I’m now responding somewhat belatedly to the contentious debate that occurred a couple Saturdays ago between Benjamin Wittes of Lawfare and Mary Ellen O’Connell of Notre Dame law school. In the debate, O’Connell argues that most of the Obama administration’s drone strikes in Pakistan have been unlawful while Wittes argues the opposite. Wittes posted video of the debate here and additional commentary here. The debate continues, as Human Rights Watch has weighed in, with responses by Wittes here and Kevin Jon Heller here.
The Debate
O’Connell and Wittes agree that targeted killings can be lawful in Afghanistan, though it seems they disagree on who can be targeted, or at least how one can make such a determination. O’Connell asserts that a state of armed conflict exists in Afghanistan, so International Humanitarian Law (IHL) applies, and thus, citing Philip Alston’s report to the UNHRC from earlier this year, armed forces, organized armed groups supporting those armed forces, and individuals participating directly in combat can be targeted, as long as the targeting adheres to the principles of necessity and proportionality. She also notes that the Red Cross recently created a new category for individuals who do not consistently participate in hostilities.
Wittes traverses a somewhat peculiar pathway to arrive at a similar but seemingly more permissive conclusion. He examines the U.S. court rulings on who can be legally detained under the Authorization for Use of Military Force (AUMF), arguing that whoever can be detained can also be targeted. Thus, per his logic, and per U.S. courts’ detention rulings, individuals who “are part of or substantially supporting enemy forces” can be targeted. He notes that there is still ambiguity about what level of independent support for enemy forces justifies detention, so his scope could conceivably encompass, as I interpret it, bomb-makers and financiers, while O’Connell’s does not. I give this round to O’Connell, for Wittes’ conflation of detention and targeted killing, and his reliance on unnamed U.S. court rulings, is a strange route to take. I refer you to Kevin Jon Heller for further criticism.
When the debate turns to Pakistan, things get especially contentious. Do strikes in Pakistan violate Pakistan’s sovereignty? O’Connell says yes, as Pakistan has not granted the U.S. permission to invade its territory. Wittes says we can’t possibly know that since we don’t have access to classified information. O’Connell says we do have public information that, for example, Zardari has not wanted us to target the Haqqani network. It’s tempting to side with O’Connell. Pakistan’s opposition to air strikes could not be more explicit. From The Hindu:
“The International Security Assistance Force [in Afghanistan] and NATO have been asked not to participate in any military action that violates the United Nations mandate and infringes upon Pakistan’s sovereignty. In the absence of immediate corrective measures, Pakistan will be constrained to consider response options,” a Foreign Office statement said while protesting the strikes inside its territory; purportedly in hot pursuit of the Haqqani network in North Waziristan.
Maintaining that such attacks by manned aircraft on its territory infringed upon Pakistan’s sovereignty, the Foreign Office argued that these incidents are a clear violation and breach of the U.N. mandate under which ISAF operates”. According to Pakistan, the U.N. mandate “terminates/finishes” at the Afghanistan border and there were no agreed rules for hot pursuit as suggested by NATO/ISAF. “Any impression to the contrary is not factually correct. Such violations are unacceptable.”
But I’ll acknowledge the possibility of a secret agreement that hasn’t been publicly disclosed, with the caveat that it remains sensible to discuss the law based on the facts currently available to us. Otherwise, we deprive ourselves of having conversations about any such cases, for there will always be the possibility of a secret agreement about which the public is unaware.
But can the U.S. claim a right to carry out targeted strikes under the inherent right of self-defense and Article 51 of the UN Charter? This was the sole international legal justification given by Harold Koh in his speech earlier this year at the American Society of International Law. Article 51 states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
O’Connell cites several ICJ rulings in which the court interpreted Article 51 in restrictive terms. Wittes criticizes her for citing the ICJ since the U.S. does not accept the court’s compulsory jurisdiction. Then they began to debate whether or not it is appropriate to cite ICJ rulings (a debate that has graced this blog’s comments section int the past). And though they don’t mention it, one interesting aspect of the ICJ is Article 59 of the ICJ statute: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” So the ICJ’s interpretation of the law in one case is not meant to bind other states in future cases. But, as O’Connell notes, she cites the ICJ because, as a body composed of legal experts, it is a legitimate source to which one can turn for valid interpretations of international law. Seems sensible to me.
So Wittes must argue that targeted strikes are necessary, as the principle of necessity binds the inherent right of self-defense. O’Connell says strikes are not necessary and references the 2008 RAND study on terrorism that states that the most effective ways to deal with terrorism are through police action and integrating terrorists into political processes. Wittes doesn’t believe this is feasible in Pakistan or Yemen, where the U.S. is also carrying out targeted strikes. He argues that if a state is unwilling or unable to take action, the U.S. should be allowed to go in. If the U.S. stops at the border, allowing militants to cross into Pakistan and use the country’s border as a shield, the U.S. would be left with no viable way to deal with the threat. He also argues that no state in history, that he knows of, would realistically consider respecting national borders in the way that O’Connell prescribes. O’Connell then argues that this is exactly what we were doing in Yemen before 2000: cooperating with Yemen on law enforcement, our only legal option, according to O’Connell, in areas where no armed conflict is occurring.
Necessity is always a complex issue. It’s the area where law and security strategy are most intertwined. If lethal force is necessary for national security, it’s legal (assuming all other factors – proportionality, distinction, etc. – are accounted for). If not, it’s illegal. As far as I can tell, the question was not definitively settled, though the 2008 RAND study is fairly damning to Wittes’ case.
The Debate About the Implications of the Debate
Overall, though, Wittes seems more interested in an entirely different subject. He attempted and succeeded in shifting the debate to questions such as: What is the responsibility of academics who believe the president is engaging in unlawful acts? Must such academics argue for the president’s impeachment? Or is it enough to advocate, as O’Connell does, that, moving forward, the president bring his policy in line with the law? And also, if one accepts that Obama has unlawfully ordered the killing of hundreds of people, is the moniker “serial killer” appropriate for our current president? Wittes asks these questions, he says, to expose the radicalism of O’Connell’s viewpoint.
But the phrase “serial killer” does nothing to help us understand the situation. In 2005, the FBI held a symposium in which participants grappled with the definitional ambiguities of the term. The report on the symposium states:
In the past thirty years, multiple definitions of serial murder have been used by law enforcement, clinicians, academia, and researchers. While these definitions do share several common themes, they differ on specific requirements, such as the number of murders involved, the types of motivation, and the temporal aspects of the murders. To address these discrepancies, attendees at the Serial Murder Symposium examined the variations in order to develop a single definition for serial murder…
There has been at least one attempt to formalize a definition of serial murder through legislation. In 1998, a federal law was passed by the United States Congress, titled: Protection of Children from Sexual Predator Act of 1998 (Title 18, United States Code, Chapter 51, and Section 1111). This law includes a definition of serial killings:
The term ‘serial killings’ means a series of three or more killings, not less than one of which was committed within the United States, having common characteristics such as to suggest the reasonable possibility that the crimes were committed by the same actor or actors.
So Obama would not qualify as a serial killer under the definition in the Protection of Children from Sexual Predator Act because none of the killings occurred on U.S. soil. Other definitions include motivation as a factor, which would probably also exclude Obama. But some more inclusive definitions may encompass Obama. The term “serial killer” is incredibly imprecise, and only muddies our understanding of the situation.
Furthermore, O’Connell has a valid reason for not calling for impeachment:
I do not hold out hope that there will be prosecutions for extrajudicial killing. My more immediate concern and purpose is that I hope all of us will leave this room more committed to act. It’s to stop future killing. We know that many countries have had their leadership commit very serious violations of international law with no accountability, the human rights community, international law community is committed to trying to change that, but we’ve had a setback over these last years and I don’t expect it to happen. So I don’t see any real purpose in arguing about those matters. I’m interested in going forward and getting our country into compliance with international law, and we can talk about accountability later.
But this stance, of course, exposes her to attacks that political sympathies motivate her restraint. From Kenneth Anderson:
So this is my concern: If it is politically unrealistic to consider going after Barack Obama and Harold Koh and Leon Panetta and Joe Biden, et al., and that is the reason for not pursuing criminal sanctions that follow upon criminality, well, one has to wonder when it will be politically realistic. It seems hard not to think that for many who agree with the criminality view, that moment comes when there is no longer a Barack Obama at the helm, no longer beloved Harold Koh at DOS, and instead President Palin has concluded on the basis of the acts and written opinions of the previous administration that Al Qaeda has shifted, under relentless pressure by the Biden Brigades of UAVS and JSOC and CIA teams on the ground, to new grounds in lightly governed territory or an openly hostile state. Candidate Obama said in March 2008 that he would follow AQ to Yemen or Somalia or anywhere else they sought haven; he repeated it many times in office, and as we all found out, boy-oh-boy did he ever mean it.
But now that President Palin and Vice-President Jindal are at the helm, all of a sudden many people find the situation somehow … different. It all seems so … criminal. The alleged criminals all seem so … prosecutable or indictable, somewhere, somehow. Despite angry assertions that the policies are identical, a wave of law scholars produce an endless number of scholarly tomes and declarations, promptly submitted by the ACLU and CCR to courts everywhere they can find as earnest amicus briefs, that it really is different. It is very hard for me to see, as a pure political matter in the demimonde of the activist-scholar, international law advocacy community, that “politically realistic” is not simply another way of saying, “Republican administration.”
But O’Connell is right. The public doesn’t support impeaching Obama. Only 39% of Republicans support impeachment, and I suspect much of this is due to domestic policies rather than targeted killings. In contrast, a majority of Americans believed Congress should consider impeaching Bush. Public support for impeaching Clinton, who was of course actually impeached, was around 36%. So around a third of Americans supported impeaching Cinton, and now only a third of Republicans support impeaching Obama. In other words, O’Connell is right, it isn’t going to happen, so it might be sensible to pursue attainable objectives.
