The Wall Street Journal has a weekend editorial on the same topic as my National Journal post below, Drone Wars, January 9, 2010. Interestingly, I find myself believing that the WSJ editorial gets it, if not precisely wrong, at least puts the emphasis exactly backwards. The WSJ editorial is primarily concerned to defend the “war” frame as a legal proposition for the global war on terror, and through that lens defend Predator drone attacks. Only secondarily does it offer the idea of customary self-defense law, not necessarily part of an “armed conflict” as defined under IHL – meaning, treaties such as the Geneva Conventions.
I think the WSJ’s priorities here are part of the problem – not precisely wrong, but the wrong order of priority. You can defend, as I do, the idea of a war on terror as a strategic frame for addressing terrorism – without, however, believing that you get or need all the legal particulars of a legal state of war everywhere on the globe. The better way to approach this gap between the strategic frame and the law is that even though the strategic “war on terror” is not a war in a legal sense in all places in the world anywhere a target happens to located, the gap is filled by customary law of self-defense.
The Obama, Bush, and Clinton administrations apparently believed that they were on firmer legal ground going after “combatants” in an “armed conflict,” rather than relying on the customary law of self defense as an independent ground for the use of force. Certainly it sounded better, as a law-PR matter, to say that one was targeting “combatants.” What these administrations seemingly neglected to consider, as a legal matter, is that law of war treaties and customary law defining armed conflict actually have conditions and thresholds that must be met before all the particulars of the laws of war kick in. Armed conflict in a legal sense is lex specialis, and you get its particulars only if the circumstances meet either the treaty law, in the case of inter-state conflict, or the customary law standards for armed conflict with a non-state actor, which requires sustained, persistent fighting and, in my view, in a place, even if loosely defined, and not simply the whole planet. Armed conflict can break out in new places with a nonstate actor, but it does have to meet those thresholds.
(There is a problem here, one that I won’t address fully, but is important and not really much noticed. Although a new “armed conflict” can get going outside of existing ones, the bias in this way of conceiving of it is that (absent the self-defense rationale, and assuming the territorial contraints and sustained fighting thresholds as I have described them) a “new” theater of armed conflict can be initiated by the non-state actors, where the NSA chooses to fight, but not by the state forces. But notice that this isn’t really an issue for the legal frame for which non-state actor versus state conflicts were originally conceived, internal conflicts and civil wars in a territory; the territory is the national territory and so the problem of “global” war does not really arise. It arises only if one accepts that a state can only fight in an armed conflict and armed conflict is territorial and theater-defined as a matter of law, but for that reason a state cannot initiate that use of force in a military sense without violating some human rights norms in revving up, so to speak, the fighting to a level at which an armed conflict exists. This is a separate issue, however, and I won’t say more about it here. It isn’t a problem, anyway, under self-defense, which was partly why it was not an issue in the past. Framed the way the US has been framing its war on terror, however, it introduces yet another legal asymmetry in “asymmetrical warfare.”)
If it does not meet those thresholds, then, so far as the “international community” is concerned, the applicable law is the full weight of human rights law, under a view (never accepted by the United States) that the most important human rights treaty in this matter, the International Covenant on Civil and Political Rights, applies to the acts of US agents outside of the territory of the United States. That is the basis, for example, on which the claim of “extrajudicial execution” is made against US Predator strikes – particularly in places like Yemen or Somalia, in which, although there are Al Qaeda targets present, it is difficult to make out a state of armed conflict with a non-state actor, because the fighting is not sufficiently persistent or sustained.
To be sure, the customary law standards for armed conflict with a non-state actor do not make a huge amount of sense in a borderless sense – they were conceived as a threshold for the application of Common Article Three of the Geneva Conventions, which covers internal and civil wars with non-state actor, and not for transnational terrorists who migrate around to many different places. It was an innovation of the US Supreme Court in Hamdan – wanting the substantive standards of CA3 and willing to say whatever seemed necessary to get them – to declare that CA3 could apply to a borderless terrorist group such as Al Qaeda when it had never been conceived as a provision that applied outside of the traditional idea of civil war, internal to a state’s territory, with perhaps some spillover to safe havens, but not something in which territory was irrelevant. Which is to say, Hamdan implicitly endorsed the idea of a global war on terror, although the idea of a global war in armed conflict terms is exceedingly … innovative is perhaps the kindest word. It would have been better if the Supreme Court had simply said that there were minimum standards that always applied, and they were best stated in CA3, rather than saying that CA3 standards applied because it was a CA3 conflict. If you are going after results-jurisprudence, just say so.
The better approach to this, rather than a global war on terror of the kind that the WSJ editorial goes to great, if mistaken, lengths to defend, is the customary law of self-defense. That’s what the WSJ ought to be calling for first, rather than as an afterthought. That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense – if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.
The sovereign ”consent” argument that the WSJ puts first is true, as far as it goes – but it really ought to be the fall-back position. Do we really think that if Yemen or Somalia refused to do anything about Al Qaeda operating from those territories, and refused to grant consent, the United States should or would refrain from attacking? Consent is nice, but it is secondary to how the US in fact sees international law on this point, and how in fact it would behave. Ask candidate Obama who, after all, promised the American public that he would go after Al Qaeda in Pakistan, with or without Pakistan’s consent. He was right, not just as a strategic matter, but as a matter of international law. None of this is particular to the United States; this is how other great powers in the world that actually address military threats have behaved and would behave in regards to safe havens.
The US needs to plainly and publicly shift back to reliance upon customary law of self-defense in its Predator drone policies. Not on a “global” war on terror, but on customary self-defense. One reason this matters is that in the complex intertwining of activist, government, international organization, and academic positions around these debates, perception matters a lot. One of the perceptions is that CIA officers engaged in these activities are legally much more vulnerable than a uniformed military person doing the identical task. In making plain its reliance upon self-defense as the underlying legal basis for its targeted killing policy, the Obama administration has an important opportunity to make clear that self-defense law, which is not limited to armed conflict, allows – as US domestic law has since at least 1947 and the legislation creating the CIA – the use of force by civilian agents. The reasons for using civilian agents versus military personnel are complicated – sometimes involving deniability, and other things. But an assertion of self-defense as the legal basis would allow the Obama administration to affirm that it is lawful, under both international and domestic law, for CIA agents to engage in these activities, and that legal moves against them in other countries, now or in the future, would be distinctly unfriendlly.
The middle officials of the CIA in my estimation have doubts about that now – they see the whole activity moving the way that detention and interrogation did after 9/11, in part because targeting and detention, as Columbia Law professor Matthew Waxman has pointed out, have distinct similarities. It is a point that both Waxman and Benjamin Wittes make in Shane Harris’ National Journal article. The advocacy international community, for its part, seeks to move the debate that way. Interrogation and detention have been made very legally uncertain activities for CIA personnel, and one part of targeted killing – only a part, however – is an incentive to kill rather than try to detain. The advocacy folks would like to make Predator drone attacks as legally uncertain as detention and interrogation – and indications, at least in my experience, are that it does not take much uncertainty about what the future might hold in the way of Holder-style announcements, the possibility of indictments or arrest in Spain or other jurisdictions, and all that stretching into a long and unknown future, to induce changes in behavior by US personnel. This is all very bad for the Obama administration, and it remains to be seen if it will step up to the plate and make clear that it stands behind its people, including its civilian officials in the CIA who are most vulnerable, on targeted killing.
It also remains to be seen whether Obama administration would actually be believed, as well. It is an administration at risk of becoming known for saying merely whatever it thinks expedient in the moment, to whatever audience, for whatever ends. You might disagree and it might indeed be an unfair characterization – but, again in my experience, that is what people in the relevant positions think. The perception matters. This is a legal position, however, and if the administration wants to reduce the legal uncertainty, it needs to have its legal officials state its legal position plainly and put themselves personally on the record as a matter of the US view of the law. It matters if Harold Koh has reaffirmed his predecessors’ view on self-defense.
To that end, as well as the United States putting itself plainly on the record as to its legal rationales in the international community for targeted killing, the Obama administration needs to carry itself both beyond the narrow, inadequate, and not actually accurate legal position pressed by the WSJ editorial – and back to its customary law roots to the position that the US actually intends when it engages in targeted killing through Predators or other means, which is to say, self-defense. The easiest way for the United States to make clear that this is its position as to what international law actually is, and that it is not an innovation on the US part nor a novelty, would be for it to return to Abraham Sofaer’s 1989 address on self-defense, a quite comprehensive speech on this topic regarding non-state actor terrorists, sovereignty and territory, the assassination ban, and other important topics in this area. The WSJ editorial board needs to go back and re-read this speech, and press for it to be reaffirmed as US legal policy, and get away from its mistaken view that the way to approach targeted killing is as yet another way of reaffirming that this is a global war. Self-defense gives the discretionary ability to attack anywhere in the world where a target is located, without having to make claims about a state of armed conflict everywhere and always across the world.
And the Obama administration, for its part, needs to reach beyond its indubitable state practice of targeted killing, and offer some opinio juris on the subject – i.e., its public and declared view of what international law on this topic is, as far as the US is concerned. It should offer an affirmative rationale based in the law as the US has always understood it, and never disavowed – but not exactly reaffirmed in the last twenty years, either. Let’s reduce the legal uncertainty and draw some firm lines. A joint letter, signed by (oh, I don’t know, let’s dream) the general counsels or equivalents of DOS, DOD, DOJ, NSC, CIA, DNI, DHS, White House counsel, and perhaps a couple of others, reaffirming in toto the Sofaer address, and adding that any move by foreign states, courts, prosecutors, or international tribunals to go after American personnel, whether uniformed, civilian, or civilian contractors working to US government specifications, would be regarded as a distinctly unfriendly act.
(I’ll probably go back and fix some things later, but don’t have time now.)
orca says:
Doesn’t the “customary law of self-defense” require an imminent threat to be legal?
In any case, the Taliban have never attacked America, so claiming self-defense is…a stretch.
January 9, 2010, 5:43 pmThe Volokh Conspiracy » Blog Archive » National Journal on Targeted Killing and Predator Drone Strikes says:
[...] Thanks, Glenn, for the Instalanche! Please see the further post above, on what I think the US legal position ought to be — what the Obama administration should be stating as its view of the relevant international law, [...]
January 9, 2010, 6:04 pmPeteP says:
How do you find ‘justification’ for bombing a terrorist training camp or hide-out in the ‘customary law of self-defense’ ?
How far do you think ‘premptory elimination of a likely threat’ gets you under that policy ? Can I go blow up the local gang-banger’s clubouse based on ‘they threatened me, and last month one of them killed a friend of mine, so I had to defend myself’ ???
Come on already …. your concept is ludicrous. It also, sadly, would seem to lead towards the incredibly wrong Obama position that ‘terrorists are merely criminals, to be treated as such’.
Are you trying to say, for instance, that while we might have the right to ARREST Al-Zawahiri, we have no right to try to KILL him before he kills more of us ? after all, there is no provable ‘imminent threat’ that an American life is in danger ‘right here, right now’, to justify it as ‘self defense’, and self defense is NEVER allowed, AFAIK, to account for why someone killed someone based on ‘what the other person would probably do at some point in the future’.
The ONLY paradigm that makes any sense is ‘the terrorists are enemy combatants ( not soldiers ) in time of war’, and thus subject to death in this ongoing combat at any time.
January 9, 2010, 6:07 pmJg says:
It is good that war is so terrible, lest we grow too fond of it.
W.T. Sherman
January 9, 2010, 6:26 pmFran A says:
I support defending our country. I even support targeted assassinations as we did in the olden days – think how much more simple it would have been to kill Sadam Hussein that to make the mess in Iraq that we did.
January 9, 2010, 6:42 pmHowever, my feeling is that under Obama, more so than under Bush, we have become much more careless about killing innocent or semi-innocent civilians. For what it’s worth, had Bush followed the program that Obama is following now, I believe that the Dems would have called him on it.
JFM says:
Jg (above at 6:26 PM), if you check, I think you will find that your quotation comes from Robert E. Lee rather than William T. Sherman. Sherman is most often quoted having said “War is hell” and “War is cruelty and you cannot refine it.”
January 9, 2010, 6:43 pmMikhail Koulikov says:
A joint letter, signed by (oh, I don’t know, let’s dream) the general counsels or equivalents of DOS, DOD, DOJ, NSC, CIA, DNI, DHS, White House counsel, and perhaps a couple of others, reaffirming in toto the Sofaer address, and adding that any move by foreign states, courts, prosecutors, or international tribunals to go after American personnel, whether uniformed, civilian, or civilian contractors working to US government specifications, would be regarded as a distinctly unfriendly act.
So, for all that’s worth, in your ideal view, the U.S. is *the* global ruler/bully, doing what we will to who we will, just because we feel threatened, and don’t you (the rest of the world) as much as dare resist.
All I would like to know is whether that is in fact what you think would be the perfect state of global affairs.
January 9, 2010, 6:46 pmKenneth Anderson says:
Mikhail Koulikov: On this matter, no, I don’t think the US would be behaving as the global ruler/bully. This is not an assertion of US exceptionalism. As the post said earlier, on this matter, the US position would be no different than that taken by other powers that actually have to address military concerns – that is, not the NATO dependencies such as Germany or Italy or Spain – but states with serious military concerns whether India or Russia or Turkey or Columbia or, for that matter, Saudi Arabia, which has had no trouble recently undertaking attacks on third party safe havens. International law is made by in the first place by the practice of states and expressed through their statements as to what they understand the binding law to be – their opinio juris – and on this matter, state practice is pretty clear. This is not a question of “good states” or “bad states” – it’s a question of the practices of states and their public assertions of how they view international law on the issue.
January 9, 2010, 7:29 pmyankee says:
The government saying whatever it thinks expedient at the moment? Next you’ll be telling me that advertisers’ assessments of their products aren’t fair and balanced.
Would? Of course not; governments typically feel entitled to have their military do anything they think expedient, and the U.S. government has the most powerful military in the world.
Hypothetical: Russia determines that some Chechen separatists are operating out of Seattle, and they might have designs on attacking Russia., and the U.S. refuses or fails to do anything about them (say, because it’s unconvinced they’re actually terrorists, or just fails to locate them). Russia responds by firing some “targeted” missiles into some buildings in Seattle where it thinks the alleged terrorists are located, and claims it’s acting in “self-defense.” Should the U.S. really respond that yes, that was A-OK?
January 9, 2010, 7:37 pmdrunkdriver says:
Obama is just continuing what Bush was doing. Any difference is in degree and not kind. After the highly negative reaction to capturing terrorists, we started shifting focus while Bush was still in office, to assassinations. It’s always been well-known that other casualties result from these strikes. But as it’s turned out, for whatever reason, the American public and to some degree world opinion, is less upset by this, than by the capture/interrogate/Guantanamo tactic.
January 9, 2010, 7:55 pmorca says:
Oh my, are we really advocating America taking legal advice from Saudi Arabia?
January 9, 2010, 8:00 pmSwen Swenson says:
Good point. The Chinese consider the Dalai Lama a threat as the leader of the Tibetan separatists. So under the customary law of self-defense they would be justified in sending a few fighter jets to level his residence in India right? Where would this customary law of self-defense end?
January 9, 2010, 9:13 pmKirk Lazarus says:
Or maybe because their “failed state” judicial system wont let them do anything. ;)
A good example that shows the hollowness of claims that this is not American exceptionalism. That will likely bother many non-Americans. If I were American I would probably by chiefly bothered by the fact that permitting a government agency to engage in “targeted killing” effectively permits the government to kill anyone, US citizen or not, when they are outside US territory. Targeted killing is not subject to any judicial review, the reasons are always “classified”.
January 9, 2010, 9:18 pmG. May says:
This just about sums up the realities and the history of it. The bizarre application of domestic law to the participants of this conflict changes “killing an enemy combatant” to “assassinations”. So our boys (military too, not just CIA) can go ahead and perform a summary execution before the trial, but if they capture them they’d better make sure the area is quarantined for investigation, take down the names of witnesses, ensure there’s a chain of custody for the evidence, and provide the “accused” with all the legal apparatus to which he is clearly entitled.
As Mr. Anderson rightfully points out – the incentive is to kill. As for his opinion that the priorities are off, I’m not persuaded that the customary right of self defense is the stronger for reasons some of the other commenters provide.
January 9, 2010, 9:18 pmyankee says:
Well, the Dalai Lama preaches nonviolence and as far as I know hasn’t been linked to any violent resistance (is there any violent resistance in Tibet?), so I think this one is distinguishable. I picked the Chechen example because there really is a violent Chechen separatist movement and they at least sometimes engage in terrorism rather than attacking military targets. According to Anderson’s theory of “self-defense,” we would have no grounds for challenging Russia’s decision to level some buildings in Seattle if Russia thought there were Chechen separatist leaders there and we hadn’t caught them.
January 9, 2010, 9:30 pmFat Man says:
Works for me.
January 9, 2010, 10:38 pmJohn Moore says:
Perhaps a bit more of this noodling and the internationalists here will start to understand: when it comes to the international actions of states, it really is about power. There is no police to enforce the “international law.”
Russia won’t level some building in Seattle because of what America would in response.
The US may blow up some buildings or trucks or huts in Yemen, Somalia or Pakistan because those governments are unable to force us to stop.
The importance of law in these cases is only the following:
1) domestically, will we shoot ourselves in the foot by prosecuting our own agents (the answer would seem to be yes)
2) internationally, it may affect perceptions of us by others in ways that matter
3) the (illegitimate, IMHO) ICC might harass our officers and agents, until we got an administration with cojones, at which point the ICC would be deterred by our own assertion of real power.
January 9, 2010, 10:38 pmyankee says:
Anderson appears to be writing from the perspective of treating international law as a legitimate form of “law,” not writing from the perspective of “international law is illegitimate, Obama should feel free to ignore it, and the only question is what noises to make for realpolitik purposes.”
January 9, 2010, 11:03 pmorca says:
Yes there.
It’s called the Central Bank of China.
They cut us off and we look like Darfur in a few months.
Everything we do these days has to be approved by them.
January 9, 2010, 11:22 pmRicardo says:
The U.S. prosecuted Manuel Noriega under domestic law. Going further back in time, a New Mexico court indicted Pancho Villa for the murder of American civilians when he led his forces in a cross-border raid into the U.S. in the course of the Mexican civil war. It’s not exactly unprecedented to prosecute even quasi-legitimate foreign military officials for domestic crimes.
The relevant distinction is whether U.S. forces have someone in their custody or under their control. If not, they can kill the person as an enemy combatant subject to rules of engagement. If so, then protections for captured prisoners do start to kick in.
January 9, 2010, 11:30 pmJohn Moore says:
Which leads to the perverse incentive to kill the person rather than capture him. When that becomes the case, perhaps one should consider changing the legal scheme mandating the protections.
January 9, 2010, 11:32 pmArthurKirkland says:
Yes, the United States has the power to do as it wishes.
The misuse of that power would create enemies, who would decline to fight on the terms we wish, inflicting injuries that likely would cause us to regret our abuses of power.
A cascade of fools’ errands abroad — Iraq, Iran, Yemen, Pakistan today, Cuba, Venezuela and others when the warmongers next occupy the White House — coupled with vulnerability at home portends poorly.
Anyone who believes we will kill our way out of this seems destined to be surprised and disappointed.
January 9, 2010, 11:36 pmRicardo says:
It’s an assumption on your part that it is perverse. The objective of war is to destroy the other side’s war-making ability or remove the other side’s effective control of a certain territory. Often, that is done by killing enough of the other side’s soldiers that those remaining surrender with the knowledge that they will be treated decently and in accordance with international law. It’s not clear to me what you are advocating. The wholesale repeal of the Geneva Conventions? Removing any protection for anyone the executive branch decides in its wisdom to designate as an enemy combatant?
Either of these policies would have perverse and potentially harmful consequences as well which is part of the reason why prisoner protections exist in the first place. If there is an argument to be made for removing prisoner protections, you haven’t made it.
January 9, 2010, 11:47 pmJohn Moore says:
ArthurKirkland seems to believe that it is our actions that create our enemies.
That is a common, and silly, view from the left.
January 9, 2010, 11:48 pmFat Man says:
“This is not an assertion of US exceptionalism.”
“A good example that shows the hollowness of claims that this is not American exceptionalism.”
I am an American exceptionalist. And proud of it. No one who is not an American exceptionalist should hold any high office in our Republic.
January 9, 2010, 11:52 pmJohn Moore says:
Fat Man is correct (except for the typo of leaving out the second “not”).
Obama, however, is not an American exceptionalist. When asked about it, he commented on how the British also consider themselves exceptional, etc. By that response, he made it clear that he sees nothing exceptional about America.
I do agree with those who assert that the use of Predators is ultimately justified by something akin to American exceptionalism – America’s unusually powerful position.
January 9, 2010, 11:57 pmdrunkdriver says:
Dunno whether that’s perverse or not; but I’ve been bemused by the rumor that UBL’s aides are instructed to kill him, rather than let him be captured– as if the US would even try to capture him, rather than kill him. He seems not to appreciate that letting himself be captured alive would be far worse for us than if we killed him.
January 10, 2010, 12:08 amRicardo says:
In terms of Thomas Sowell’s Conflict of Visions, it seems Obama is the one with the constrained view of humanity while those advocating “American exceptionalism” adopt the unconstrained view. That’s one of several ironies that modern conservatism has given us. Burke certainly rejected any idea of British Exceptionalism when it came to Britain’s rule over the American colonies or the plunder that the British East India Company engaged in on the Indian subcontinent.
January 10, 2010, 12:10 amHey Skipper says:
In terms of Thomas Sowell’s Conflict of Visions, it seems Obama is the one with the constrained view of humanity while those advocating “American exceptionalism” adopt the unconstrained view.
I happen to be reading that book right now, and am about three quarters of the way through. It is truly an outstanding book.
Sowell is very clear about what he means by constrained and unconstrained, and neither has anything to do with advocating “American exceptionalism.”
January 10, 2010, 12:38 amArthurKirkland says:
Perhaps, John, you are the kind of man who would not become the enemy of a foreign power that invaded your country mistakenly, then killed your innocent family or friends (as “collateral damage”) while botching a seemingly endless occupation.
In any event, I encourage you to prepare for surprise and disappointment.
January 10, 2010, 1:26 amMnZ says:
As I think about it more, I realize the utter absurdity of this entire debate regarding targeted killings.
It seems like the reasons for the prohibition of targeted killings in international law are three-fold.
1) Targeted killings are of little strategic values in traditional warfare.
2) The prohibition of targeted killings were intended to deny assassins the legal protections provided to soldiers. Assassins that were caught by the opponent faction could be executed.
3) The powers-that-be wanted to be able to send their young men off to war while they themselves could go to sleep soundly.
However, do any of these reasons offer a justification for continued observance of the law in the current context?
1) The war with Al Qaeda is not traditional warfare, so one can make a pretty convincing argument that targeted killings may be pretty effective against them.
2) Al Qaeda is not really interested in providing soldiers’ legal protections in the first place. Moreover, Al Qaeda have no access to the “assassins” flying the drones.
3) Al Qaeda would assassinate western leader if they could.
Can anyone give me any good reasons why we should obey a law that appears to supply no utility and only increases our vulnerability?
P.S. Orca and Alan, before you answer, I would like to remind you that collateral damage is a separate issue. We are talking about targeted killings. A targeted killing might result in collateral damage (or it may not). That is not a reason to declare targeted killings illegal.
January 10, 2010, 1:51 amorca says:
Well, our Predator attacks legitimize enemy attacks like the recent one that took out 7 CIA officers (and 9/11 if al Qaeda just claims they had a legitimate target in one of the buildings).
There are plenty of countries (Burma, China, Sudan, etc.) that love the fact that the United States now wallows in the sewer of torture and assassinations.
January 10, 2010, 2:12 amRicardo says:
I strongly disagree and without a similarly clear definition from you about how you define American exceptionalism, I don’t see this assertion of yours getting off the ground.
January 10, 2010, 6:32 amRicardo says:
Let’s put it this way: one of the best opportunities we had in retrospect for preventing the attack on flight 253 was to listen to what the senior Abdulmutallab told the CIA and share that information across agencies. In other words, it was a prominent member of Nigeria’s Muslim community who wound up coming forward and giving the U.S. government information it could have used to disrupt the plot. The U.S. needs more people like that, not less. It’s less a matter of making enemies and more about making friends among the moderates and secularists who may still not want to see mistreatment of prisoners or “collateral damage” visited upon their countries.
January 10, 2010, 6:46 amHey Skipper says:
It gets off the ground by Sowell’s use of the terms. Constrained means that there are very strict limits to human reason and rationality; consequently, no one, and intellectuals in particular, has the knowledge to make correct decisions for something as complex as a society. In contrast, the unconstrained vision insists that human reason is sufficient for intellectuals to make valid societal decisions for everyone else.
The case for American exceptionalism has nothing to do with the limits of human knowledge and reason; rather, it rests upon very simple concepts. For instance, to be German or Japanese, you have to be German or Japanese. What do you have to be to be an American? The answer to that question makes America an exceptional country.
Second example: America is the only advanced and religiously vibrant country, while also being the first to separate church and state. That too is exceptional.
Neither example requires any exceptional demands on reason or knowledge; therefore, Sowell’s use of the terms constrained and unconstrained simply do not apply: adherents to either approach could reach the same conclusions regarding American exceptionalism.
January 10, 2010, 7:57 amdwight says:
You state: “self-defense law, which is not limited to armed conflict,” as if it is settled law. If so, what is the authority for this proposition?
Granted, Art 2(4) only restricts the threat or use of force against states – not non-state actors – and Art 51 also probably does not apply, but even going to customary law as you do, then you either need to be defending against actual attacks or, even with the notion of anticipatory self-defence as explicated in the Caroline affair, it is required that the ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation:’ i.e. you must be heading off actual attacks which have already been set in motion but which haven’t struck yet (but will imminently).
January 10, 2010, 8:17 amHoward Gilbert says:
“it is difficult to make out a state of armed conflict with a non-state actor, because the fighting is not sufficiently persistent or sustained.”
That is not exactly the criteria:
“In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”).” ICRC Direct Participation in Hostilities
The rule is not about continuous combat. Fighting can be sporadic, so long as the enemy personnel when they are not fighting are continuously engaged in preparation for the next fight. Mao’s army retained its identity during the Long March even though the purpose was to avoid conflict until they were ready to start again. George Washington lacked the troops to defend against a full British assault and spent much of the war trying to avoid combat. Napoleon was defeated by a Russian army that never fired a shot.
The Taliban force was a state actor when it was the government of Afghanistan, although over 20% of their army consisted of Pashtun tribal militia from the Pakistan side of the border. In the face of US air attacks the 70% or so of the army that consisted of Afghan Pashtun tribal militia simply went home. They did not surrender and obviously have not entirely stopped fighting. A new government was installed in Kabul, but it is not clear how much of the country it really controls. I suggest that it is not clear if the enemy is a state or non-state actor, and the problem is that IHL has no way to resolve the question.
After Pearl Harbor, the Japanese invaded Hong Kong, the Philippines, Indochina, the East Indies. They occupied these areas. However, suppose instead of conquest they had sent fewer troops and only started a low level conflict. Each area in which Japanese troops were active would still have been part of WWII.
I don’t see why the rules are different for a sort-of-state-but-also-non-state actor. They can send armed units engaged in continuous combat function to locations where they do not conquer the country but neither, on the other hand, does any recognized government actually control the territory. It is a low level invasion. As long as the armed conflict is continuing (which does not require fighting every day) then the status of such dispatched forces is no different from any other invading but not yet conquering military force that happens to be wearing uniforms and reports (somewhere on the globe) to a government that does actually control at least a few square miles of recognized sovereign territory.
In other words, did the first 25 Japanese troops to set foot in the East Indies in 1942 differ fundamentally in kind from 25 al Qaeda/Taliban operators today simply because the authority of the Japanese government over Japan was unquestioned while the continuing control of the Taliban in Afghanistan is a matter of continuing armed conflict?
Conflicts spread if one of the parties to the conflict is inclined to spread it. The conflict does not spread only if you dispatch enough troops to actually conquer a foreign country. Dispatch an armed force engaged in continuous combat function and that is enough. Now if the government of the target territory is able to respond with enough force to capture or destroy the armed force, the conflict never really spread. However, if they are unwilling or unable to respond effectively, then the conflict has spread geographically and the use of lethal force in the new theater of operations is justified.
January 10, 2010, 9:41 amKenneth Anderson says:
Howard Gilbert: You are correct to say that I’m not putting down a precise legal definition of when the threshold is crossed. That’s on purpose, as it gets into a technical thicket of exactly who and what to cite that is too much for a blog post. However, I think it is premature to be citing the ICRC DPH study as authority here, though I think it is relevant … however, in any case I am not sure that the DPH language here is that which is relevant to defining a theater of conflict as distinguished from particular persons taking direct participation in hostilities. (By the way, I thought your response to Deborah Pearlstein on OJ re the latest detention decision was very interesting.)
January 10, 2010, 10:30 amdwight says:
Kenneth, all this has been quite interesting to read, but does it not boil down to the definition of self-defense in customary international law? At best, at least according to settled law, anticipatory self-defense is allowed per Caroline doctrine only when the necessity is instant and overwhelming, leaving no choice and no time for deliberation.
Since 9/11 we have been regaled with a new pre-emption doctrine in government communications via WH press officers, asking us if we want to fight the terrorists ‘over there, or at home’ and warning us that we don’t want the ‘smoking gun to be a mushroom cloud’ … but never has the U.S. given this new ‘pumped up’ doctrine of pre-emption as a legal basis for its actions. As you will recall, the rationale for Iraq was given to be the breach of Security Council resolutions (ESP. 687) from the first gulf war. John C Yoo actually went so far in a memorandum as to say that anticipatory self defense (though I would more accurately call it pre-emption, as Yoo’s notion is far removed from the situation contemplated in Caroline) provided a legal foundation, but never has it been officially claimed by the government.
Is it to be argued that pre-emption – “don’t let the smoking gun be a mushroom cloud” – has become customary international law? If not, what is the basis for these predator drone strikes? If pre-emption is not being argued as emergent based on state practice and opinio iuris sive necessitatis, then are you arguing that the drone strikes are valid under anticipatory – Caroline affair – self defense?
If neither of these, then what is the basis?
January 10, 2010, 11:08 amMark says:
Hypothetical: Russia determines that some Chechen separatists are operating out of Seattle, and they might have designs on attacking Russia., and the U.S. refuses or fails to do anything about them (say, because it’s unconvinced they’re actually terrorists, or just fails to locate them). Russia responds by firing some “targeted” missiles into some buildings in Seattle where it thinks the alleged terrorists are located, and claims it’s acting in “self-defense.” Should the U.S. really respond that yes, that was A-OK?
Every time we have this discussion, people keep smugly wheeling this scenario out as if it proves anything. It doesn’t.
To answer your hypothetical: If the Chechen terrorists were the real deal, and the U.S. Government genuinely unable or unwilling to do anything about it, then of course the Russians would have every right to attack, given that by protecting the terrorists the United States would be committing an act of war against them! And then of course, the U.S. would have every right to then resist the Russian attack. There would be a war and we’d see who wins. So what was your point again?
January 10, 2010, 11:13 amG. May says:
Pancho Villa? I’d submit that case preceded the modern concepts of international laws we’re discussing by a timeframe large enough to make it irrelevant.
Do you think comparing a sitting head of state indicted on drug charges and money laundering to low level insurgents and terrorists operating on the battlefield is apt?
Both of these examples seem like apples to oranges.
As far as custody and control go, rest assured that the actions taken by the current administration will ensure that the numbers taken into custody or under control will decline.
January 10, 2010, 11:15 amdwight says:
Mark, the key word here is might. Once again, such a situation is not a clearcut example of self defense according to international customary law. It is an example of the purported new doctrine of pre-emption – the “don’t let the smoking gun be a mushroom cloud” argument. International customary law on self defense is quite explicit, to my mind, with regard to anticipatory self defense: the necessity to avert an attack must be instant and overwhelming, leaving no choice and no time for deliberation.
If it was a dead certain fact that Chechens were operating out of Seattle and there was incontrovertible evidence that they were in the midst of carrying out a huge attack that would strike Russia within hours then, yes, anticipatory self defense would allow Russia to strike these targets in US territory. However, just based on the intel that they ‘might’ have ‘designs’… the only justification for a response to that is this new pumped up ‘pre-emption’ doctrine which purports to avoid the smoking gun being a mushroom cloud.
So, Mark, and Kenneth… if you are indeed arguing that the doctrine of pre-empting people who ‘might’ have ‘designs’ is valid, then you will need to show the state practice and opinio iuris which constitutes the development of such an international customary law.
January 10, 2010, 11:39 amwillieboy says:
I think there is another issue here that I don’t see being addressed. What will the Obama administration do should world courts view these attacks as war crimes and come after our drone pilots?
January 10, 2010, 11:41 amKenneth Anderson says:
Dwight: I don’t think the Caroline language is the last word on what the United States, under many administrations, has seen as the meaning of customary self-defense, at least not the Caroline language taken literally. For that matter, the Caroline language is disputed by others who think that the UN Charter replaced any such concerns – not a view held by the US, nor by other powers, starting with the permanent members of the Security Council. It is contested. That’s why I recommend reading the Sofaer address, which talks about the US understanding of self-defense. It steers the traditional US line between sweepingly utopian views of international law and rejection of it, opting for a pragmatic middle ground that both accepts it as law but sees it as flexible and pragmatic, evolving according to state practice. Caroline language is best seen as terms of art in an evolving view of state practice. But on this, the Sofaer address is merely reiterating what has always been the US view of international law on the use of force; it’s not a novelty and it’s not weird – the content of customary international law is established by state practice and the assent of states to it as law, through their statements that indicate that they see the practice as binding as law and not merely something they do – opinio juris, so called.
January 10, 2010, 11:47 amMike G says:
“In any case, the Taliban have never attacked America, so claiming self-defense is…a stretch.”
The Taliban never attacked America the way Mussolini never attacked America.
“Good point. The Chinese consider the Dalai Lama a threat as the leader of the Tibetan separatists. So under the customary law of self-defense they would be justified in sending a few fighter jets to level his residence in India right? Where would this customary law of self-defense end?”
I’m sure it’s punctiliousness about international law, and not the practical results of such an action, that’s holding the Chinese back.
January 10, 2010, 12:03 pmdwight says:
Kenneth, then perhaps you are advocating the idea that recent developments, especially in the post 9/11 world, have led to state practice (and assent by other states) to such an extent that customary law on self defense is evolving a new category of pre-emption?
I think this is possible. The strike against it, however, has been the reluctance of the U.S. to officially say that its actions in the war on terror are based on self defense – and specifically a pre-emptive self defense against nascent, not imminent, threats. Yoo in his 2002 memo while at the OLC specifically said this could be relied upon as a ground, but the U.S. chose to go with the breach of SC RES 687 argument.
And I believe you yourself take up this point, where you appear to express some frustration at the U.S. not ‘relying on the customary law of self defense as an independent ground for the use of force.’
I would say that even if the U.S. doesn’t specifically give self-defense as its legal justification for its Warr on Terror actions, that does not necessarily stop other nations viewing it as an underlying justification and assenting to it (explicitly or not), and there are some that would argue it can form state practice for a new pre-emptive doctrine even if pre-emption wasn’t the listed justification.
There would however seem to be some ground to cover in the way of both state practice and opinio iuris: even if the U.S. ‘understanding of self defense’ allows for pre-emption… this on its own would not be enough to constitute a customary law. One could on the other hand point to the 40-odd strong ‘coalition of the willing’ as a broader basis of acceptance for the doctrine.
In any case, if indeed a doctrine of pre-emption is emerging as a form of customary self defense, it would seem to be in the formation stage.
January 10, 2010, 12:06 pmFat Man says:
Let us try it this way. Obama is not an American Exceptionalist. Therefore, Obama should not hold the office he holds in the American Republic.
January 10, 2010, 12:09 pmHoward Gilbert says:
There are two principles that are being confused here. One is the distinction between armed exchanges between two parties that are not engaged in an actual armed conflict. This is the occasional exchange of fire across a DMZ. Here there are questions of retaliation and proportionality of response. Here self defense may involve preemptive strike against an imminent attack. However, once the conflict becomes continuous and transitions to armed conflict, there is no retaliation or preemption because the chronology of individual incidents merges into the continuing conflict.
Then there is the geographic rather than temporal span of a conflict. If the US is engaged in an armed conflict with the Taliban and al Qaeda in Afghanistan, does this extend across the border into Pakistan and can it extend as far as Yemen.
Since there is no bright line that defines the limits of either concept, things get even more complicated when you confuse the geographic question with the temporal language. There is a continuing armed conflict in Afghanistan. Even if that conflict does not geographically extend to Yemen, that does not mean that the legal defense for an armed strike in Yemen must assume a state of peace in Yemen between the US and al Qaeda leading to principles of retaliation, preemption, and proportionality in self defense. It may be that the ongoing conflict in Afghanistan addresses all the temporal rule requirements between the same two parties anywhere in the world (the Graf Spee rather than the Caroline).
Then the geographic question is not whether the Exeter, Ajax, and Achilles were involved in self defense or preemption relative to an imaginary less-than-armed conflict localized to the waters around Uruguay, but rather how international law limited the continuation of an armed conflict in the territory and immediate vicinity of a country that is not a formal participant in the conflict.
For about two hundred years every conflict between the US and any other country was, by definition, a world wide conflict with regard to the 71% of the world’s surface that is open ocean. It was just the occasional bit of neutral coast that was not part of the conflict. Only recently have we stopped thinking of the US as a global naval power and imagined that armed conflicts are somehow defined by the part of them that extends to land.
Especially after the attack on the USS Cole, the US is at war with the Taliban and al Qaeda 12 miles off the shore of Yemen. The legal question is how that conflict is legally effected by that last 12 miles, not the thousands of miles between Afghanistan and Yemen.
January 10, 2010, 12:29 pmFat Man says:
1. Of course Anderson thinks that international law is a legitimate form of law, if he didn’t he would have to work or a living.
In truth international law resembles law in the same way world of warcraft resembles the world, which is to say that international law is a fantasy, that does not, never did, and most likely never will, exist.
2. Of course the President of the United States should feel free to ignore international law, just like he is free to ignore world of warcraft. If that upsets the international law fan-boiz, it is strictly a political calculation whether he wants to try to appease them. My guess is that there are no more than a couple of thousand, most of them academics, and they can be safely ignored.
January 10, 2010, 12:29 pmFat Man says:
There is no way out, but to kill or be killed. Everyone leaves in a pine box, is buried, and then is forgotten. Everyone, no exceptions.
January 10, 2010, 12:36 pmSDN says:
It ends the same place it has always ended: if the Chinese consider losing, say Beijing to a Trident missile load of MIRVS in exchange for the Dalai Lama, then they should go for it.
January 10, 2010, 12:37 pmJR says:
This is a fantastic debate. The realist IR theory school is engaged with a customary self-defense argument, based on the assumption that US power is predominant, and there are concerns emerging regarding how China and other emerging powers could use this same framework to wreak havoc, especially if we are using it to go after non-combatants. Internationalists are concerned that we should, in fact, create rule of law at another level in order to reduce the probability of needless war. There are LT and ST strategic concerns at hand.
What is still getting lost is the distinction which needs to be made between the use of Predators, which are USAF assets, and CIA agents, which are, as the author states, ‘civilian’. Supposedly they become CIA-flown when passing from Afghanistan to Pakistan, but how is this to be monitored? I understand that they are all flown from Nevada, correct me if I am wrong.
Obama clearly entered on the side of the ICC, which I would not conflate with IHL and which goes far beyond being an instrument to enforce compliance with the Geneva Conventions. You can fairly side with internationalists in this debate and not endorse a powerful ICC. Respect for IHL depends on the behavior of the USG and clear US policy directives more than a belligerant ICC.
One more major issue to confront….in Afghanistan Predators were authorized last year (no idea on whether McChrystal has reconsidered this) to attack a list of narcotraffickers. Being in Colombia with new bases authorized, I found this authorization to be intriguing. Even if we are using the realist’s self-defense arguments, they are being stretched still further in any meaningful sense, as the narcotraffickers are definitively not combatants. They may or may not funnel money to the Taliban (the highest ranking narcotrafficker in Helmand, brother to Karzai, was NOT on the list), but does this logically make all people doing business with the Taliban bombeable? This was a USAF order, perhaps they switched it to the CIA?
January 10, 2010, 12:56 pmpc says:
Insurgents are only right when they are Americans, c.f. Revolutionary War, Red Dawn.
January 10, 2010, 1:20 pmJohn Moore says:
I wrote the above, which has drawn derision. However, it was in the context of the current war on terrorists, and the alleged creation of terrorists by our attacks on terrorists.
While our attacks may aid the terrorists in recruiting (or they may not), the cause of our enemies is ideological – the melding of jihadist theology and anti-western extremism with Leninist tactics and ideology by Al Qutb, and the general wackiness of the Wahhabi extremists. This is bolstered by the long history of periodic extremely violent jihadism by Islamists, and the violent and expansionist nature of the religion, as interpreted by many of its adherents.
The resulting movement is not going to stop attacking us if we stop attacking them. They started it, and they will continue until the movement burns out or is defeated. We need to continue to fight the practitioners and supporters of this jihad (thus weakening and disrupting their capabilities) until either they are killed off or die out.
January 10, 2010, 1:41 pmJohn Moore says:
I suspect this is not very important. I would guess that the CIA hand-off is done only so that Pakistan (and Yemen) can claim that the US military is not operating in their territory.
January 10, 2010, 1:43 pmtruth says:
This reads like a UC seminar, not a serious discussion.
Rather than discussions over GWOT vs self defense, the best frame is the legal treatment of piracy. Hang them as available as outlaws.
The major problem is with the capture of international law by Leftists focused on eliminating the ability of the West to protect their civilization. So there are ever more laws against reasonable self-protection and assumptions that others have good-will.
The ultimate truth is that inter arma enim silent leges. Disputes among sovereigns can only be resolved though legal means if they are of goodwill and accept the same terms of reference. Non-Anglo countries only rarely act with goodwill, since they are adversaries at heart instead of fellow citizens of the community of nations. See France’s pure pursuit of self-interest in atomic tests and attacks on New Zealand (though that was a good thing for the world). Our nihilistic law professors and activists pretend that were are not faced with pure struggles of power merely to further the interests of their confederates in Al-Quaeda and all other factions that aim to destroy us. This should be viewed as providing material support to terrorism and make one eligible for a visit from the best of General Atomics’ and Raytheon’s products.
As to CIA preds – they have their own drones and operators. Clinton-era JAG traitors still pervade the military, so CIA “doesn’t” have it own airforce to do what needs to be done. Unfortunately too many liberals in the CIA won’t do what needs to be done.
The proper response to any indictment by the ICC is deployment of our forces that are already in Belgium. NATO clients need to be dealt with harshly when they are adversaries and not allies – France should have had its membership in NATO removed and all ties cut long ago.
January 10, 2010, 2:13 pmorca says:
What?
Germany and Italy both declared war on America on Dec 11, 1941. We returned the favor later that day.
January 10, 2010, 2:20 pmKenneth Anderson says:
JR: As I understand it, the military UAVs are flown from Nevada, but the CIA also flies its own from Langley.
January 10, 2010, 3:31 pmKirk Lazarus says:
India doesn’t have Trident missiles, only the US and UK. So you seem to be proposing that either the US or UK would respond to a Chinese violation of Indian territory by initiating a nuclear exchange. That is so mad I can only assume your post was macho chest-thumping gone wrong.
January 10, 2010, 5:05 pmMark says:
If what you’re saying is that we should be really, really sure it’s necessary before launching a military attack, then sure, I agree. But in that case, how is a strike with a Predator different from, say, sending an armored column over the border? In both cases, it’s a military response to a perceived threat. Perhaps the threat is illusory, or perhaps a military response is overkill, but that’s orthogonal to whether we choose to meet it with a Predator or with tanks.
January 10, 2010, 9:52 pmJR says:
Cool. Wouldn’t surprise me a bit. Technologically, they could be ‘flown’ from the Vatican. To me, it seems clear that the debate on the use of Predators has a number of unique facets that are not present in past dilemmas. The use of USAF assets by civilian operators to conduct so-called self-defense operations against non-combatants might, possibly (call me crazy!), be considered to be an extrajudicial killing in some courts, although identifying the perpetrator might be impossible.
I think that it would be useful to establish some clear rules on the use of these things, and to take into consideration that if they are better for our air force, they will probably also be better for other country’s air forces, so we shouldn’t be too chalant about designing super-Predator-friendly ROE.
January 10, 2010, 10:31 pmMike G says:
“What?
Germany and Italy both declared war on America on Dec 11, 1941. We returned the favor later that day.”
So what’s your point, that if Mussolini had neglected to sign that document, we would have had no basis to land in Sicily?
Your comment demonstrates the futility of this discussion: the idea that we can’t go after tactical targets because some legal technicality hasn’t been met. If your country is so lawless that you’re putting up with a terrorist organization within your borders who’s attacking us, then why should you have any protections of international law against us doing whatever we have to do to put an end to what you’re conniving at?
January 11, 2010, 9:32 amKirk Parker says:
FatMan,
I understand your objection to “international law”, but really you’re going quite far out of your way to oppose it by claiming it doesn’t exist, or is a fantasy; there are too many instances where proponents can point to something and say, “See? There it is; it says ‘International Law’ right on the label!”
Instead, it’s simpler to just remember what that famous philosopher Robert Plant once said:
That clarifies everything, as far as I can see, and opens more fruitful avenues of attack against the AurthurKirlands of this world, who get great mileage out of conflating the two meanings.
January 11, 2010, 1:09 pmJordan Paust says:
you can find the “answers” to these important issues in http://ssrn.com/abstract=1520717
January 11, 2010, 2:49 pmMichael E. Maus says:
An individual who has been injured by someone may seek compensation in civil courts and may assist governments in prosecuting violations of criminal law. So may nations seek redress from alien individuals or governments in court, or by international police action, or even by unilateral force of arms if no other remedies are available. This is common law established by precedent. The U.S. took forceful action against the Barbary pirates without a formal declaration of war against any particular state, meeting resistance and refusal to discuss our requirements with effective force. Where law and order has not met the standards of U.S. governments, we have supplied it, by Jingo. Our long term willingness to do this has been approved by some other governments, and generally by business interests, but not universally. As is well illustrated by the Iraq invasion, false pretenses and perjured testimony caused us to misplace our honor and overstep our national interests. After 9/11, the U.S. might have declared war on Afghanistan for sponsoring terrorism, and have availed our government of the special legal environment that creates. We would have avoided the totally unsatisfying relationship we now have with Afghanistan if we had done so. We would quickly have achieved the “victory” that is so gratifying to right-wing American militarists and we would have been able to reconstitute an acceptable Afghani government on our terms. By declaring war on Afghanistan or Iraq and “winning”, we would still not be any closer to “victory” than we are now in George W. Bush’s global war on “tare” for the reasons that Anderson is addressing here . It is inimical to our image, of ourselves and in the eyes of others, to abandon our “exceptionalism” by systematically denying self-determination to other people. We very quickly outfitted our troops with jack boots and panzers for a blitzkrieg, but we won’t as quickly undo the impression we created. The remotely controlled attacks on “non-state actors” within the territory of sovereign states seriously jeopardizes their governments. It is all too obvious to everybody why the Pakistanis are not controlling the UAVs, and that says volumes about us. The age-old tradition is that murder is wrong and assassination is a threat to civilization. My preference is to draft Republican militarists and put their boots on the ground or find peaceful ways for foreigners to arrest and convict “their” criminals no matter how hard that proves to be. War is hell. Even on Republicans.
January 11, 2010, 2:54 pmChris Travers says:
That’s a major concern.
No question that our actions do in fact impact terrorist recruiting. While it would be a mistake to assume we are primarily responsible for these problems, it would also be a mistake not to seek to minimize the problem.
However, the much more important point is that this is a choice about WHEN and not WHETHER to use UAV-based air strikes.
I don’t entirely disagree with the first paragraph. However, I have some questions about the second one, in particular the questions of where the UAV strikes occur in Pakistan and Yemen.
In particular, my understanding has been that most of these strikes (perhaps all of them) occur in areas which are outside the strong control of the state. In short, these are areas where the government is not able to exert proper law enforcement functions. Both Yemen and Pakistan have substantial areas that qualify as such.
If a predator act were to occur against a target inside Islamabad, I would decry such an act as an act of war against Pakistan. I don’t think this is what we want to do. On the other hand if it occurs in areas which are part of Pakistan proper but not subject to real control by the government, then we have to ask ourselves what the alternatives are. Certainly we can’t expect the Pakistanis to send in a few police officers and pick up the person.
January 11, 2010, 8:12 pmjenny says:
Fascinating reading. Well written and researched. I can’t wait for more.
January 22, 2010, 10:22 pmThe Volokh Conspiracy » Blog Archive » Assassination, Self-Defense, and the Koh Speech says:
[...] of self-defense; it is discussed at length in this article, and for that matter I have raised it on Volokh and Opinio Juris (and the very serious international law scholar Marko Milanovic has gravely [...]
March 28, 2010, 5:30 pm