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Dangerous Departures

Published online by Cambridge University Press:  20 January 2017

Mary Ellen O’Connell
Mary Ellen O’Connell*
Affiliation:
International Dispute Resolution—Kroc Institute, University of Notre Dame
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Extract

Daniel Bethlehem has proposed a series of principles relating to a state’s use of military force against nonstate actors (NSAs). He believes that his proposals will lead to the formulation of a “clear set of principles that effectively address the specific operational circumstances faced by states.” While Bethlehem’s intentions may be laudable, his effort is founded on the misconception that the international legal system lacks sufficiently clear principles to govern the use of military force against NSAs. The system already has such principles, as this comment will show.

Type
Notes and Comments
Information
American Journal of International Law , Volume 107 , Issue 2 , April 2013 , pp. 380 - 386
Copyright
Copyright © American Society of International Law 2013

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References

* Robert and Marion Short Professor in Law and Research Professor of International Dispute Resolution—Kroc Institute, University of Notre Dame.

1 Bethlehem, Daniel, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AJIL 769, 773 (2012)CrossRefGoogle Scholar.

2 Id.

3 Other efforts of this kind should also be challenged for undermining the law, but as Elizabeth Wilmshurst and Michael Wood point out in their commentary, Self-Defense Against Nonstate Actors: Reflections on the “Bethlehem Principles, ” 107 AJIL 390, 393–95 (2013), Bethlehem’s proposals depart even more radically from the law than the Chatham House Principles (published as Wilmshurst, Elizabeth, The Chatham House Principles of International Law on the Use of Force in Self-Defence, 55 Int’l & Comp. L.Q. 963 (2006)CrossRefGoogle Scholar [hereinafter Chatham House Principles]), or the Leiden Policy Recommendations (published as Schrijver, Nico & van den Herik, Larissa, Leiden Policy Recommendations on Counter-terrorism and International Law, 57 Neth. Int’l L. Rev. 531 (2010))Google Scholar. See also infra text accompanying note 23 (critical comment on one of the Chatham House Principles).

4 Bethlehem, supra note 1, at 773.

5 2005 World Summit Outcome, GA Res. A/60/L.1, paras. 78–79 (Sept. 15, 2005), available at http://www.globalr2p.org/media/files/wsod_2005.pdf. This important document and other evidence of the current status of the law on self-defense are omitted in Reinold, Theresa, State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11, 105 AJIL 244 (2011)CrossRefGoogle Scholar. For an overview and assessment of the principal literature in English on the law of self-defense, see Mary Ellen O’Connell, The Right of Self-Defense, Oxford Bibliographies (Mar. 2012), at http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0028.xml.

6 Bethlehem, supra note 1, at 775, princ. 1.

7 see O’Connell, Mary Ellen, The Choice of Law Against Terrorism, 4 J. Nat’l Sec. L. & Pol’y 343, 359 (2010)Google Scholar (citing Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4 (Apr.9); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14 (June 27) [hereinafter Nicaragua]; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8) [hereinafter Nuclear Weapons]; Oil Platforms (Iran v. U.S.), 2003 ICJ Rep. 161, paras. 61–64 (Nov. 6) [hereinafter Oil Platforms ]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, Sep. Op. Higgins, J., 2004 ICJ Rep. 136, 207, paras. 33–34 (July 9) [hereinafter Wall]; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ Rep. 168, paras. 146, 301 (Dec. 19) [hereinafter Congo v. Uganda]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 ICJ Rep. 43, para. 391 (Feb. 26)).

8 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. The United States is a party.

9 Id., Art. 6.

10 See, e.g., Nicaragua, supra note 7, para. 195; Wall, supra note 7, paras. 139–42 (majority opinion); Oil Platforms, supra note 7, paras. 62– 64.

11 see Greenwood, Christopher, War, Terrorism, and International Law, 56 Current Legal Probs. 505, 529 (2003)CrossRefGoogle Scholar.

12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 UNTS 609.

13 Reservation of the United Kingdom to Arts. 1(4) & 96(3) (July 2, 2002) of Additional Protocol I, supra note 12, available at http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument.

14 See Nicaragua, supra note 7, para. 176 (noting the requirements under customary international law of necessity and proportionality when using self-defense); see also Nolte, Georg, Multipurpose Self-Defence, Proportionality Disoriented: A Response to David Kretzmer, 24 Eur. J. Int’l L. 283 (2013)CrossRefGoogle Scholar.

15 Nuclear Weapons, supra note 7, para. 41 (citing Nicaragua, supra note 7, para. 176); see also Oil Platforms, supra note 7, para. 76. Bethlehem only refers to necessity as a rule of “last resort.” Bethlehem, supra note 1, at 775, princ. 2. That was the sense in which the United States found Israel’s attack on Iraq’s Osirak nuclear reactor to be unlawful. see SC Res. 487 (June 19, 1981).

16 Bethlehem, supra note 1, at 773.

17 Nicaragua, supra note 7, para. 203; Oil Platforms, supra note 7, para. 61– 64; Congo v. Uganda, supra note 7, paras. 146, 300, 301; see also James Thuo Gathii, Irregular Forces and Self-Defense Under the UN Charter, in What is War? An Investigation in the Wake of 9/11, at 97 (Mary Ellen O’Connell ed., 2012).

18 see O’Connell, Mary Ellen, Lawful Self-Defense to Terrorism, 63 U. Pitt. L. Rev. 889, 901–02 (2002)Google Scholar.

19 see Draft Articles on State Responsibility, Art. 20, GA Res. 56/83 (Dec. 12, 2001),available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (“Consent: Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”). Comment 4 to Article 20 emphasizes that for consent to be valid it must be provided by an official with authority to do so. Comment 10 cautions that “[t]he rights conferred by international human rights treaties cannot be waived by their beneficiaries....”If beneficiaries cannot waive their own human rights, the state may certainly not do so on their behalf. See also James Crawford, The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries (2001). As to what counts as “valid” consent, see Murphy, Sean D., The International Legality of US Military Cross-Border Operations from Afghanistan into Pakistan, 85 Int’l L. Stud. 109, 118–20 (2009)Google Scholar.

20 Bethlehem, supra note 1, at 777, princ. 13.

21 See, e.g., Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010); Louise Doswald Beck, Human Rights in Times of Conflict and Terrorism(2011); Draft Articles on State Responsibility, supra note 19, Art. 20, cmt. 10.

22 Invitation as a basis for the lawful use of force on the territory of another state has its critics. See, e.g., Doswald-Beck, Louise, The Legal Validity of Military Intervention by Invitation of the Government, 1989 Brit. Y.B. Int’l L. 189, 251Google Scholar.

23 Chatham House Principles, supra note 3, at 969, 970.

24 Bethlehem, supra note 1, at 770.

25 Joel Greenberg, Israel Affirms Policy of Assassinating Militants, N.Y. Times, July 5, 2001, at A5.

26 For a detailed account of the British struggle against the IRA and other counter terrorism efforts, see Louise Richardson, What Terrorists Want:Understanding the Enemy, Containing the Threat (2006).

27 Robert Pape, Remarks on Chicago Tonight: Unmanned Drones (WTTW television broadcast Oct. 30, 2012),available at http://chicagotonight.wttw.com/2012/10/30/unmanned-drones. Apparently, President Barack Obama has also concluded that drone attacks will have little long-term impact on suppressing terrorism. Bob Woodward, Obama’s Wars 284 (2010).

28 The revelation that the Obama administration believed it needed to draft rules governing its targeted killing campaign in case Governor Mitt Romney won the presidential election has increased the opposition to the policy within the United States. Many commentators have observed that the administration should know that international law rules already govern this practice. see Scott Shane, Election Spurred a Move to Codify U.S. Drone Policy, N.Y. Times, Nov. 24, 2012, at A1. More dramatically, Senator Rand Paul increased opposition within the United States to drone policy during a thirteen-hour filibuster of John O. Brennan’s nomination to head the CIA. see Brett LoGiurato,Since Rand Paul’s Historic Filibuster, There Has Been a Dramatic Shift in Public Opinion on Drone Strikes, Bus. Insider, Apr. 11, 2013, at http://www.businessinsider.com/rand-paul-filibuster-drone-polling-polls-2013-4.

29 Henkin, Louis, The Use of Force: Law and U.S. Policy, in Right V. Might: International Law and the Use of Force 37, 60 (Henkin, Louiset al. eds., 2d ed. 1991)Google Scholar (responding to Jeane J. Kirkpatrick & Allan Gerson, The Reagan Doctrine, Human Rights, and International Law, in id. at 19).