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.

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.

Words have meanings. And Consequences.

(UN General Assembly. Bring your own seat chair. Sit anywhere. Or something.)

Well, hasn't it been an interesting couple of days? If he's achieved nothing else, then PA President Mahmoud Abbas (Abu Mazen) has put the need for a two-state solution back at the centre of the international agenda for the first time in at least the last 12 months - indeed, with the Arab Spring, it's hard to say that even the Middle East has been focussed on Israeli - Palestinian negotiations in 2011. 

I shan't bore you with lots of links to interesting stories: I assume that if you've bothered to read these blog posts, you're probably interested enough in the subject to read a range of views and therefore you hardly need me to drive the point home. And I must stress again that this is an international law blog, rather than a politics blog... which I appreciate may be a fine line to tread, but at base it looks at the legal arguments first, and if it is to make political commentary, to do so second. 

So with that out of the way, I was shocked not by Texas Governor Rick Perry's "Likud right or wrong" speech in which Perry accused President Obama of "appeasement", or by Perry's apparent suggestion that that he wanted Jerusalem “united under Israeli rule” (in contravention to US policy and UNSCR 478 (1980)); Perry seems to be a loud-mouth dimwit, even if he is running for the US Presidency. 

Altogether more shocking is by US House of Representatives Resolution H Res 112-394 introduced on 8 September by Illinois Republican Joe Walsh (below). 

(Annexation? Sure, help yourselves!)

H Res 112-394 enjoys more than 30 co-sponsors, and resolves, 

"That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations."

Supports annexation? Excuse me? And as an implict punshiment for the PA pressing for "unilateral recognition of Palestinian statehood at the United Nations"? Pardon? Really?! Really?!?  

So let's look at the legal issues. All of this, it must be recalled is in territory captured by the Israeli Defence Force in the 1967 Six Day War, and subsequently occupied. Therefore, the controlling law remains the Fourth Geneva Convention (1949) (GCIV), which is binding on all states - including Israel.

  

Annexation 

The UN Charter, in outlawing aggressive wars in Article 2(4), made the acquisition of territory through conquest illegal for the first time in human history. Since 1945, therefore, annexation has also been illegal.*

In Geneva Convention Law, GCIV Article 47 forbids the removal of the population's rights under the Geneva Conventions by "any annexation by the latter of the whole or part of the occupied territory", making annexation not just illegal under the UN Charter, but also making any attempt to implement this illegal policy a crime under Geneva Law, too.

GCIV Article 49 deals with expulsions, evacuations and population transfers in its six paragraphs. It is illegal to permanently move a populations out of their occupied territory, though there are specific rules about evacuation for protection, e.g. in the case of continuing military operations. These evacuations must be temporary, and abide by international safeguards.

(On a tangent, reading Article 49 can be slightly confusing, in that the first five deal with the protection of the population under occupation, and the sixth paragraph prohibits an occupying power from transferring their population into the conquered territory; it is a Art 49(6) that makes all Israeli settlements in the West Bank and the Golan Heights (and prior to 2005, Gaza) unambiguously illegal under international law.** This nearly led Art 49(6) to become its own article in GCIV, but in the drafting conference, it stayed where it is.) 

Annexation as a collective punishment. 

Any annexation of the West Bank would, on the basis of Israeli policy in the area of East Jerusalem that the Israeli Government claims to have annexed, (and which no-one else in the international community accepts, hence the reason that Embassies in Israel are in Tel Aviv, not Jerusalem), be deprived of significant civil and political rights. This amounts to a form of collective punishment, which GCIV Article 33 expressly prohibits, demanding that "No protected person may be punished for an offence he or she has not personally committed."

So has Joe Walsh incited war crimes?

Incite: to stir, encourage, or urge on; stimulate or prompt to action: to incite a crowd to riot (Courtesy of Dictionary.com)

 

It is clear that any Israeli annexation would be unambiguously illegal, and in (i) wrongly asserting that annexation is a "right" of the Israeli state, and (ii) to link this illegal action to an illegal collective punishment, it is arguable that Representative Walsh and his colleagues are indeed inciting such - illegal - action. The question is, would this amount to what the Geneva Convention would describe as "grave breaches"? I'm not sure, and will ask some experts.

However, if it does - and both ICTR and ICTY jurisprudence has cases on incitement - arguably Congressman Walsh and his con-sponsors should be subject to action by the US Government under its obligations laid out in Common Article I of the Geneva Conventions, which requires, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." 

Oops. 

Perhaps someone may want to tell the Congressman.... 

* Only the Indian annexation of the Portugese colony of Goa being broadly recognised by the international community, and with the understanding that this was in effect decolonisation. 

** In a tragic irony, the first paragraph of the Art 49(6) ICRC commentary explains the historical background, and why Art 49(6) was included in the first place:  

"This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." 

In other words, Art 49(6) was a direct repudiation of Hitler's policy of Lebensraum settling Germans and ethnic Germans across central and eastern Europe.

Governance....

(Right, Somalia.... why didn't I think of that?)

Ok, so the video is amusing. And in fact, the beaches of Somalia can be amazingly beautiful, as we'll see later on. But the real challenge of Governance still remains - and indeed, the ultimate legacy of Regan / Thatcherism may be that the notion that Government is problem, not the solution (and, inter alia, taxes are bad / evil).

In my view, this is deeply unhelpful, especially in states which are facing crises. And there's plenty of them to go around. Consider the debt crises in Greece and Ireland - or indeed the widespread public sector strikes in the UK tomorrow, let alone the US Congress playing chicken with the debt ceiling. And this is before we look at places with "imperfect" governments - anywhere from Afghanistan, where the Central Bank Governor fled in fear of his life after investigating the looting of Kabul Bank, to Angola, where a resource boom has created one of the world's most unequal societies.

Governance - fundamentally, the competence of the government combined with the consent of the governed, is critical to long term economic growth and social stability. Massively unequal countries tend to have revolutions, as do kleptocratic ones - just ask Tunisians or Yemenis. But the solution is not less government or more government: it is better governance, fuelled by representative, responsive institutions, in which corruption in particular is not tolerated.

(One of Somalia's beautiful beaches. Attracts surfers and tank-spotters.)

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.

UK publishes Libya legal advice (sort of)

(Elizabeth Wilmshurst CMG addressing the Iraq Enquiry. Thank-you for everything.)

Appearing at the Iraq Enquiry last year, former UK Foreign Office Deputy Legal Adviser Elizabeth Wilmshurst (now Head of the Chatham House International Law Programme) - and the only person to resign over the illegality of the 2003 Iraq invasion - described the 2003 legal and policy process as  ... lamentable. There should have been greater transparency within government about the evolving legal advice" .  

Quite right too. 

So it was with real interest that I saw a note from Nick Clegg to LibDem party members this morning on the Libyan situation which includes this:

"Colonel Gaddafi’s treatment of his own people has been brutal, savage and wholly unacceptable. We have worked with Libya’s regional neighbours, especially the Arab League, and countries across the globe, to secure a resolution in UN Security Council. This resolution will allow us to act lawfully  in deploying our forces to up-hold a ‘no-fly zone’ in Libya.

The Prime Minister gave a statement yesterday, which you can read here. And on Monday we will have a full debate in the House of Commons, followed by a vote. In addition we will be publishing a summary of the legal advice of the Attorney-General. 

That is the right approach. This is a coalition government that will act decisively to protect innocent lives and uphold universal human rights. But one which will do so working with, not against, international law and the international community."

Shortly, therefore, we should get to read a summary of Sir Daniel Bethlehem QC's thoughts. Great, I look forward to it. 

Even better, Nick, you could publish the whole thing, and not just the summary.

   
Update: Here's the UK legal advice. Very sensible.

LOAC or IHL? Words matter!

(The ICRC Customary International Law Study - a wonderful piece of work.) 

Rant Mode: ON (You have been warned.)

Words matter. Names matter.

And that is why  is why I'm always so annoyed with the ICRC's insistence on using the term "International Humanitarian Law" (IHL) when referring to the Law of Armed Conflict (LOAC). The principal (& principled) problem is that as a term IHL is dangerously close to International Human Rights Law (IHRL), inviting comparison, conflation and breeding confusion. It is true that some eminent commentators - e.g. Professor Philippe Sands QC - have characterised the two bodies of law as twins separated at birth, raised by mutually antagonistic parents. This is fair enough as both legal cannons emanate from a well-spring of humanitarianism, designed to protect people from the arbitrary predations of States and the powerful; but they are distinct.

And distinct for a reason. Human Rights Law is universal and applies at all times; these are, after all, universal minimum guarantees. The 1948 Universal Declaration of Human Rights (UDHR) enumerates the fundamental rights of people worldwide (even if there were UN members which routinely violated the UDHR's requirements in 1948 - e.g. colonial rule, apartheid, or slavery). Numerous national, regional and international human rights instruments have been added (e.g. the International Covenant on Civil and Political Rights (ICCPR) in 1966, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979; the African charter on Human and Peoples Rights from 1981) which together with some Courts - notably the European Court of Human Rights (ECtHR) in Strasbourg - have transformed the rights of people worldwide by enunciating them and providing redress (however patchy and imperfect.) This is a proud history and a firm foundation for building a better future.

 (The rather wonderful companion to the red book, above.)

The Law of Armed Conflict (LOAC), however, is of a fundamentally different form. First and most importantly, LOAC can by definition only apply during conflict; simply, it is legal to kill an enemy combatant in wartime when killing the same person in peacetime is called murder. Second, as lex specialis (special law relating to specific circumstances), LOAC replaces the existing law for the period in which it is applicable where the two conflict. Third, specific and different rules apply for International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs). Finally, LOAC has large elements that predate the Treaties and exist under Customary International Law which the ICRC attempted the thankless task of pulling together it the Customary Law Study (the red book at the top of the post) - a good piece of work, being improved with the current update, and is especially rewarding when read in tandem with Chatham House's critique (the blue book). 

(Not a pizza)

Any attempt to merge the two is like comparing an apple with a pizza; they are both about rights, but their form and function is entirely different.

So when the ICRC as the guardians of the central LOAC treaty-based legislation (Geneva Conventions I - IV from 1949 and the two Additional Protocols to the Conventions from 1977) tries to broaden the scope of the Conventions by extending the scope of NIACs down from insurgencies where insurgents hold territory and operate a chain of command to civil unrest and riots*, problems are inevitable. The most obvious is that as lex specialis, applying LOAC to civil unrest would actually reduce the protection of human rights, as LOAC overrides the human rights protections.

(Libya's new-old flag: today's protesters are using a variant of the old Royalist flag from pre-1969)

Applying this notion in situations in Libya today could have the following legal effect: by replacing human rights law with LOAC, instead of treating Libyan protesters as civilians engaged in awe-inspiring demotic civic dialogue, who have, amongst other things, the right to life, liberty and security of person under UDHR Article 3, the civilians could be treated as rebel combatants and legally killed as long as there was a military advantaged gained by doing so. When Col. Gaddafi promises to "die in Libya" then it's reasonable to assume that such a legal position would remove what little restraint still exists on the use of force. As bad as things are in Libya, they could be much, much worse if the survival of the state legally allowed essentially unlimited use of force against protesters.

Thus to suggest that LOAC and IHRL are the same thing is bonkers, as it serves to reduce protections and increase the incentive for oppressive regimes to go for broke. Madness, in my humble opinion.

So, a plea for clarity. LOAC is LOAC because it covers armed conflicts - and IHRL covers peacetime. The names help remind us of this, and makes for better policy.

Rant Mode: OFF

*This is a serious and separate problem. Fortunately, Chatham House are conducting an experts' working group on the Classification of Conflict which I'm looking forward to reading in due course.