Article 51 and the convenient use of the self-defence argument

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British Reaper drone

 

Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:

More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.

On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”

On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government.[1] According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.

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In October, Russia released dramatic drone footage of battles in Damascus amid a propaganda drive.

The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):

On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.

The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.

In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:

Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.

Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:

If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.

Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.

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It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.

But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.

[1] The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »

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How I learned to stop worrying and love drones

Created by Tom Tomorrow for the Daily Kos

For twelve hours, fifty-two minutes and eleven seconds, Sen. Rand Paul (R- KY) held the floor of the Senate in a remarkable filibuster aimed at derailing one of the latest decisions made by the Obama administration in matters of domestic security. What is even more remarkable about this is that it was up to a libertarian, a man extremely controversial for his views on the Civil Rights Act, to stand up for the rule of law. What is deplorable, however, is the deafening silence on the part of Democrats.

Sen. Rand Paul tried to oppose the (ultimately successful) nomination of John Brennan as head of the CIA. This nomination comes only days after the Obama Administration released information implying that in cases of emergency, the Administration will be authorized to use drones to strike against US citizens on US soil. This news is enraging and extremely dangerous, yet it failed to draw the attention of the population. NDAA was signed into law on New Year’s Eve, when no one else was looking, and it was left to über conscious human rights workers and lawyers to ring the alarm, amidst the cacophony of the House Speaker reelection and talks about unemployment rates. In times of fear, of distress, and of so-called necessity, history has proven to us that civil liberties are the first to go. Everyone knows by now the evils of the Bush Administration; everyone has denounced the war-mongering, facts-fabricating ways of Dick Cheney and Condoleezza Rice, the escalation to a war that was doomed to fail from the get-go. The collective breath of relief exhaled on the day of Obama’s election has lulled us into a false sense of security, cradled us in the belief that civil rights violations were over, and the Bill of Rights safe and protected by the wide shouldered power of Barack Obama, himself a constitutional lawyer.

That it took a Republican – and a southern one at that – to denounce the failure of the Administration to protect US citizens from arbitrary and unlawful targeted killings is not surprising. That it came from Rand Paul in a record filibuster took everyone by surprise, most of all traditional liberals, usually rallying around Obama as the democratically elected leader that had taken a stand – as then-Senator of Illinois – against the war in Iraq. The truth is, there is no political voice loud enough to speak out against the ever expanding use of drones in US foreign policy, let alone domestic policy. It took a libertarian, overly decried by the left for his position on women’s rights and civil rights, ironically enough, to say what should have been on everyone’s mind: “Where is the Barack Obama of 2007? (…) If there were an ounce of courage in (the Senate), I would be joined by many other senators. Are we going to give up our rights to politicians?” He later elaborated:

“When I asked the president, ‘Can you kill an American on American soil,’ it should have been an easy answer. It’s an easy question. It should have been a resounding an unequivocal, ‘No.’ The president’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that. The president says, ‘I haven’t killed anyone yet.’ He goes on to say, ‘And I have no intention of killing Americans. But I might.’ Is that enough? Are we satisfied by that?”

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Courtesy of The Onion

The good news is, Attorney General Eric Holder took the time to personally answer Sen. Rand Paul’s concerns in a letter. The bad news is, the letter’s content is as much subject to concern over civil liberties than anyone should have been before and during the filibuster. Holder tried to be clear and concise, claiming, ““It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ “The answer to that question is no.” But what does Eric Holder mean by “engaged in combat”?  Those terms are clearly a call-back to the Bush Administration’s worryingly broad definition of combat and combatants, dating back to a Pentagon memo in 2004 basically referring to any Guantanamo Bay inmate as an “enemy combatant”, then clearly expanding the laws of war to anyone in Afghanistan that could be more or less linked to terrorism activities, including drug lords. The War on Terror is well and alive, carrying with it a reading and interpretation of the laws of war that could be summed up by Bush’s infamous phrase, “you are with us or against us”. Ryan Goodman, in an excellent opinion piece released today in the New York Times, explains:

In a 2010 Fox News interview, under pressure to explain whether the Obama administration was any closer to capturing or killing Osama bin Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we have gotten closer because we have been able to kill a number of their trainers, their operational people, their financiers.” That revelation — killing financiers — appears not to have been noticed very widely.

As I have written, sweeping financiers into the group of people who can be killed in armed conflict stretches the laws of war beyond recognition. But this is not the only stretch the Obama administration seems to have made. The administration still hasn’t disavowed its stance, disclosed last May in a New York Times article, that military-age males killed in a strike zone are counted as combatants absent explicit posthumous evidence proving otherwise.

Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.

Some will claim that despite concerns from those of us on the very left, Sen. Rand Paul’s filibuster was, indeed, bipartisan when Sen. Ron Wyden (D-OR.) joined in. But is this enough? Will there still be massive national silence, especially from the left, regarding Obama’s law enforcement and military policies in clear defiance of the right to due process? If the 2004 – and later 2006, in the Military Commission Act – definition of “enemy combatant” has generated an outcry from opposants to the Bush Administration, where is the uproar today? Is there still a belief among the majority of Americans affiliating themselves with the Democratic Party that Obama is the anti-war candidate? Or has the war machine created such an intense feeling of fear and dread among the population that any violation of civil rights are acceptable, as long as drones are only killing “the enemy”? In every society on the verge of a democratic breakdown, signs have appeared to be massively erected in neon colors around the time an “enemy” of some sort has emerged; once distant and foreign and justifying the deployment of armed forces abroad – resulting in a bloated Defence budget – the “enemy” then moved closer to the shore, until it infiltrated the regular population.

Of course, any call against war, against military action, against violation of international law is met with extreme sarcasm on the majority of the Republicans, first of them Sen. John McCain, coming to the lectern to say the following:

“…to somehow say that someone who disagrees with American policy — and even may demonstrate against it — is somehow a member of an organization which makes that individual an enemy combatant is simply false. It is simply false. (…) “The country needs more senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he’s talking about.”

That scathing comment said, John McCain was joined by Sen. Lindsay Graham. When asked if the question of whether the President could act on a US citizen on US soil, Graham simply replied: “I don’t think that question deserves an answer”. The problem is, it is the only question, and we, the people, deserve an answer. The irony of two formidable opponents of the Obama Administration on other domestic issues suddenly supporting the President and calling a filibuster a waste of time is not lost on the observer.

The most remarkable response to Rand Paul’s filibuster, however, came from John Yoo, the lawyer most known for releasing a memo under the Bush Administration authorizing the use of torture on aforementioned enemy combatants, children included. John Yoo is currently teaching law at UC Berkeley. Alongside McCain and Graham, Yoo was quick to denounce the filibuster as a childish maneuver that could only come from anti-war utopists with no grasp on reality:

“I admire libertarians but I think Rand Paul’s filibuster in many ways is very much what libertarians do, they make these very symbolic gestures, standing for some extreme position (…) It sort of reminds me of young kids when they first read The Fountainhead or Atlas Shrugged and they suddenly think that federal taxation equals slavery and they’re not going to pay any federal taxes anymore.”

Once again, the irony of a lawyer agreeing to the use of interrogation techniques clearly prohibited by law trying to disprove an intervention on the very values the Constitution stands for is a little bit too unbelievable, but John Yoo has somehow worked his way into the inner circle of pre-approved legal minds that would bend the principles backwards just to fit a political machine that would have never stood the Supreme Court test otherwise. There is clearly a lack of understanding on the part of UC Berkeley to allow this man to teach, to form young legal brains, if this is the example of violation of the rule of law we are supposed to uphold. If John Yoo is fit to teach law, there is indeed something very sick in this society, where fundamental principles of liberty are constantly stampeded in order to achieve political gain. John Yoo sold out to the Bush Administration, and unfortunately is still there to tell the tale of the just war, the justifiable means to an end, the low price of the human life and the overpowering grasp of war-mongering governments on their population.

In the meantime, the US Air Force is quietly taking its tally of drones strikes in Afghanistan offline. John Brennan also took his oath of office as Director of the CIA on a Constitution that was missing the Bill of Rights. Speaking of signs…