USG Opinion on killing Anwar al-Awlaki: Part II

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43) 

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001. 

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status. 

 

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as, 

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." 

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.


* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.

Gareth Evans on R2P: Is Syria next?

(Gareth Evans QC AO)

Back at the beginning of the Libyan revolution, I asked "Am I my brother's keeper" in reference to the Responsibility to Protect, or R2P. So it was with some annoyance that I missed the lecture by Gareth Evans, the former Australian Foreign Minister, and later head of the International Crisis Group at Chatham House's International Law Programme on 6 Oct 11. Evans has been a major proponent of R2P in recent years, and under R2P, the international community undertakes to ensure that the failures of the 1990s in Rwanda, Srebenica and Kosovo are not repeated - a position that made it into Paragraph 139 of the 2005 World Summit Conclusions. Para 139 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."

As this blog has previous pointed out, Para 139 is a real drafting hodgepodge, betraying the lack of unanimity in the international community. Crucially, should R2P - and especially the use of force - be allowed outside the direct consent of the UNSC acting under Chapter VII's Article 42? 

The relationship between R2P and Chapter VII is critical, because at one end of the spectrum, R2P is no more than a rhetorical device, as the UNSC continues to control the use of force, even in time of humanitarian emergencies; if so, it is pointless. At the other end of the scale, R2P could be construed as bolstering (the pre-existing) right of humanitarian intervention outside of the UNSC in cases where the UNSC is unable or unwilling to act.  

(Them again....)

It is therefore with great interest that I read the transcript of Gareth Evans' 6 October speech. What's particularly striking is that Evans repeatedly ties R2P very narrowly to the UNSC rather than an expansive understanding tied to humanitarian intervention, and he then sets out a five criteria test for what he takes great care to describe as 

"... legitimacy - not the criteria of legality, that's clear; Security Council support - criteria of legitimacy"

These criteria are below; though lengthy, I think it is worth quoting Evans' five-fold test in full:

The first test is seriousness of risk. Is the threatened harm of such a kind, such a scale, as to at least prima facie justify the use of military force?
 
The second test is whether the primary purpose of the proposed military action is actually to halt or avert the threat in question, as distinct from being about oil or bananas or whatever. They can be secondary or tertiary considerations and they could be quite relevant in helping to mobilize otherwise sceptical domestic constituencies but the intention test has to be what’s the primary motivation genuinely – is it to help or avert harm?

The third test is last resort. Has every non-military option been, if not applied in practise because that can be possibly time consuming in some cases, but has it at least been explored and found wanting and unlikely to serve the purpose.
 
The fourth test is one of proportionality, of a scale, the duration, the intensity of a proposed military action and the minimum necessary to meet the threat in question.

And the final and often the toughest legitimacy test is balance of consequences. Will those at risk be better or worse off as a result of such military action being taken?
 

(Decent shooting in Bab al Azizya, with photo credit to Elham at LFJL)

In Evans' view the 2011 Libyan intervention met all five criteria, though in his view they may have gone too far in prosecuting the conflict - in that it went further than the abstaining States were probably expecting when they allowed the passage of UNSCR 1973 (it passed 10-0-5, with Brazil, China, Germany, India and Russia abstaining), which probably contributed to the Chinese and Russian vetoes of draft UNSCR S/2011/612 of 4 Oct 2011. S/2011/612 was defeated 9-2-4 (China and Russia vetoing, with Brazil, India, Lebanon and South Africa abstaining); in other words, if China and Russia had abstained, there was the bare minimum of 9 votes required for passage. 

So with the death toll in anti-Assad protests reportedly reaching 3,000, what is the position of R2P after a (very benign) draft UNSCR on Syria was vetoed by the UNSC? (And let's be very clear - the vetoed text is a million miles from authorising the use of force - and had been deliberately watered down to overcome Chinese and Russian objections, which suggests that sponsors were expecting that the concessions would be sufficient get this through, and as a result it isn't likely to do much for P5 relations on the UNSC.) 

I presumed that R2P had to add something to the existing framework, by explicitly recognising a right to intervene when circumstances on the ground demanded it. Simply, without it, R2P is meaningless, and there's no point in having it at all - so why put it in Para 139 of the 2005 World Summit text? It is this element that is so confusing (and potentially disturbing) about Gareth Evans' speech - it is when the UNSC is deadlocked, and crimes are occurring on the ground that the R2P buttress to humanitarian intervention doctrine comes into its' own, and intervention to protect the civilian population should be initiated. 

(Closer to the action than Gioia was to Libya. Beer is better, too.)

This is one that will run and run, but I'd prefer to see the UK and allied aircraft that handed Benghazi's airspace back to Libyan control yesterday moved to RAF Akrotiri, Cyprus to bring a little force to bear on the Syrian regime. Akrotiri is less than 220nm from Damascus - under 25 mins flying time. But for Evans, presumably the no-go from the UNSC would mean that R2P can't be applied - and it is this result with which I have the most trouble.

So, President Obama, Prime Minister Cameron and President Sarkozy: prove that Gareth Evans is too cautious and give R2P some legs with an NFZ over Syria - it's legal, and it woulg give the Arab Spring the opportunity to bloom in Damascus, Aleppo and Homs as well. 

USG opinion on killing Anwar al Awlaki: Part I

(Our source of the legal advice. A good, but unsatisfactory, start.)

On Saturday, the NYT published an article on the legal advice that underpinned the US attack in Yemen that killed Anwar al-Awlaki and Samir Khan. Unfortunately, the advice itself is yet to be published, so we can only comment on the NYT's extracts, but this is nonetheless an interesting start. Clearly, the legal advice on so sensitive a topic should be released, even if the intelligence and intelligence methods that are operationally critical cannot be disclosed.

We are told that the Department of Justice (DOJ) advice runs to "roughly 50 pages"; this is not surprising, as it has to address a number of difficult issues in international law - both LOAC and IHRL - and US domestic law as both Awlaki and Khan were US citizens. The first key point on legality is the supremacy of international law over US domestic law in these cases, as irrespective of the US legal position, if an action was illegal under international law, it would be illegal, period. Of course, there could be circumstances under which an action is legal under international law and illegal under US law, in which case US law would govern US government actions; however, the supremacy of international law over (any State's) domestic law means that the converse cannot be true.

"Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again."

As this blog has rehearsed, the challenge in determining whether or not it is legal to use force against an individual in an international or non-international armed conflict (IAC or NIAC) is down to their combatant status, by ensuring that States do not attack civilians. As the "Basic Rule" in Article 48(1) of the 1st Additional Protocol 1977 (AP I) states concisely for IACs,

"... the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

For NIACs, discrimination is found in Article 13 of the 2nd Additional Protocol (AP II). Only if someone has combatant status - defined for IACs in Article 43 of AP I, and by implication in Article 13(3) of AP II for NIACs - can they be attacked. Only once combatant status in an IAC through membership or in a NIAC by Direct Participation in Hostilities is established can a targeting decision move on to the questions of military advantage, proportionality and humanity.

Hence the importance of establishing Mr Awlaki's status as a "cobelligerent" with AQ. However, this raises more questions than it answers, begging the question of what is the belligerent status or otherwise of AQ and the United States - the implication is that AQ is involved in a transnational IAC, but this is unstated.

(Not all law enforcement operations need to look like this....)

But then the NYT report says this:

"The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located."

Which is odd, because this is the language of law enforcement and human rights law - that we need to arrest criminals and that the use of lethal force (the most significant violation of UDHR Art 3 and ICCPR Art 6(1) Right to Life imaginable) is only legitimate when killing a suspect is the only way to avoid an imminent threat to the lives of others (eg suicide bombers). So did the US consider Awlaki an IAC or NIAC combatant or not? And if not, on what imminence grounds did it use lethal force?

The NYT again:

"The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located."

If true, this is a troublingly expansive notion of imminence. Imminent threat to life in law enforcement practice has been understood to mean armed suicide bombers ready to detonate their bombs, or kidnappers holding a gun to the head of hostages. This is a million miles from someone who is "not in the midst of launching an attack at the precise moment he is located" - which is much more like the definition of an IAC combatant or a NIAC commander who is fulfilling a continuous combat function of an organised armed group, which brings us back to the key question of what type of conflict (if any) does the US believe it was engaged in with Mr. Awlaki?

Releasing the legal advice should answer this question. And only then we can discuss what the implications for US law are of killing US citizens in this manner.

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.

Post SDSR - Implementation through PR11

 

(Hunter PR 11*. Like MoD PR 11 but much more elegant...) 

Planning Round 11 - PR11 

I accept that it's boring bureaucracy, but process is vital in Government, and never more so than when dealing with budgets and finance. What's critical to remember is that the settlement reached in a Comprehensive Spending Review (CSR) / Strategic Defence and Security Review (SDSR) is in a very meaningful sense Churchill's "End of the Beginning", rather that an end in itself: all that has been agreed at this point is the budget "envelope" within which the Department will have to operate for the length of the budget deal.

What then happens is the process of converting the CSR / SDSR settlement into something that actually can (at least theoretically) be implemented by the MoD. This is a critical, and often under-rated / misunderstood step - many a drip slip betwixt cup and lip and all of that. It is also where the painful decisions become crystallised - where the metaphorical rubber really does hit the road.

In the MoD a key part of this process is known by the catchy title of "Planning Round XX". This process costs lots of options, prioritises them, chooses which elements to fund and which cuts to make to make the proverbial quart fit into a pint pot, and ultimately spits out an answer that is the operational annual budget of the MoD; the work for next year is PR 11.

What was done?
The first pass results were announced by Liam Fox on 18 July 2011. As Chalmers points out, this is effectively another Defence Review less than a year after the SDSR was completed, underlining that the SDSR did not resolve the funding dilemma - and was therefore unimplementable. It is hard to imagine a more damning indictment of a review of SDSR's scale and ambition.

Some good news came in July - there was a planning commitment that the MoD equipment procurement and equipment support budgets would increase 1% in real terms from 2014/15. Of course, this is an attempt to bind a future spending review - and indeed a future Parliament in a way that A. V. Dicey et al would decry as unconstitutional interference with Parliamentary Sovereignty - which may or may not work; not the least reason is that if the economy doesn't turn around the pressure on the post-Afghanistan MoD budget will all be one direction.

In return for jam tomorrow, MoD has agreed to make what Chalmers calls "further difficult decisions on capability reductions, notably in Army personnel numbers." Specifically, this means bringing the Army down to 84,000 by 2020, a figure that was bandied about in the SDSR process. But the problem is that what these reductions are to be hasn't been announced, which implies that it hasn't - or at least the phasing and the force mix - hasn't been agreed. The answer to maintaining capability by cutting numbers is to shift to (cheaper) reservists from (expensive) regulars, with £1.5bn over the next decade to fund this. What impact £150m p.a. will have is not yet clear.

UK Future Capabilities Pit Falls Overspends

 (Type 26 Global Cocktail Party Platform Combat Ship)

 (F-35C Lightning II - shiney, American, over-budget, late)

 (RN Trident II-D5 SLBM Launch. No, you don't get to see the "cool" submarine thing.)

The most obvious risks in a strategic steady state - ie, without any new unplanned for threats or wars -  are the three biggest ticket items - replacement submarines for Trident, F-35 Lightning II strike fighters for the FAA and the RAF, and the future frigate, Type 26.

Trident is perhaps the easiest to discuss because it is so binary as a programme - it is largely independent of the rest of the MoD force structure in that though it has supporting assets, at a pretty profound level you either do Trident or you don't. And therefore you can consider the £30 - £100bn bill with a degree of isolation from the rest of the budget. It is also a significant technical risk given that it is a new UK submarine design, as with the unfortunately named "Astute" class, this is an area of significant weakness in the UK defence manufacturing base.

 (All of this for 20 sorties a day? Really? Really?!)

F-35C is connected to other programmes, most obviously the carrier. It is also different in that the UK is a bit part player in the US programme, and the US will make F-35 work for the USAF and the USN, because without it, their qualitative edge over "near peer" adversaries will erode. The cost, however, is vast, and initial (optimistic) UK procurement figures of 132-150 F-35s simply will not happen as the unit cost seems destined to be around the £100m mark. At that price, 60 airframes - or enough for just four 12 aircraft squadrons plus a training flight - is a £6bn+ programme - similar to the aircraft carriers.

It is easy to see why Chalmers cites an MoD decision to routinely deploy the UK carrier with only 12 aircraft (versus the 36 originally intended). Unfortunately, 12 aircraft the work of 36 cannot do, and the MoD has scaled back the sortie-generation requirement of the carriers from 72/day to 20. 20?! Given that the cost spiral and delayed service entry date for the F-35C was known and knowable in 2010, it is hard to understand how the carrier programme could have made prioritisation sense if it is only expected to produce 20 sorties per day. Charitably, all that can be assumed is that the planners were planning on having more than four squadrons of F-35C in total, making it more likely that the FAA could have 36 aircraft and crews trained and deployable. Except that if there are only four 12 aircraft squadrons in toto, this is not going to happen. From this, it is hard to understand why the UK is pursuing the carrier programme at all.

 

(Type 45: Stalin's maxim that "Quantity has a Quality all its own" doesn't work in reverse...)

Type 26 is much easier to argue for and against. The UK needs a new frigate. It is not clear that the UK needs to go to the trouble of developing one for what will never (sadly) be more than 20 hulls, and may well end up being half of that. Given that the Canadians are not interested in a collaborative programme, the Brazilians may buy one and then build their own, and there is lots of competition, it would surely make more sense for the UK to buy off the shelf from Europe (FREMM, Lafayette or F124 would do nicely). And before anyone shouts "HORIZON was a disaster", if we had proceeded with it, the RN should have been able to afford 9 or 10 instead of the 6 Type 45s they're going to operate at £1bn each.

Tough choices. But they need to be made if the UK is going to get maximum value for money from the small defence budget: MoD is not there to create or sustain jobs for BAES. 

So, with the greatest respect to Malcolm Chalmers, it is hard to see how he can conclude that, "the MoD now appears to be well on the way to closing its £74 billion funding gap" until the cuts are detailed and the numbers and the underlying assumptions can be independently verified (as the NAO is now empowered to do.) Let's see how they get on, but I'm a long way from convinced.

* Ok pedants, I know the RN used the Hunter PR 11s as trainers and not operationally, and that therefore they should probably been designated T(PR) Mk. 11 - or indeed T(PR) Mk. 12 as they were based on Hunter F Mk. 4 airframes, not the FGA Mk. 9 that begot the RN's GA Mk. 11. If this is a burning concern, I suggest you complain retrospectively to the Chief of Staff (Aviation and Carriers) and Rear Admiral Fleet Air Arm, as he's presumably less busy than he was, given the scrapping of the Harriers and the Carriers...