In Re: Targeted Killings, Armed Conflict & International Law
- A VIEW FROM INDIA, INVOKING THE TRADITION OF A MORAL HIGH GROUND
Three good places to start in a discussion of this kind:
1. Law is not justice. "Law is merely a mechanism. You press the
right buttons, and if you're lucky, justice may show up in the result. A mechanism
is all the law was ever meant to be." (Raymond Chandler)
2. War is bad, and we would like to avoid it as much as possible. Our
priority in any armed conflict, howsoever it is characterised, is to bring it
to a conclusion which ensures the least injury, especially loss of life, on all
sides.
3. All human beings are equal, and are inherently possessed of certain
rights by mere virtue of being human. These rights may not be completely
non-derogable, but you certainly have to do a lot if you want to infringe on
them.
Anyone who disagrees with any of these three points should probably stop reading.
I'll only annoy you.
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There appear to be two very strong convictions current in policy (and
sadly even academic) circles today, and it is hard to decide which is more
alarming: -
a) 'Real war' is about results, and it is governed only by the desires
of the parties prosecuting the conflict, and by their relative strengths.
b) If we can somehow show that there is a reasonable chance that what
we (as a State) are doing is *not unlawful* under some construction of the
prevalent International Law, then it's a good thing / the right thing, and we
are wholly justified in doing it as much as we like.
There is a word for the first belief. It's called
"bullying". It tends to lead to war. Even when it rises to a more
sophisticated level, there's still a word for it. It's called
"privilege". It tends, in a rather unsophisticated fashion, to lead to
war. The United Nations was avowedly started to "save succeeding generations of
mankind from the scourge of war"; it would appear then that its mission is to save most nations
from themselves. And the point of the International Law system, such as it is,
is to give some manner of real meaning to the assumption of sovereign equality
- that is, to make sure there is no operation of "privilege",
private law by a party unto itself.
There is a word for the second belief too. Scott Adams deserves credit
for coining the term, "The Way of The Weasel". Which is what a lot of
the legal analysis here seems to be. Weasel. Set high standards for any
international law regime to come into play, with little or no intention of
applying those standards to oneself, and then apply the lowest standards one
can devise with respect to the actions one actually wishes to take. Weasel.
Hypocrite, too, but that's actually an accepted part of any political system.
The problem is not with the quality of the analysis. It is, for the
most part, impeccable - an informed debate at the highest levels of integrity
& intellect. The problem is that we seem too busy trying to establish what
is or is not lawful that we seem to have forgotten the first point above - law
is a mechanism, and one known to be highly prone to abuse at that. A good
mechanism is a definite improvement, but shouldn't the base question be -
"Is this just"? Procedure cannot be allowed to trump
Substance, or we find ourselves in the blatant absurdity of (presumably legitimate) means
attempting to justify (a potentially unjust) end.
That is the duty of the modern State, in today's comity of nations. To
act in a manner that is just, and not just lawful. But even "just
lawful" would be progress from the grey abyss of "not unlawful". Today's approach can be summed up thus - First, you'll have to prove me wrong, and if you ever do, I'll interpret the
law another way, or refuse to recognise the law you used. Push me to the ropes,
and I'll claim that national self-interest is my sacred duty and overrides the
law anyway. (This last view can be seen propounded most recently in the Al-Yamamah case - R. v/s BAE Systems, by its proper name...) Would any nation have to struggle so hard on the technicalities, if
they could point to the result & say, "Look. Here is self-evident
justice. Here is equity. Here is fairness & a clean conscience."? No
doubt they would still be called up for the means used, but conceivably they
would have far stronger grounds for suggesting their interpretation or
adaptation - Utilitarian sigma benefit, and not just narrow self-interest.
This by way of preamble. Now on to the real points I wanted to make.
The "Global War on Terror" was a concept promoted by Bush regime "real
war" theorists, because they believed they could somehow have a
"superlegal war". Fiddle with the mechanism's requirements, as regards
the thresholds of an actual conflict, and ideally you'll be able to do anything
you can in a war, without having to keep in mind any of those things you
have to do in a war. What they ended up with is better described as a lawless war, and there is phenomenal irony in the fact that - for
wholly different reasons of both jurisprudence & policy - the US Supreme
Court itself scuttled this notion in Hamdan. Not only did that case
explicitly make Common Article 3 (i.e. of the Geneva Conventions) the relevant set of safeguards, it actually placed
on record that the war in question must be at least a Non International Armed
Conflict (with all the attendant geographical limitations).
Hamdan also explicitly
made CA 3 & NIAC status only the minimum safeguards. Marko Milanovic
makes an excellent point on the logical classification of conflicts, when he notes that there is always either an IAC or an
NIAC, by virtue of which we say "armed conflict" exists - not that first
there is an armed conflict and then we sort it into one or the other category
(which implies some residuary independent of them). An inescapable conclusion
is that, howsoever vague the criteria in Hamdan, more stringent
safeguards may be appropriate.
What would those safeguards be? If we are to leave behind IHL, then
they can only be Human Rights Law, which (I believe) is what Prof. Alston has
argued for most eloquently in his report to the UNHRC. Yes, the HRC may have
its own motives in calling for the report, but that is no grounds to question
the professional or academic integrity of its author. The basic point
underlying it all is this - if you claim no other law applies, then the
residuary category is Human Rights Law. You have to prove (or start) a
treaty-definition level Armed Conflict to displace it with IHL. You can't say
you have no obligations to respect human rights beyond your borders, because
you all signed treaties which proclaim such rights as universal. They're
"human" rights, not citizens' rights! You can derogate from it
internally through established procedure, but not in somebody else's territory,
not unless they're at emergency and derogate accordingly. This would be when it
would mean something to say you have consent from the country where you will
operate - consent not as a means of negating what would otherwise be violation
of territorial sovereignty, but as a means of validating the derogation from
Human Rights (whether as an emergency or by acceptance of IHL) which is
inherent in such operations.
Of equal importance is the equal application of such “Human Rights”.
You are required, in law & conscience, to give equal weight to the lives
and rights of a terrorist's wife, and those of the First Lady. It is very hard
from an International Law standpoint to see the "targeted" killing of
one dead terrorist as sigma benefit when it involves also ten dead wives (and if Osama Bin Laden is the archetype, the proximity of multiple wives is a non-negligible risk).
Indeed, if you take Prof. (Mary Ellen) O'Connell at face value (a la Benjamin Wittes), it is very hard to not see that as a crime.
Of course, it is very easy from a policy or national security
standpoint to see it as a net positive (one less terrorist, no dead Americans),
but that does not explain why such conduct is not wrong.
To answer this, Kenneth
Anderson has invoked Self-Defense as a secondary rule (to the extent that we
accept bona fide anticipatory - not preemptive - self defense). He illustrates why it can preclude any wrongdoing; to my mind this is only an extension of
the *not unlawful* qualification - but at least he is genuinely concerned about both
the moral & legal standing of American actions, which is more than can be
said for the administration itself. They don't even seem to be trying to justify "signature strikes" - beyond invoking the tired, opaque formulation of "National Security".
Where does this brand of "moral analysis" leave us? Highly
respectful of human rights, but unable to act against either non-state actors
or the states which use them as proxies in a war of attrition against us.
Propping up an International Law regime which is used by those who wish us ill
to block or undermine us at every turn. Welcome, gentle reader, to India.
It leaves us, then, in need of a pragmatic relaxation of these
policies to the extent that can ensure our safety, but not to the extent that defensive actions become counterproductive (Defensive, because it should be quite clear by now that such actions can only be one of two things - defensive, or an act of war) . A combination of jus ad bellum justification and jus
in bello proportionality can & should preclude international wrongfulness
of actions, but we must be stringent on these standards & the factors that
go into defining them.
One of those factors is very likely to be a premium on
the lives or efforts of one's own people over the enemy. This is fair where the
enemy has caused (or is known with reasonable certainty to be likely to cause)
significant damage to one's nation or the people one is in duty bound to
protect. But it is very difficult to justify in relation to the civilian
associates of such a person, whatever their moral complicity in such acts.
Attacking them is, at least on the face of it, either wilful killing or murder
depending on Rome Statute Art. 7 or 8 applicability. It may be the minimum
damage one can reasonably inflict or risk losing the opportunity to act, which
may bring the possibility of greater harm in the future, but it STILL reeks of
valuing some lives over others.
USA (equally, other nations that reject the
extraterritorial application of the ICCPR - which technically includes India) must be careful that this does not
devolve into saying American lives (or Indian lives etc.) are more important than Pashtun lives, or
that in prosecuting a war it is somehow therefore permissible to cause
"collateral damage" on any scale one deems fit. That particular
euphemism is fine for talking about damage to property, facilities etc. where
you can just go help rebuild it when you're done shooting (and look, all those
former government officials queuing up for contracts. What do you mean, Blackwater? This firm is called Xe, I tell you...), but it really cannot
account for casualties inflicted on civilians who by any account have no
continuous combat function - this, without entering the equally lively debate on what exactly constitutes CCF. We'll leave that debate for, let's say, an Israel-Palestine setting, where it has a lot more visceral immediacy.
The bottom line is really that Mr. Bush failed to convince anyone.
Even American domestic law requires that a "Global War on Terror"
still be either an IAC or an NIAC, which must be prosecuted with regard to IHL
- and even for USA that means ALL FOUR Geneva Conventions. It is impossible to
call it a war and then not award the belligerent's privilege. If, on the other
hand, it is not an armed conflict (which it will NOT be unless it falls into
one of those two categories) then the applicable law is Human Rights Law.
Rejecting the extraterritorial application of HR treaties does not in any way
excuse a nation from respecting the human rights of the people of other
nations. You cannot set up any construct where you can simply conduct a
campaign using military force whenever and wherever you please, no questions
asked - there is no such thing as "superlegal" war.
To formulate this
claim from the high moral ground I claimed in the title - even when you act in
Self Defense, you owe the same duty to protect to every civilian you are likely
to affect that you owe to a citizen. If you fail in this duty, what you did was
wrong. It will remain wrong, no matter that you conclusively establish
that is *not unlawful* (if such an assertion can ever be conclusively proved). In the context of Obama & "signature strikes", a government being headed by a Nobel Peace
Prize laureate is expected to at least try to not do something as wrong as killing people - or is even
that too much to expect?
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NOTES POST HOC (but not procter
hoc):
I wrote the above piece while trying to make sense of the various
articles and opinions encountered in researching for the Jessup moot. I can
attempt to formulate some qualified answers now, but nothing more absolute. At
times this debate takes on an almost surreal quality. For instance, in reading
the opposing briefs in Al-Aulaqi vs. Obama et al, one literally feels oneself
swayed one way, then the other. (Maybe this is because I don’t have a clear and
definite opinion of my own on the matter. Or maybe, just maybe, because there
really is no clear answer.)
Try it yourself. Here is a man, arguing on behalf of his
son, whom the USA (admittedly with significant proof) alleges is a terrorist.
He wants the US government to be judicially enjoined from targeting or killing his
son. His point is that domestically his son is owed due process, and the USA has no basis under international law under
which to target him. And it is certainly hard to see how he (or rather the OFAC
& ACLU advocates arguing on his behalf) don’t have this substantially
right: domestically, can a secret targeting process based on secret criteria
and non-justiceable by virtue of its secret nature not be a violation of civil
liberties? Internationally, doesn’t the USA have to prove that there is in fact
a NIAC ongoing in the territory in question, in which the alleged terrorist is
a participant? Doesn’t it even then have to extend Common Art. 3 protections to
him – which still bars extrajudicial
execution? To put that in perspective – as the Al-Aulaqi Reply to Motion to
Dismiss brief says – can the government kill anyone it “deems a threat”, with the
reasons why it deemed you a threat remaining secret on the grounds of “national
security”, and NO external checks on this power?
On the other hand – as the government asks (and answers in the negative) – can the courts in a sovereign country enjoin the President and the military from using military force against a target they have deemed a threat to the security of the nation? To put it in perspective – can a terrorist sue your military for targeting him without first proving to the court that he is a terrorist, and even then have the courts supervise how you use force against him, or the standards whereby he was identified as a target?
On the other hand – as the government asks (and answers in the negative) – can the courts in a sovereign country enjoin the President and the military from using military force against a target they have deemed a threat to the security of the nation? To put it in perspective – can a terrorist sue your military for targeting him without first proving to the court that he is a terrorist, and even then have the courts supervise how you use force against him, or the standards whereby he was identified as a target?
These are, of course, attempts by highly skilled lawyers to caricature
the genuine points of the other side by making them appear so extreme as to be
ridiculous. The question Al-Aulaqi must answer is, given that there is proof
that your son is a terrorist, what safeguards is he really owed – and which of
those can you litigate over anyway?
The question to the government is, of course, what are your internal safeguards, and who is answerable to whom if
& when you get this wrong? (The Court eventually ruled that it had no power to enjoin the President in this respect, and threw out the suit. Note that this is a Procedural answer, not a Substantial one.)
Really, nobody is arguing that the power to act in self-defense is
absolute. (I mean, I know lots of Americans, and hawks everywhere, argue it. Hence
the opening premises. To argue that is an assertion of privilege, and the point
of international law is to keep countries from being a law unto themselves.) There
are, in fact, three relevant questions here: -
- What do
you have to prove before you can go kill someone?
- Who do
you have to prove it to?
- When do
you have to prove it? (Before trying to kill the guy, or after you’ve
actually done it?)
Those are questions about the mechanism of evaluation itself. Then
there’s the question about sanctioning authority – if it should be proved,
after the fact, that you got it wrong, what happens? Does somebody face
prosecution, and for what offence, and before what court or tribunal? Unsurprisingly,
available answers turn on the nature of the players involved.
- The person
being targeted is Anwar Al-Aulaqi, and nobody seriously doubts that he is
affiliated with AQAP, and genuinely a terrorist. No, it has not been
proven beyond reasonable doubt, but this is an international terrorist
organisation we’re dealing with, and there is a merited, pragmatic
argument for applying different standards there. But suppose it was, to
pick at random, Robin Williams? Can the government simply assert that he
is a terrorist, declare that it has secret evidence to that effect, and
kill him? What if it’s Nelson Mandela? And what about the bystanders
killed when your missile hit Hollywood / Johannesburg?
- This is the US
government under Obama. Suppose it was the Somalian government labeling
every other African a pirate and shooting them? Arguably, Somalia is at
war with pirates, and in any case there is solid legal basis for using
lethal force against pirates even outside of armed conflict. Would we take
their claim as seriously, or hesitate to act against them? Or suppose it
was USA under George ‘Dubya’ Bush – would we hesitate to characterise it
as irresponsible conduct by a hatful of trigger-happy Texan yahoos? Would
we not denounce it far sooner?
- It is the US
government before US courts. Mary Ellen O’Connell (like many others) openly
mentions war crimes prosecution of Americans – it’s dismissed as unlikely
to happen, but nobody calls it legally
untenable. Suppose it’s Sudan before the ICC – prosecution of a Head of State
/ high officials for grave breaches, even though the state refuses to
recognise court or prosecution and denies the allegations outright. Legally, there is no reason that
cannot be Obama tomorrow. Kenneth Anderson pointedly asks if it might in
fact be Obama’s Republican successor in office. Prosecutor v. Romney, anyone?
All of which goes to show, rather convincingly, that legality just
isn’t a fruitful frame here. I didn’t declare the earlier part a moral analysis
by coincidence. Anderson too chooses to frame the debate in terms of policy and
not legality. He is correct in saying that the policy filter is one of comity
and not sovereign equality. That is – like I said above, although from a
different perspective – the nature of the actor matters. We can point at what
we know to be right, and know to be wrong – but just as in questions of Proportionality,
it is difficult to actually establish or set a line in the sand. And all too
often a notable part of our answer is – I know how it looks, but it’s him doing it (and we trust him), or it’s being done to him (and we know he’s a bad guy). One
rigid, inflexible law cannot cover
all these terms, but law per se has
little value where it varies to accommodate different interests. Speaking for
myself, I am not a neutral spectator here – I have a stake, and a side I like,
and on the whole it’s still the American one. At least I can still file lawsuits against them in their own courts, and their
courts can take those up!
The law is actually clear. You can use lethal force - in an
armed conflict, only if you expect military benefit without disproportionate
civilian losses, and outside of armed conflict – if there is a clear threat,
and it is necessary (meaning unavoidable) to address it with lethal force. (This
last is where you address the duty you owe the terrorist’s wife – not that her
life has lesser value, but that there is no
other way to strike her husband except when we know he’s at home, and hence
no way to avoid harming her.) Whoever
it is you answer to, whenever it is
you answer to them, you prove that one or the other is true. If not, well,
you’re guilty of grave breaches of the law of war in the first case, and murder
simpliciter in the second. Legally you’re as liable to prosecution
as Al-Bashir or Timothy McVeigh.
This doesn’t necessarily mean that prosecuting you is the right thing to do, because terrorism has
shown us that our laws and definitions are inadequate – and terrorists are
skilled at using our own systems against us. For instance, who says Due Process
must go through the courts? (This is, in effect, precisely what the White House argues in Al-Awlaki's case - that the President has followed Due Process, just that it's a secret one.) You may well need to use lethal force outside these two categories in bona fide exercise of Self-Defense. The
challenge is to let you (whom we trust) do that against them (who we "know" are
bad guys), without hampering the system’s ability to stop that other guy (who we
don’t trust) from doing the same thing to those people (who we "know" are good
guys). In case it isn't apparent why I put "know" in quotes here, allow me to reference Ambrose Bierce on the nature of knowledge & certainty: cogito cogito, ergo cogito sum.
We already know – law doesn’t work that way. To bring this back to the
first premise I started with, maybe we could look for a way to serve
substantial justice, notwithstanding the unwieldy mechanism of the law. Let a
nation be able to say, “here is sigma benefit to civilisation” – then, at least, we would have grounds for condoning the unlawful behaviour involved.
W.r.t. 'Pragmatic relaxation' that you speak of; we (India) don't seem reluctant when it comes to domestic troubles, Naxalites/ Ulfas/ Kashmiris? Or so some newsblogs claim.
ReplyDeleteLegally speaking, the things a State can do to its own citizens (especially in a state of Emergency, & technically the AFSPA is emergency legislation) are a whole other kettle of fish from what I was talking about - respect for the rights of OTHER states' citizens when you are NOT at war with that state.
DeleteYour observation is still true, though. One of those paradoxes of Indian foreign policy is that EVERY Indian politician is the most shrewd pragmatist when it comes to domestic constituencies, yet is magically transmuted to some kind of blind idealist with respect to international affairs. Angrez chale gaye, lekin...