses. Although I agree that the Art. 2(4) prohibition appears to only extend to when the use of force is intended to affect the territorial integrity or political independence of a state, U.N. practice has been to treat all uses of force as subject to the prohibition (i.e., to treat uses of force in other states as per se affecting territorial integrity and/or political independence). Indeed to read it otherwise would significantly enlarge situations in which the use of force would be lawful. Kosovo or, even Iraq, could arguably be justified on the ground that the use of force was not to take away territory or deprive a state of its independence but to deal, respecitvely, with a humanitarian crisis and a really bad dictator. So, I don’t think the fact that the U.S. use of force had nothing to do with Somalia’s territorial integrity or independence removes us from UN Charter considerations.
Similarly, while I agree that IHL matters here, I wanted to focus on the propriety of the use of force itself. As to Somalia’s role, I agree that Somalia’s transitional gov’t sanctioning the attacks would be relevant IF the US was coming in to aid Somalia in stabilizing the country (although there are legal issues with 3d country interference in non-int’l conflicts that I’ll leave aside for now). But, so far, the US isn’t saying that they did this for purposes of helping out Somalia–they did it to get the 1998 bombers. And, if that’s why they did it, I think it’s perfectly appropriate to ask the question on what basis the use of force rests.
I believe that the shift in the comments to viewing this as a question of armed intervention by invitation of the government, rather than trying to shoehorn it between the lines of Article 2(4) of the Charter, provides the correct way to analyze the legality of this use of force by the United States.
In short, the law of intervention by invitation permits a state to use force within the territory of another state so long as a valid invitation has issued forth from the latter (subject to the same human rights and IHL limits that would bind the inviting state). The validity of the invitation, of course, depends on whether the government (or government official) issuing the invitation has the legal right to do so — that is, whether it represents the state on the international plane. As Brownlie so succinctly put it, the “difficulty arises when the legal status of the government which
is alleged to have given consent is a matter of doubt.” This issue of invitation validity has arisen repeatedly over the last half-century or so, as I analyzed in a law review article I published a few years back. (I actually flagged the Somali question as one that would be a more difficult legal question, but this was before the Transitional Federal Government (TFG) had been established.) More recently, I also tried to apply this law to the invitation by the Interim Iraqi Government that formed the legal basis for U.S. and Coalition troops in Iraq for a time, which was run as an ASIL Insight.
So presuming that the statements by the TFG Prime Minister that he authorized the attack are true, the legal determination hinges on whether the TFG sufficiently represents the state of Somalia such that this invitation would be valid grounds for a use of force by the United States on Somali territory. Looking to UN Security Council resolutions on Somalia since the creation of the TFG in 2004, one sees a pattern of recognition of the legitimacy of the TFG to govern Somalia. In Resolutions 1587, 1630, 1676, and 1724, the Council stated its support for the TFG’s goal of “establishing effective national governance in Somalia.” Most recently, Resolution 1725 provided Chapter VII authorization for a regional peacekeeping force in support of the Transitional Federal Government.
To my eyes, this looks like a pretty clear endorsement by the states on the Security Council, and, through its Chapter VII action, by the Council itself, of the legitimacy of the TFG to exercise sufficient authority in Somalia in order to implement the Transitional Federal Charter. Certainly it’s not as clear as if the government issuing the invitation were unhampered by challenges to its legitimacy by nonstate actors imposing upon the state’s monopoly on violence; but then again, if there weren’t an internal conflict occurring, the need for armed intervention by invitation likely would be less pronounced.
“I think it’s perfectly appropriate to ask the question on what basis the use of force rests.”
Actually, it’s not. The Lotus principle puts the burden on you to name what law the US violated, not what law gives the US permission to act.
Good points Chris — but again I’m wondering about the overlay between your last point that the internal conflict prompts the need for the armed intervention by invitation and my point, which is that the US isn’t justifying its attacks as a function of the ongoing internal armed conflict or supporting the TFG, but rather as serving its own ends of killing those responsible for the 1998 bombings. Does the invitation rule really require no nexus to assisting the inviting state, or would any limits on the subsequent use of force by the invited state be picked up by your acknowledgement that all such uses of force are subject to IHL and human rights limitations (I’m assuming here that you’re right that we can give the TFG authority to issue the invitation)? In any event, putting aside the invitation issue, I’m still interested in what folks think about my self-defense question as to how long do states have to respond to an armed attack?
As for the Lotus principle, I’d agree with the point IF I were a sovereign state litigating before the ICJ and wanted to cite a case which, as much as I personally love it, (a) was a pretty controversial 8-7 decision; (b) makes a statement about states being free to act absent an int’l law prohibiting their action, but then proceeds to decide the case by finding a law–the effects doctrine–that gave the defendant state a basis for acting; and (c) the holding of which has now been overruled by not one, not two, but at least three major multilateral treaties. But, since I’m not a sovereign state, my question was from the perspective of a U.S. citizen seeking an explanation for why his government had taken certain actions, to which, as I thought my post indicates, I have some personal sympathy.
Just to clarify — I didn’t mean to suggest in my initial comment that armed intervention would only count as a use of force implicating Article 2(4) if its intention was to undermine territorial integrity or political independence. My point — as subsequent comments have also focused on — was purely about the question of consent, or invitation as Christopher LeMon says. If a state consents to the use of force by another state inside its territory, does that mean that territorial integrity and independence are not violated and jus ad bellum is not relevant?
Duncan suggests that this might only be the case where force is used in support of the national government, but I’m not clear why that should be a decisive factor. What if (as in this case) force is used because of the inability of the national government to secure effective control of its own territory? In other circumstances, the US could presumably seek the extradition of Fazul and whichever other suspects it wanted to charge with involvement in the embassy bombings. Given that that’s not possible for the Somali government (I’m leaving aside all questions of the legitimacy of this particular govt., but Christopher LeMon’s arguments seem persuasive to me about this), why can’t it invite the US to take the actions necessary to deal with a threat to US security? What if it had been possible for the US to put a commando team on the ground, at the invitation of the Somali government, and seize the suspects that way (again, I am leaving aside the question of what they would do with him after seizing him, since I don’t want to get into the questions surrounding Guantanamo, rendition etc)? Would that also be a violation of territorial integrity?
But even though I don’t think the UN Charter is relevant here, I do think that Duncan’s point about the lapse of time since the embassy attacks is pertinent albeit in a slightly different way. If we’re looking at this in an IHL framework, then Fazul and the others would be civilians putatively taking part in hostilities, who can be targeted only “for such time as” they are directly participating (cf. the Israeli High Court opinion on targeted killing). If they haven’t engaged in any aggressive act for 9 years, does it make any sense to say they are still directly participating? And if we’re using a human rights framework, you would presumably have to argue that they posed a sufficiently grave threat to other people’s lives that killing them was justified, and again the lapse of time makes that claim difficult to sustain.
Anthony puts the invitation point nicely — there is no jus ad bellum issue with a legitimate invitation, because there is no use of force against the inviting country, as there is no violation of the inviting state’s sovereignty. In fact, the inviting state exercises its sovereignty by inviting another state to use force on its territory — which is why the legitimacy of the inviting government, and its legal right to exercise sovereign functions of the state, is so important in determining whether the invitation provides a valid legal basis for armed intervention by another state.
To respond to Anthony’s and Duncan’s questions, and leaving aside Anthony’s last points about IHL and human rights questions raised by the lapse of time (both good points), I don’t think that motive is particularly relevant. States facing armed challenges to their governments often would appreciate another state coming to the rescue, but it’s rare that a state with the power to do so will accept an invitation to put its forces in harm’s way, unless it has an independent interest in resolving the conflict to the benefit of the inviting government. This overlap in interests is sometimes phrased in terms of supporting the recognized government, and nothing more, and it’s sometimes couched in terms of a broader concern, be it counterterrorism, anticommunism, promoting regional stability, or preventing the collapse of a state next door.
What’s important is not that the inviting and invited states agree on why the invited state may use force within the inviting state’s territory, but rather that the use of force be confined to any limitations expressed in the invitation. And in the event that the invitation is revoked by the inviting state (e.g., if public backlash makes the invited intervention more liability than benefit), any continued armed activities by the previously-invited state would constitute an unlawful use of force.
I think that it remains to be seen whether the United States’ military action in Somalia will help or hurt the credibility of the TFG with the Somali public, as this question brings in all sorts of factors ranging from memories of the ill-fated intervention in the early 1990s, to clan and subclan politics, to the population’s conflict between the desire for order and the classic security dilemma felt by the various actors. A puzzle inside a riddle wrapped in an enigma, perhaps.
— Christopher
Duncan asks how long States have to respond in self-defence to an armed attack. This issue is governed by the doctrine of necessity, the key question being whether it is necessary to use force self defence at that point in time. In the Caroline incident, Secretary of State Webster spoke of a necessity of self-defence, instant, overwhelming leaving no choice of means and no moment for deliberation. However, it is questionable whether there is a requirement that the defending State act “immediately”. When Argentina invaded the Falklands Island, the UK’s response was a few weeks later. Clearly, the UK required time in this case as it had to despatch a taskforce to the other side of the world.
It is difficult to say whether the passage of time lessens the necessity of the use of force in self defence or alternatively strengthens it. A good question that can be posed to illustrate the problem and I ask my students is whether Syria has the right to use force today to retake the Golan Heights which were captured by Israel in 1967. Its now 40 years after the event. Some might argue that given the passage of time Syria is bound to use diplomatic means. Syria might argue that the passage of time shows diplomacy has not and will not work and that it has no other means of retaking this territory thus demonstrating that the use of force is necessary. One can argue the issue either way. However, perhaps the better view in the case where territory is occupied is that so long as the territory continued to be occupied there is a continuing armed attack.
But what of the case where there is no occupation of territory? In such a case, the use of force in response done must be to defend against the attack that is occurring or has occured. Where that attack is undoubtedly over then the response in self-defence is either a reprisal (simply to send a message or perhaps retaliation) or as Taft (former State Department Legal Adviser) states an exercise of anticipatory (or perhaps preemptive) self-defence where it is thought that a future attack is imminent (or somewhere on the horizon). Another possibility is to view the response after the initial attack is over as merely one incident in an ongoing conflict – the so called accumulation of events theory. So, if the US is involved in an armed conflict with Al-Qaeda then perhaps this is merely one incident in that conflict and there is no need to relate the recent attack in Somalia to the Embassy bombings of 1998. I say “if” because as was discussed on this blog many months ago its unclear whether one can say there is an armed conflict between the US and Al-Qaeda which is independent of the conflicts in Afghanistan and Iraq. But the US govt view (which I think was accepted by the Supreme Court in Hamdan) is that there is such a conflict.
Marko said that “just lobbing a missile at a terrorist does not an armed conflict make, nor does it render IHL applicable.” I disagree. IHL can indeed apply to such an isolated incident where the use of force can be regarded as a use of force between States. In the Tadic case, the ICTY, stated that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a States.” Note here the distinction between the threshold required for a conflict between States (where all that is required is resort to force) and for a conflict between a State and an organised armed group (where protracted armed violence is required). It is well accepted that any use of force between States implicates IHL and that the threshold for an armed conflict between States is pretty low. My recollection is that the US has claimed POW status for a pilot captured after being shot down over Syria or Lebanon in a one-off incident in the 1980s. Likewise if a State fires a missile at another State which is directed at a civilian target it can hardly claim that there is no armed conflict and it is not bound by any IHL obligations
One could argue that “lobbing a missile” at a terrorist falls within the second group of conflicts described by the ICTY (conflict between a State and an organized armed group). Whilst this might be true it is also a resort to force between States where the State is lobbing a missile into another State and in violation of Art. 2(4). I agree with those who have suggested that there might be no violation of international law in the case of the recent Somalia attacks due to the agreement of the Transitional govt. However, were that consent not to be present, the attack would implicate Art. 2(4) [even if Art. 51 might also apply]. In such a case, I think it would anomalous to argue that the jus ad bellum applies but that IHL does not.