U.S. Missile Strikes in Somalia and the Laws of War

As was reported in the New York Times and elsewhere on May 2, the U.S. fired at least four Tomahawk cruise missiles into Somalia, striking a compound in the town of Dusa Marreb, killing at least ten people. One of them, the primary target of the attack, was an alleged Al Qaeda operative named Aden Hashi Ayro, who was suspected of having killed a BBC journalist among other things. He was reported to be a notorious terrorist.

Several blog posts have noted the lack of mainstream discussion on the legality of this missile strike. Prof. Marty Lederman, writing in Slate, suggested that few seem to care whether it was legal. But even among the bloggers, the majority of posts I have seen, as in the case of Prof. Lederman’s, have focused primarily on the constitutional issues of whether the President had sufficient authority, explicit or otherwise, to launch such attacks. There has been some discussion of the jus in bello issues, such as whether the strikes met the criteria of military necessity and proportionality, given the apparent collateral damage. But few have addressed the jus ad bellum issues – was this missile strike, and those prior to it (there have been several such attacks on Somalia since 2006) lawful under the international laws on the use of armed force?

Developments in jus ad bellum?

Prof. Jullian Ku was one of few that has raised the issue, on Opinio Juris, but he merely floated the idea that since such strikes have met with little objection, they may be evidence that the U.S. is operating in a legal paradigm that approximates that of war. Implicit in this is the proposition that there have been developments in international law on the use of force since 9/11 that permit one to wage war on organizations, and which give the global “war on terror” a legal foundation that would permit such strikes against Al Qaeda operatives at large in a “failed state”.

As I commented on his post over at Opinio Juris, I question whether the fact that there has been little formal objection to the strike can be said to support the inference that the strikes were therefore lawful or justifiable under international law, or that it reflects developments in international law that permit such strikes. … Read more…

Rule of Law Under Fire in Japan

(Initially published in the Japan Times, May 3, 2008)

The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state. … Read more…

New U.S. Legal Rationales for Torture – A Comparison with Israel

There is new fodder for the tortured torture debate in the U.S. New evidence is emerging that the government views secret ex ante determinations, presumably by the government itself, of whether harsh treatment of detainees may be justified by reason of necessity. It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.

An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards. … Read more…

Establish Limits on Japanese Naval Support

(Initially published in the Japan Times, January 10, 2008)

As the debate continues in Japan’s Diet this month over a new Antiterrorism Special Measures Law (ASM Law) authorizing Japanese naval force activities in the Indian Ocean, serious attention must be paid to the issues of exactly how such activity is to be limited, and how the Diet can meaningfully monitor compliance with such limitations.

These are not simply political or operational issues, but constitutional issues.

The current draft of the ASM Law purports to authorize the Maritime Self-Defense Force (MSDF) to supply fuel to coalition forces engaged in maritime interdiction operations related to Afghanistan. The law would restrict, among other things, the MSDF’s area of operations, its involvement in any use of force, and the purpose for which the fuel it provides may be used. These limitations have been explained as being necessary to ensure that Article 9 of the Constitution is not violated. … Read more…