Drone Strikes: A new international norm?

(Jeff Redfern - fired a Hellfire by mistake, became a legend*)

There's much ado about drones / UAVs / RPAs at the moment, especially as Americans are engaged in an interesting debate about whether the US Government killing American citizens without apparent due process, after the killings of Anwar Al-Awlaki and Samir Kahn in Yemen in late September. Indeed, there's an interesting piece on the leaked legal advice in today's New York Times which I'll come back to in the next couple of days. For background, this Economist piece is good.

The NYT has also published an interesting article on worldwide drone proliferation, which lists the US, the UK and Israel as the three states to date which have used drones for lethal attacks (US in at least in Iraq, Afghanistan, Pakistan and Yemen; UK in Afghanistan; Israel in Gaza and Lebanon), with many more States interested in acquiring the capability. Indeed, General Atomics Aeronautical (GA-ASI) have a nice website for all you aspiring Jeff Redferns out there...

But what caught my eye was this from Dennis M. Gormley, a senior research fellow at the University of Pittsburgh who the NYT quoted as: 

"“The problem is that we’re creating an international norm” — asserting the right to strike preemptively against those we suspect of planning attacks"

An international norm? Interesting, sounds like international law. As a claim, how does it stack up?

(The Peace Palace, home of the ICJ. It's architecturally absurd, but remarkable. Do go!) 

Sources of International Law

Article 38(1) of the Statute of the International Court of Justice is widely accepted as the authoritative statement of the sources of international law. These are:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Which is sufficiently broad to cover just about anything. However, "an international norm" clearly falls within the ambit of Art 38(1)(c), and if there's sufficient State Practice, then hey presto we've created international law.

So it that's the theory, what does this mean in this case?

Probably not much. At least, it shouldn't mean much, as what the US is doing with it's drone strikes should not be random acts of violence against its politico-military opponents, but as permissible and proportional uses of force under LOAC. Indeed, far from being random, legitimate uses of force under LOAC, will, as usual require:

 - a conflict nexus as either International Armed Conflict or Non-International Armed Conflict;
 - military necessity,
 - humanity,
 - proportionality and
 - the ability to distinguish between military targets and civilians.

None of this changes with the use of drones / UAVs / RPAs; the rules are the same as they always were.

(Preventative warfare? Not big, clever or legal.)

What speaks volumes is the second half of Gormley's quote:

"asserting the right to strike preemptively against those we suspect of planning attacks"

I'm not at all certain the Obama Administration has reverted to the notion of preventative warfare that Bush (43) Administration advanced (to near-universal opprobrium) in 2002 and 2006. If Gormley were to show that this was the case, then the US would again be out on their own (and not in a good way). As far the claim that drones allow for the preemptive use of force outside of armed conflict because they are drones, this is risible: drone attacks are governed by the existing legal framework.

Moreover, any suggestion that drone attacks absent a conflict nexus are governed by anything other than International Human Rights Law (IHRL), which demands the use of minimum force at all times, and only allows for the use of lethal force in the exceptional cases of a clear and immediate threat to the lives of others which cannot be stopped in any other way, is also simply wrong. Quite how an IHRL-compliant lethal use of force by a drone could be justified is an interesting mental exercise, but it would have to be a circumstance in which an individual was imminently threatening the lives of others, that there was no alternative to use force, and the drone was the only option. The challenge here is that how would you know that from a drone alone? Hard to see, but the best that can be said is that it can't be excluded that there could be (extreme) circumstances in which IHRL-compliant drone attacks could be legal, but the onus will be on the attacker to demonstrate that such an attack was legal.  

But let's be clear, there is no new law here - drone attacks are more than adequately governed by the existing use of force framework, and notions of "preventative war" were - and remains - illegal. 

* But only in Doonesbury.

Does nationality matter in drone strikes?

 (Should owning one of these exempt you from a CIA drone strike?)

It appears that as well as Anwar al-Awlaki, the drone strike that killed him also killed Samir Khan, a US citizen who was responsible for producing Al Qaeda in the Arabian Peninsula (AQAP) Inspire magazine. It is also reported that Ibrahim Hassan al-Asiri, AQAP's master bomb-maker was also killed in the same attack. Does it make any difference that al-Asiri was a Saudi, rather than a United States national?

As a matter of international law - and I am not in a position to comment on the position under US domestic law - I can't see that nationality is the problem, (or indeed, even relevant) to the question of the legality of the attack. The key element point of LOAC is either is one of combatant status in an International Armed Conflict* (IAC), or either having a "Continuous Combat Function" or Directly Participating in Hostilities in an Non-International Armed Conflict** (NIAC). Discrimination between combatants and non-combatants has is customary international law binding on all States. If there is no armed conflict taking place, then LOAC does not apply, and the use of force must be justified under International Human Rights Law (IHRL).

So to answer the first question, in international law, the nationality of the targets is immaterial: what matters is their status as combatants, or if this is a law enforcement situation, then their nationality is irrelevant to the crimes. Hence, US nationality is not per se a bar to being killed by a CIA drone strike.

Therefore, the legal basis of the attack that killed al-Awlaki, Khan and (reportedly) al-Asiri has two hurdles to cross. First, what was their combatant status or otherwise? Second, did the attack itself meet the proportionality, discrimination and military benefit requirements under the jus in bello tests. (In policy terms, there should also be a third test: "Is this a good idea?", but that's not explicitly a legal question.)

(A very interesting study, though one not without controversy)

What was the combatant status of al-Awlaki, Khan and al-Asiri?

The analysis of the combatant status (or not) of these three men begins with the characterisation of the conflict. Three are possible:

- There is an IAC underway between Al Qaeda and the United States, and that AQAP is an active constituent of this IAC in the ungoverned spaces of Yemen.  

- There is a NIAC underway in Yemen, in which AQAP is in rebellion against the legitimate Government, and that the US was acting in collective self-defence at the request of the Yemeni Government. 

- There is no armed conflict in Yemen, but that AQAP are operating as a terrorist group, and that this was a law enforcement operation in which there was no other way to defeat an immediate threat to life other than by killing al-Awlaki, Khan and al-Asiri. 

 (Chatham House, centre of much common sense and good work.)

What sort of conflict is actually going on?

The characterisation of the conflict is a key element in the legality of the strike. And this is why Chatham House's forthcoming study on the characterisation of conflict is so important - it's central to the targeting decisions of what / who can you hit, and when can you do it? Let's look at the three options in turn.   

(Aftermath of an armed attack: USS COLE towed from Aden)

International Armed Conflict?

The US could note that it had been attacked by AQ in Yemen in the attack on the USS COLE on 12 Oct 2000 (nearly a full year before the US 9/11 attacks), and that since that time, AQ, in the form of AQAP has been engaged in an IAC against the US from bases in Yemen, which Yemen has been unwilling or unable to suppress, and therefore the US has the right to self-defence against these attacks. 

This argument is considerably strengthened if it counts AQAP as an element of AQ, as a number of small scale terrorist attacks would not meet the threshold for armed conflict themselves, though a larger number of such attacks can. In recent years AQAP has been one of the most dangerous AQ elements, with the "Underwear Bomber" Umar Farouk Abdulmutallab's failed attack on 25 Dec 2009, and the Toner Cartridge Bomb Plot discovered and disrupted in October 2010. Moreover AQAP's leading ideologue - Anwar al-Awlaki was also cited by Roshonara Choudry (jailed in London in 2010 for attempting to kill the British MP Stephen Timms) as a key influence. 

However, the legal impact of declaring that the US in engaged in an IAC with AQ/AQAP would be that the US would have to accept that AQAP was a belligerent, meaning that any AQAP prisoners would have to have POW status until such time as an Article 5 Tribunal (so-named because it comes from Article 5, Third Geneva Convention 1949) has determined whether or not they were entitled to it. And in any event, even if such a Tribunal were to deem that AQAP prisoners were not POWs (e.g. they were mercenaries), then they are still covered by the basic guarantees of Art 75 of AP I as detailed in Art 45(3) of AP I. This is not something that the US has, to date, accepted (see: Guantanamo Bay).

Non-International Armed Conflict?

Under Art 1(1) of AP II, NIAC occurs between the:

... armed forces [of a High Contracting Party] and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Per the ICRC Commentary the insurgent group needs sufficient control of territory in order to be able to implement the Protocol's requirements. It is possible that in south eastern Yemen AQAP does indeed control the required territory, and that in the process it could do so. Under this characterisation, Yemen could request US assistance, and provided that there was sufficient evidence to conclude that these individuals were "direct[ly] participating in hoslities" then they could be attacked, subject to the usual jus in bello tests. But it is hard to see this as the best characterisation of the conflict, not least because of the explicitly international - and, indeed, US-specific - orientation of many of AQAP's operations.

  

(Others who have had trouble differentiating between law enforcement and the use of force...)

Criminals subject to a Law Enforcement Operation?

There are significant policy attractions to characterising AQAP as a criminal gang, and addressing the problem as a law enforcement problem, and not a military one - and not the least of which is that criminals are criminals, and that the US would deny AQAP the kudos of having a legitimate military struggle. Kevin Jon Heller of the University of Melbourne over on Opinio Juris thinks that what is going on against AQAP is "not an armed conflict at all".

It is certainly true that AQAP members and affiliates have committed acts that US and UK governments have classed as criminal, as the life sentence handed down to Roshonara Choudry in 2010 for attempting to kill the British MP Stephen Timms after reportedly being radicalised by Awlaki's video sermons, and the forthcoming trial of Umar Farouk Abdulmutallab demonstrate. But this glosses over a problem: in trying them as criminals tied to AQAP, the US and UK Governments are explicitly making the case that this is not a conflict, because if it was, these individuals would either be combatants, or the Governments involved would have to show why they were not - and why they should therefore be facing criminal trials. As combatants, let us be clear, they could still face war crimes trials for attempted murder - it's difficult to see either Northwest Airlines Flight 253 or Stephen Timms MP as legitimate targets.

In characterising these as criminal acts, and hence a law enforcement problem, the UK and US Governments raise a significant problem for the use of force, inasmuch as it significantly raises the bar for the use of force, as LOAC does not apply, leaving any use of force governed by IHRL rules. Though the right to life is clearly central to the exercise of the other rights, IHRL does not make the use of lethal force illegal in policing operations as some argue, but in all cases it will require the minimum use of force possible at all times, and that lethal force only be used in circumstances where there is no other method of preventing an immediate threat to life. In practical terms, this is given as the legal basis for killing suicide bombers (or suspected ones: this was the case in the case of Jean Charles de Menezes in London in 2005). Thus, though lethal force is allowed in some cases under IHRL, it demands a high evidential bar to be cleared of the imminence of the threat to life posed by those who are about to be killed.  

What was the applicable law in the view of the US in this case?
We don't know yet, as this hasn't been released (and if it has please let me know). It should be, for transparency's sake. However, with that large caveat in place, the operationally easiest thing would be for the US to decide that the correct characterisation of the conflict is that it is an IAC, such that they could target Awlaki et al as combatants at any time or place - which is where Jack L. Goldsmith (a former assistant attorney general in the George W. Bush) comes in.

But if true, what is troubling is the notion that there are two characterisations of the conflict - one for the leadership as an IAC or a NIAC - and one for the footsoldiers like Abdulmutallab, both of which would work in our favour. This feels like a legal nonsense, and it needs to be cleared up.

 (NB: Reapers don't just carry missiles - this one has 2 x GBU-12 Paveway II 500lb LGBs, too.)

So what?
At one level, many - indeed most westerners - may shrug their collective shoulders and conclude that Awlaki et al:

- These were bad guys;
- Thought that they were fighting a war and got killed by their opponents,
- Everyone who didn't agree with their worldview is safer (and probably better off)
- Besides, frankly these guys had it coming to them

This makes legal arguments at once irrelevant, and, to the extent that they constrain similar action in future, arguably dangerous. Therefore, there is not a particular problem in killing them, and we should be good with that. From a strictly realist / utlitarian viewpoint, there may be something to this position.

But as an international legal proposition, it is very dangerous, and for (at least) two reasons. 

First, knowingly creating a legal black hole to get around the law is a flagrant violation of the central tenets of the rule of law, and is always fraught with the opportunities for abuse -  see Guantanamo, CIA black sites - precisely because it makes the accountability of the State that the rule of law is based on virtually impossible. 

Second, being able to vary the legal characterisation of a conflict depending on who you're targeting is nonsense; unless there is a clear difference between the types of conflict that Awlaki and Abdulmutallab were involved in, it is nonsensical to use radically different legal characterisations of the conflict in order to make the use of force easier, whilst retaining the criminal option when you want to use it. 

For those who doubt either proposition, remember that international law is fundamentally about reciprocity. How would we feel about these propositions being applied to us by another power?

And for the record, I think the conflict with AQAP could be an IAC (though this raises interesting questions about POW status), could be a NIAC (though this raises difficulties about the relationship with Yemen, and whether AQAP actually controls any territory) or (my personal preference) it could be criminality below the level of a NIAC that requires police action - which raises all sorts of other questions over the legality of killing Awlaki et al. 

But what it can't be is more than one at once.

* See Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of the First Additional Protocol of 1977 (AP I) for the definition of a combatant in an IAC. Article 50 of AP I defines a civilian, and Article 48 of AP I restates the rule that military authorities shall direct their operations only against military objectives. 

**  See Article 13(3) of the Second Additional Protocol to the Geneva Conventions 1977.

Another nail in the coffin

(See you in court.)

.. of Blair and Bush pretending that they ever actually intended to follow the international law when it came to Iraq. From tomorrow's Guardian, with the wonderful Philippe Sands prominent again.

I'll write more soon, I promise - been rather swamped with work.

More on Bin Laden's Death

(Another critique)

"Tobbes, it's the right answer for the wrong legal reasoning."

Story of my life.

I'm just travelling, but my critiquer's view is that yesterday's article reflects the US legal approach, and that there is a better approach based around bin Laden as an "unprivileged belligerent". But the problem that we run into revolves around the legal status of non-state actors in non-international armed conflicts.

I'll post more when I've had a chance to have a chat and a think.

Was killing Osama bin Laden legal?

(Osama bin Laden, now the subject of more conspiracy theories than Elvis.)

I write this after a delightful evening discussing this subject with some students at Bennington College, to whom and in particular to Professor Eileen Scully, I'm very grateful - it was good fun. Before we start, I should stress that this post considers only whether the US action in killing Osama bin Laden (OBL*) was legal, and not whether or not it was a good idea from a policy perspective.

To do this, we need to break the question into two elements: 

Question 1: Was it legal to kill bin Laden at all? 

Question 2: If so, was it legal to kill him in Pakistan?

Q1: Was OBL a Combatant?
The first consideration that must be satisified is whether OBL was a combatant in an armed conflict, in order to invoke the Law of Armed Conflict (LOAC). Without this nexus of conflict, the targeted killing of OBL would be illegal - murder.

(An armed attack. RIP.)

Fortunately, determining that OBL was involved in a conflict of some sort after his 1996 Declaration of War on the United States, and that 9/11 attacks is reasonably straightforward, though the kind of armed conflict is open to debate. LOAC recognises two categories of conflict, each with different definitions of combatants: International Armed Conflicts governed by the 1st Additional Protocol  to the Geneva Conventions (AP I, 1977), and Non-International Armed Conflicts governed by the 2nd Additional Protocol to the Geneva Conventions (AP II, 1977). 

Combatant Status under AP I - International Armed Conflict

War between States represents the classical form, preferably with armies of two or more competing sides fighting pitched battles, usually resulting in clear winners and losers. Under the formulation, both sides began the war holding territory, and from the 18th Century onwards, armies generally wore uniforms and had a clearly discernible chain of command. Wars of this sort still take place, of course - the initial invasion of Iraq in 2003 is a good approximation of the classical case, in which one force overwhelms and occupies another country, and imposes direct rule for a period. In this sense, it would've looked familiar to European diplomats negotiating the Peace of Westphalia in 1648. 

Who is a combatant in these interstate conflicts? Simply, anyone who is not in the military as defined in Article 43 of AP I. And if you're not a combatant you must initially at least be treated as a civilian, and would therefore be immune from direct attack. But being a combatant is a privileged status itself - it means that you're entitled to PoW Status, something explicitly denied to spies (AP I, Article 46) and mercenaries (AP I, Article 47).

The major attraction for lawyers is that combatants who are not prisoners, shipwrecked or otherwise hors d'combat are always specifically targetable. Any attack must meet the test of distinction, military advantage and proportionality, but this is true of all attacks: the important point is that in an international armed conflict the status of the combatant is constant for long periods of time.

Combatant Status under AP II - Non-International Armed Conflict

By contrast, the (much shorter) AP II is specific for those internal conflicts that rise above the minima of 

"internal disturbances and tensions, such as riots, isolated and sporadic acts of violence" 

described in Art 1(2) of AP II. AP II recognises that in many civil wars and rebellions, the rebels are frequently part-time combatants, and therefore AP II details in Art 13(3) that 

"Civilians shall enjoy th[is] protection ... unless and for such time as they take a direct part in hostilities."

In other words, in the limiting case, the point at which a guerilla puts down her weapon, she loses combatant status and reverts to civilian status. In doing so, she cannot be targeted and therefore cannot be legally killed. 

(An interesting book. One for a future commentary.) 

As a result, determining what constitutes direct participation in hostilities (DPH) is critical, and has resulted in a significant ICRC study published in 2009. (This study is not without controversy, but Art. 13(3) is clear enough for our purposes.)

Was OBL a combatant? Did he take a direct participant in hosilities?
It's clear that depending on the extent which OBL was involved in command and control (C2) and AQ fundraising (presumably determined by intelligence) one could make a case for that though he appears to have been holed in his Abbottabad Compound, he was involved in directing, funding and inciting attacks on western targets. Indeed, assuming that the courier network wasn't there exclusively to collect take-out pizzas, it is pretty likely that OBL had a direct role in hostilities.

If proved, this role would confirm OBL's status as a combatant in AP I, and for the period in which he was undertaking these activities, a combatant under AP II. As a result, I assess that given sufficient evidence, it could reasonably conclude that OBL was a combatant, and that irrespective of your characterisation of the type of conflict, OBL could be a legitimate target.

Naturally, once OBL became a legitimate target, any attack on him would need to meet the normal criteria of discrimination of civilians, military advantage and proportionality before it could be considered legal. And the reports that President Obama elected to send in ground forces in a much riskier attack rather than simply bombing the compound strongly suggests to me that these criteria were being very carefully weighed in the US decision-making process, and that the US elected to expose their forces to greater risk to ensure that the attack itself was proportionate, precise and legal. Good for them.

(Pakistani Foreign Minister Salman Bashir, Harrumpher-in-Chief.)

Q2: Was it legal to kill OBL in Pakistan?
With Pakistani Foreign Minister Salman Bashir, his diplomats and security leaders harrumphing that killing OBL in Pakistan 'violated Pakistani sovereignty' and was by implication illegal, it is important to assess these claims.

The first point is that there is no doubt that Pakistan's sovereignty was violated by US forces; they flew in in the middle of the night, didn't stop to have their passports stamped, engaged in a 40 minute firefight, killed a number of people, collected (ie, stole) a large amount of documents and electronic equipment, jumped into their helicopters (again, without having their passports stamped leaving Pakistan) and flew away into the night back to Afghanistan. This is a pretty major violation of Pakistani sovereignty.

But sovereignty is not absolute.

Pakistan has an obligation - in common with all other States - to ensure that its' territory is not used by non-State actors for the planning and commissioning of illegal activities, including terrorism. If it does not, there are two effects: first, under Article 8 of the International Law Commission's Draft Articles on State Responsibility, the State takes legal responsibility for these actions, and second, the State that is threatened can invoke the doctrine of "Self-Help" to remove the threat IF ALL OTHER AVENUES HAVE FAILED.**

Given that the Government of Pakistan in general - and elements of the Pakistani public sector, notably the military and the ISI spy agency in particular - have had a "complex" relationship with salafist jihadis since the 1980s (ranging from sponsorship, funding and training to full-blown conflict against them depending on the time, place and level of threat to Pakistan), it would be unsurprising if the US were to conclude that Pakistan was either unwilling or unable to confront OBL in his Abbottabad compound. Worse, given that the Pakistani security network was either incompetent or colluding with OBL, the US could not have had any confidence that simply providing a name and address would result in a successful Pakistani arrest operation. Consequently, the temporary violation of Pakistani sovereignty, whilst non-trival, was in my view justified, and that therefore the attack was legal as legitimate self-help.

Overall, then, on the narrow question of whether OBL was a legitimate target I would argue that he probably was, and that the manner in which the US conducted the operation in Pakistan was also legal.

*Yes, I know the other transliteration is Usama and therefore UBL. I prefer Osama and OBL, and it's my blog. Points? Questions? I thank you.

**Ang, this is for you. We can argue about self-help later.

Legality of pre-emption is back....

(Prof. Philippe Sands QC: brilliant, but in this case, I respectfully (and uncomfortably) disagree. A bit.)

Legality of pre-emption is back - and as usual, no-one can agree. The Guardian's coverage is pretty sensible, and I'll come to the substance of the argument over whether allied air forces in Libya can continue to attack Gadaffi's ground forces within the terms of UNSCR 1973 in a minute.

But first can we just cherish the fact that we're having this debate at all? The notion that abstruse debates about the legality of the use of force are now taking place in the press at all is wonderful, and a testament to the work of people like Professor Sands, Professor Francoise Hampson, Professor Elizabeth Wilmshurst CMG, and Professor Charles Garraway in making the role of the law in the use of force so politically important. Thank-you all - it is a wonderful step forward.

Right: Pre-Emption.

There is a long-running argument amongst international lawyers over whether or not you can act pre-emptively in self-defence. In practice, most of the argument over pre-emptive action (more properly, "anticipatory self-defence") comes down to a ferocious debate over which side of a fence are you on: does a State have to absorb the enemy's first strike, or can it blunt it by attacking a State that is in the final stages of launching an attack?

(1967 Pre-emption, Israeli style: Egyptian AF transports destroyed.)

The classic case is the 1967 Six Day War, in which the Israeli Defence Force mounted a pre-emptive attack on Egypt, believing that Egyptian President Nasser having evicted the UN Emergency Force from Sinai and having closed the Straits of Tiran was about to invade Israel. This led to decisive Israeli victories against Egypt, Syria and Jordan, with Israel occupying the Sinai Peninsula, East Jerusalem and the West Bank, and the Golan Heights. Militarily, it was magnificent performance, but legally it was a shambles: the evidence today is that Nasser didn't intend to attack at all, but was posturing for domestic support.

Oops.

Which is why I put myself in the camp that says you have to in effect ride the first punch before counter-attacking (and this could just be the first artillery rounds crossing the border). And those lawyers who favour the right to pre-empt are almost exclusively in the camp that recognises the danger that a broad power of pre-emption would grant - namely, that the greater the margin of appreciation given to those using their right to "anticipatory self defence", the more likely you are to provide a charter for the unbridled use of force.

(Oh dear.)

This is where the Bush Administration's US National Security Strategy of 2002 and 2006 went so far off the rails: it articulated a doctrine of "pre-emptive warfare". At one level, this takes anticipatory self-defence to the logical conclusion: if something could become a threat, it'll be quicker and easier to deal with it now, rather than later.

This is probably true, but it somewhat misses the point that the use of force in such a situation was rendered completely illegal by the passage of Art 2(4) of the UN Charter. In other words, the US National Security Strategies of 2002 and 2006 were in fact premised on the Bush Administration's willingness to explicitly break international law.

 (One opposed to more billboards.)

Libyan So What?

Prof. Sands' point that pre-emption is a slippery slope is absolutely correct. But I take issue with this quote in the Guardian:

"It is difficult in international law to argue for a pre-emptive use of force to protect civilians from a possible threat that might arise in the future. We don't know if there is evidence to show that a failure to attack Ghadaffi's forces would lead to a regrouping that would lead in turn to attacks on civilians."

I would suggest that to the contrary there is 42 years' worth of evidence that Gaddafi's forces have led a more (and generally rather less than) benign reign of terror over his country. This to me leads me to an expansive understanding of the powers conferred to the coalition of the willing by the UN, and with it, the conclusion that Gaddafi forces are being used to oppress civilians, and therefore that attacking them at a time and place of the allied air forces' choosing probably meets the requirements of UNSCR 1973 OP4. As such, my disagreement with Prof. Sands is about nuance, not the law specifically.

But Prof. Sands broader point must be right: if not yet, then pretty soon the western air forces are going to be testing the outer boundaries of UNSCR 1973. Accepting as I do, Malcolm Shaw QC's point that these boundaries are elastic, they are not infinitely so. So whilst hoping that the Gaddafi regime collapses before we're faced with the problem of exceeding the powers granted, the correct thing if rebel ground forces cannot overthrow the Gaddafi regime alone, is to return to the UN Security Council for increased powers if that is required. I'll look at how and what these powers would look like in a future post.

When is intervention not Intervention?

 (If invited, this is not the intervention force you're looking for.)

Regular readers of this blog* will know that I revere the UN Charter. And "revere" is not too strong a word, as international law has gained some of the status of a secular religion; indeed, like most religions the legal fraternity has its fair share of fundamentalists. But to stretch the biblical metaphor to breaking point, the UN Charter reflects its convoluted negotiation process, and like The Bible, the Charter has lots of internal tensions / contradictions. 

 (Blue book fundamentalism starts here)

The interplay between the Charter's Preamble on the Human Rights and Article 2(7)  on non-interference in the internal affairs of sovereign States illustrates these tensions perfectly. The Preamble talks of

"reaffirm[ing] faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women"

and Article 2(7) says in part:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State … but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

There is clearly tension – when does protection of human rights trump non-intervention? If so, when and under what circumstances, and with what protections?

So how does this work in the real world?

 Pearl Square, Manama
(Note to editors: This has not been facilitated by a foreign non-intervening intervention.)

Bahrain

On Monday, 1000 Saudi soldiers togetherwith 150 armoured personnel carriers and 500 UAE policemen arrived in Bahrain, at the request of the Bahraini Government, as that Government believes it requires reinforcement to quell the pro-democracy movement that has blossomed in the "Arab spring". Combined with yesterday's declaration of a three-month State of Emergency, summarily suspending Bahrain’s human rights protections, Bahrain’s Government is effectively suppressing dissent with the force of foreign arms.

However, as this is at the request of the Government, the Government argues that this isn't intervention - instead it is (presumably) collective self-defence against external subversion. Interestingly, this is the same argument used by the Government of Republic of South Vietnam to legitimate the US-led coalition in what became the Vietnam War. As it isn't intervention, there is allegedly no violation of Article 2(7).

Libya

As you look at a map of the Middle East, move a few countries to the left on the other side of Saudi Arabia and Egypt, and in Libya, Muamar Gaddafi is testing the other end of Article 2(7) by killing large numbers of Libyan civilians.

(The rather wonderful green book from the Very Important Book Box - VIBB)

So how much latitude should there be for Gaddafi to kill his own civilians? In the rather wonderful “Charter of the United Nations: A Commentary” edited by Bruno Simma (now Justice Simma of the International Court of Justice, ICJ), the stated law comes from the famous dictum in the Nicaragua Case from 1986:

“In view of the generally accepted formulations, the principle [of non-interference] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters on which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural systems and the formulation of foreign policy.”**

This is not very helpful – an intervention’s not allowed if it’s not allowed. But it is if it is. Hmm. Fortunately, in 1923, the ICJ’s predecessor the Permanent Court of International Justice defined the distinction in Nationality Decrees in Tunis and Morocco , noting to the effect that matters that are solely within the domestic jurisdiction or a State are such “matters which are not, in principle, regulated by international law… with respect to which States, therefore remained sole judge”***

Sounds sensible.

So if the controlling law is your international obligations, then Art 2(7) – the modern repository of the ancient law of non-intervention – ceases to cover Governments that are violating their international obligations. Specifically, this means that genocide – due to the 1948 Genocide Convention – and crimes against humanity**** – due to customary international law – cannot be wrapped in a cloak of Art 2(7) impunity. Indeed, this has been the case since the 1960s when aparthied South Africa consistently lost the argument that Art 2(7) meant that the UN has no locus to criticise the apartheid system.

(Victory, for some. Presumably a demonstration in favour of more billboards.)

This means that Gadaffi et al in Libya are not covered by Art 2(7). (Nor are the autocrats in Burma / Myanmar.)

But Bahrain? Democracy – pace Teson – is not protected by an international Treaty, so it is harder to argue that autocrats can’t phone a friend and borrow some troops to resist demands for the autocracy’s end. So the beach island holiday for the Saudi troops is probably legal, as long as they don’t actually engage in violence against Bahrain’s citizens. At this point, however, it would lose this legitimacy.

I realise that this is a slightly depressing result: it would be much more compelling to conclude that these are all things that need to be protected and that At 2(7) is outdated State-centric nonsense. But at least concluding that Art 2(7) is not a torturer’s charter is a start, and refining the concepts of R2P going forward will build upon it.

* There are at least some. And you know who you are.

** Nicaragua, ICJ Reports (1986), pp. 14, 107 para. 205.

*** PCIJ, Series B No. 4 (Feb 7, 1923), p. 24, in Simma  p. 157.

**** For these purposes, crimes against humanity are the same as war crimes committed against your own people.

Libyan NFZ: Hard? Easy?

(F3s off on patrol one last time.....)

No Fly Zones sound impressive. And indeed, they can be! Lots of jets patrolling the skies and stopping nasty dictators (e.g. Saddam Hussein) from using air power to schwack good guys (e.g. Kurds) at little cost and virtually no risk to our servicepeople. Much better than the dirty, dangerous expensive business of putting soldiers on the ground in unfamiliar countries with language and cultural barriers to fight someone else's war. In this sense, the NFZ is the epitome of modern gesture politics - a modern equivalent of sending a gunboat - looks great, little if any risk to us, and satisfies the dangerous disease of "do-somethingitis" that often infects politicians. ("Something must be done!" etc etc)

NFZs for humanitarian purposes are apparently legally convenient: the Northern and Southern Iraqi NFZs were not directly covered by a UN Security council Resolution. UNSCR 688 didn't expressly authorise them, and no-one (with the possible exception of the Iraqi regime) seemed to mind too much, even when it came to so-called "Response Options" which were preplanned attacks in response to Iraqi air-defence activity. Better, over the period of 12 years and more than 180,000 sorties, no manned coalition aircraft were shot down. So, an NFZ appears to provide a low-cost effort for policing - a policy initially proposed by Winston Churchill in the 1920s.

Jolly good.

(S-300PMU-2 / SA-20 GARGOYLE: An issue)

But there are issues. Specifically, there is the Libyan integrated air defence system (IADS), which in all likelihood would have to be deactivated / destroyed before any serious NFZ partoling could get underway. According to Wikipedia the IADS may include S-300PMU-2 / SA-20 GARGOYLE, which is a rather dangerous issue. As in a Corporal Jones "Don't Panic" dangerous sort of an issue....

(Libyan Mi-35 HIND. Bad news if you're a protestor - photo by Chris Lofting)

Second, the real threat to the Libyan civilians /protesters / rebels is from ground forces operating with helicopters much more than jet fighter-bombers (FJs). And as finding and shooting down low-flying helicopters is a non-trivial task, implementing an NFZ that stops helicopters flying requires 24-hour coverage, or the political will to disable or destroy the Libyan AF on the ground.

Third, this means that we're into air attacks against Libyan armed forces targets, so why not be effective by bombing the tanks, artillery and armoured personnel carriers that are being used against the non-Gaddafi forces. Which runs the serious risk - which needs to be acknowledged up front and addressed - that in imposing an NFZ we are on a slippery slope to actual humanitarian intervention on the side of the anti-Gaddafi forces. On this basis, we'd be well advised to just fess up and get on with it robustly - whilst robustly defending the legality of the intervention. More force sooner to remove Gaddafi's regime will save more lives, so if the international community is serious about it, let's get on with it.

 

 ("Now Dave, have you really thought through this 'No Fly Zone' business...?")

All of which seems to have missed British Prime Minister David Cameron when he proposed an NFZ, leading to the humiliation by US Secretary of Defense Bob Gates (seen chatting with "call me Dave" above in 2010) to basically rubbish it as "loose talk" (Ouch!). Why does Gates' view matter? Um, because the UK cannot begin to think about establishing an NFZ without the US. (Especially now after the continuing cuts following the SDSR.) In fact, no-one can - any NFZ will be US-led as only the USAF and the US Navy have the capacity and the capability to do it.

So by all means have an NFZ, preferably under UN, Arab League, African Union or even conceivably OIC auspices. But to be effective in saving Libyan lives by removing this awful regime, invoke the humanitarian exception to the Art 2(4) prohibition on the use of force and attack Gaddafi's instruments of repression.

And do it now.

Libya - a case for R2P?

(F3s finale over Libya? Sadly, probably not. Fuel-to-Noise. Go!)

There's been some talk about setting up a No-Fly Zone (NFZ) over Libya in the last few days. Whether this is a good idea militarily is a debate for others to have, but the legal position is clear enough: if the Security Council passes a Chapter VII resolution under Article 41 or Article 42, then it is legal to use force to enforce it.

If the Russians veto a draft resolution permitting an NFZ, then the questions around humanitarian intervention and R2P will resurface. As I blogged last week, there's a serious discussion to be had, but in my view there is an humanitarian exception and an NFZ is a decent way to start protecting the Libyan people from the depredations of the Gaddafi regime's death-throws. It is unlikely to be enough - Libya is vast and the number of aircraft that would be required to have standing patrols over all of the airfields under Gaddafi loyalist command, along with the SEAD (Suppression of Enemy Air Defences) support to ensure that surface to air missiles stayed on their launch rails, would be immense.

(More heroic F3 turning and burning into the sunset....)

But it would be a start.

Am I my brother's keeper?

(No sign of Muammar. An oversight.)

Cain, Abel and Muammar Gaddafi are perhaps not the most obvious of bedfellows. But Cain's riposte to God after killing the mysterious and unexplained death of Abel (a matter that remains sub judice)* is as pertinent now as it was to biblical author: what responsibility do we carry singly and jointly for the well-being of our fellow human beings? Relatedly, how does this operate in a world in which Article 2(7) of the UN Charter restates the most ancient tenet of international law - non-interference in the internal affairs of another sovereign state? In short, are we the keepers of our Libyan sisters and brothers as they face the threat of annihilation by their own government in a (final) spasm of murderous repression? 

Let's look at the notion of non-intervention, at the doctrine of humanitarian intervention and the notion of an international "Responsibility to Protect", known as R2P in txtspk.

Non-Intervention - the international community's prime directive?

If non-intervention is a cardinal rule, then Cain is right and as long as it happens next door, it's no concern of mine: I am implacably not my brother's keeper.

Some countries argue that non-intervention is the cornerstone of the international system, and that this has been the case for centuries. This is, of course, palpably risible nonsense. Advocates of non-intervention generally mean that they are in favour of non-intervention in their affairs; it is therefore no surprise that the strongest and most persistent advocates of the non-interventionist mantra include PR China, North Korea, Saudi Arabia, Cuba, Sudan and Zimbabwe, all of which have human rights records that they would wish to protect from outside scrutiny or interference. 

It is also important to note both that history is based around countries intervening in each others' internal affairs, and that intervention spans a much wider ambit than simply the use of force - sanctions, consumer boycotts, trade agreements reflect power realities and are used by stronger states to coerce weaker ones. Try asking an Irish or Greek politician about the amount of non-intervention that they’ve had to accept in their internal affairs in the form of a financial bailout – and no shots were fired. In other words, intervention in the internal affairs of other states is the norm, and the non-interventionist language in Article 2(7) is the aberration. 

 (Do we protect them? If not you, who? If not now, when?)

Humanitarian Intervention

Back in the early 1970s the International Law Association (ILA) created a framework for humanitarian intervention** which was picked up over the next decade led by Fernando Teson, an Argentine lawyer proposed along with some American lawyers a doctrine of humanitarian intervention. As a legal proposition, humanitarian intervention proposes an exception to the ban on the use of force in Article 2(4) of the UN Charter in cases of genocide, crimes against humanity or massive human rights abuses where there is no option due to time or because the Security Council is deadlocked. 

All good. (Except that Teson and his proto-neo-conservative American chums decided that not being a democracy was a gross violation of human rights, and then used this to propound the deeply problematic notion of "pro-democratic wars"; Teson's supporters tended to find themselves on the hawkish/paranoid Republican right, some of whom went so far as to suggest a NATO invasion of central Europe to drive out the Soviet totalitarians. No prizes from your blogmaster for guessing the likely outcome of that particular policy choice if you'd tried to implement it.)

In one of those strange historical oddities,*** Teson's champions today are on the left, under the banner of solidarism. Nicholas Wheeler's "Saving Strangers" is the classic exposition of the need for a framework for where there should be an exception to the UN Charter rules on non-intervention and bars on the use of force. As Wheeler shows, the three classic Cold War interventions that could have been presented as humanitarian interventions (India in East Pakistan/Bangladeshi War of Independence, 1971; Tanzania in Uganda, 1978; Vietnam in Kampuchea, 1979) never claimed any humanitarian rationale at the time. Kosovo in 1999 is a partial example of humanitarian intervention, but some structural elements were not in accord with the ILA's 1974 blueprint. Similarly, UK/US/FR extending UNSCR 688 to (and arguably beyond) breaking point for Operation Provide Comfort with the Northern and Southern No-Fly Zones over Iraq.

(Op Northern Watch - aka heroic Jags over northern Iraq. Ahh....)

So under humanitarian intervention, you can present yourself as your sister's keeper, but you don't always get a chance to do anything about it - and if you do want to do something about it, then you need to make sure you work through the ILA check list, and crucially, you need to make explicit that it is a humanitarian intervention at the time that you do it. 

Bottom line: humanitarian intervention provides an optional route for States that want to intervene - if the world is indifferent, humanitarian intervention doctrine does not require the community of nations to do anything about massive human rights violations. Just ask Jim Hacker - he explains it far more eloquently than me; the Russians were indeed too strong...

Responsibility to Protect (R to P, R2P)

The 2005 UN World Summit outcomes document specifically recognised the need for a responsibility for collective action to stop "genocide, war crimes, ethnic cleansing and crimes against humanity" - which are all defined in the ICC Rome Statute. This is the genesis for Responsibility to Protect - a key turning point in international law. 

Paragraph 139 of the 2005 World Summit outcomes states in part:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 

Which is a real drafting hodgepodge, betraying the lack of unanimity in the international community. The answer appears to be that there is no unilateral right of intervention, the Security Council should do the right thing but there may be a regional organisation get out clause. Or not. 

So R2P is not clear yet: NGOs are pushing for clarity and for the world to move towards a Responsibility to Protect. Let's see how we're getting on. We need to speak clearly that the international community does have responsibilities and Libyan-style repression is a crime, pure and simple.

* This is a legal blog. You get legal jokes - bear with me, some of them are even funny.

**The ILA's Third Interim Report of the Subcommittee on the International Protection of Human Rights by General International Law, New Dehli, 1974

***For example the manner in which the British Conservatives have moved from being the principal supporters of British membership of the EEC to being dominated by anti-EU forces, whereas the British left moved from visceral anti-EEC agitation based on the notion that the EEC was an anti-worker capitalist plot to being broadly in favour of the EU as a method of promoting workers' interests.