President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.

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.

The prohibition on the use of force

Under the traditional understanding of jus ad bellum the strikes would appear to constitute a use of force in violation of Art. 2(4) of the U.N. Charter, which prohibits states from using force against the territorial integrity or political independence of a state, or in any other manner that is inconsistent with the purposes of the U.N.

Prof. Lederman questioned whether the strikes might fall outside of the scope of this prohibition, given that it was not really aimed at Somalia per se, but rather at terrorists operating within Somalia. It seems very unlikely that this distinction could negate the application of Art. 2(4). If Mexico fired missiles into Texas to take out some alleged narco-terrorists there, the U.S. would no doubt rightly perceive it to be a violation of its territorial integrity and an armed attack in violation of its sovereignty, inconsistent with the purposes of the U.N.

The right to self-defence

In interpreting Art. 2(4), one also needs to consider the operation of Art. 51 of the U.N. Charter, which provides that member states have an inherent right to exercise individual or collective self-defence in the event of an armed attack. Missile strikes aimed at targets within one’s territory would most certainly constitute such an armed attack and provide a state with the legal justification of responding with force in self-defence.

The missile strikes on Somalia would constitute such armed attacks justifying the right to the exercise of self-defence, and the fact that Somalia is in a state of political disarray, and able neither to effectively object or to mount any sort of self-defence, does not alter the legal analysis. That in turn informs the question of whether such armed attacks, which would justify self-defence, constitute an unlawful use of force in violation of Art. 2(4).

Continued exercise of self-defence?

Of course, attacks that are themselves conducted as part of the exercise of self-defence cannot constitute unlawful acts of aggression. Can it be said that the strikes on Somalia are part of a continued American exercise of the right of self-defence as against Al Qaeda in response to the 9/11 attacks? This brings one back to the issue of whether international law recognizes armed conflict at large against non-state terrorist organizations.

The U.S. invasion of Afghanistan was based on the Art. 51 right of self-defence, but was understood to be against the state of Afghanistan for its harbouring of the terrorists who conducted the attack. Notwithstanding the continued inusurgency in Afghanistan today, the initial invasion and occupation of Afghanistan ended years ago. Has there been some development of international law that permits states to employ military force rising to the level of armed attacks against third states on the basis that enemies from a former conflict have now taken refuge there?

The war on terror and jus ad bellum

The constant refrain that the U.S. is engaged in a so-called “war on terror” does not advance the analysis. An effort against terrorism in and of itself does not come within the definitions of international armed conflict in international law, nor do many aspects of that effort trigger the application of the laws of war. What is hte legal development that provides a legal justification for military strikes on countries in which the operative of an organization defined as “the enemny” may be residing at any given time?

A hypothetical may help us draw the distinction between the so-called criminal law paradigm and laws-of-war paradigm into stark relief. Consider a case where an alleged Al Qaeda operative is found to be residing in Canada. The U.S. requests of the Canadian government that he be apprehended. The Canadian government, however, approaching the issue from the criminal law paradigm, advises Washington that it has insufficient evidence to apprehend or detain him under the criminal laws of Canada (which now include a number of enhanced terrorism-targeting provisions). May the U.S., under the cloak of the war-paradigm of the so-called “war on terror”, and with assertions that Canada is now “harbouring terrorists”, fire cruise missiles into the apartment building where the Al Qaeda operative is holed up?

For those who argue that the “war on terror” is really an activity to which the laws of war apply, and that international law with respect to jus ad bellum has somehow changed since 9/11, the burden is on them to actually describe how, precisely, that is so.

This is not to say that the strikes were unlawful, but rather to emphasize that the questions raised by strikes such as those on Somalia certainly require much greater study and discussion. Their lawfulness ought not to be presumed. The foregoing review merely scratches the surface of the issues, and the questions should be getting more attention in both the mainstream media and in the academy.

The facts

It reviewed the history of Bagram Prison and the extent to which it was in many respects worse than the facility in Guantanamo Bay. There are over 600 detainees being held there, most of whom have not been charged with any offence or been subject to any legal proceeding. Some have been held without charge for more than five years. The average detention is over 14 months long. Moreover, while U.S. authorities claim that all detainees are to be processed and “registered” within fourteen days of admission, and thus accessible to the International Red Cross when it visits, they also conceded that there were exceptions. An IRC confidential report, according to administration sources, claims that it has been denied access to a “warren of isolation cells” in the Bagram facility.

But what is more striking from the article is the account of how the U.S. Defence Department officials applied pressure on the Karzai administration to establish a regime of indefinite detention of “enemy combatants” along the lines of the so-called legal framework of Guantanamo Bay. President Karzai refused to sign the decree drafted with U.S. assistance to authorize and establish the regime.

A 2005 agreement to transfer the bulk of detainees to Afghanistan was the basis for a more detailed plan of transfer, as outlined in an exchange of diplomatic notes. The notes reflect that the U.S. sought to have the Afghanistan government share any intelligence obtained from detainees, to “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from travelling outside Afghanistan.”

Finally, the legal basis for the U.S. detention of those being held at Bagram is reported to be unclear. Defence Department officials says that the detentions were authorized by “a note from the [U.S.] attorney general stating that he recognizes that they have legal authority under the law of war to hold enemy combatants as security threats if they choose to do so.”

The Issues

There are a host of legal issues raised by these facts, but I wish to focus more on the aspects of the regime that the U.S. sought to impose on Afghanistan. Here is a war effort that has been rationalized to no small degree by arguments of establishing a democracy in Afghanistan. While it was initially a war of collective self-defence justified by the 9-11 attack and the Taliban regime harbouring the terrorist aggressors, the continued presence and military activity has been justified by notions of freeing Afghanis from the tyranny of the Taliban and establishing a democratic state.

Yet the U.S. seeks to have the Afghani government develop a legal regime like that of Guantanamo, with indefinite detentions of “enemy combatants” without charge, or at best with prosecution by so-called military commissions. Most international lawyers in the world view the system in Guantanamo, of detention without charge, without access to courts of law or the right of habeus corpus, as being in violation of international law, and of the human rights norms that inform all liberal democracies.

More importantly, even those American lawyers who defend the Guantanamo system would not for a moment attempt to justify its application to U.S. citizens. The whole point of Guantanamo, was that it was to deprive non-citizens of the one connection to the U.S. Constitution they would have if held on U.S. soil, i.e. presence within the jurisdiction. Yet here the U.S. is seeking to have Afghanistan impose a similar system as against its own citizens. There is a plethora of law relevant to this issue, but one can begin with the International Covenant on Civil and Political Rights (the ICCPR), the most important human rights convention, to which the U.S. and Afghanistan are both party. The ICCPR, in Article 9, prohibits any arbitrary arrest or detention, requires prompt charges upon arrest, and the right to be brought promptly before a court of law, and to be subject to a trial within a reasonable time. It includes the right of judicial review to determine the lawfulness of one�s detention.

The next issue is that of denying those detainees who are released the mobility rights inherent in the possession of a passport and the ability to leave and return to one�s country at will. Article 12(2) of the ICCPR provides that “Everyone shall be free to leave any country, including his own.” It is a right that is qualified, in that it can be restricted as is necessary to protect national security, so long as such limitations are consistent with other rights in the covenant. But one can only assume that if the detainee is being released, it is because he has been found by the government of Afghanistan not to have committed any criminal offence or violation of the laws of war. Moreover, the U.S. request is not for the national security of Afghanistan, which is the only applicable limitation on the right, but for the security interests of the U.S. So, once again, the U.S. is seeking to have Afghanistan violate the human rights of its citizens, and violate its international law obligations under the ICCPR, for the narrow interests of the U.S.

In sum, the regime that the U.S. sought to impose by way of the agreement for detainee transfer to Afghani control was utterly inconsistent with the democratic values and international human rights that the “nation building” efforts in Afghanistan are rationalized as being designed to cultivate.