Total Pageviews

Saturday, April 28, 2012

An Indian Analysis for the Drone Summit

In Re: Targeted Killings, Armed Conflict & International Law


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.


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?

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?

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.

  1. 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?
  2. 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?
  3. 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. 


  1. 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.

    1. Legally 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.

      Your 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...