laws of war

Climate Wars and Jus ad Bellum (Parts I & II)

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(Published in Opinio Juris in two parts, Aug. 13, 2020).

Part I

In this year of cascading crises, the climate change crisis is slipping off the radar. Not only that, but the Coronavirus pandemic and the resulting economic crisis are likely to interfere with both our will and our ability to respond to the climate change crisis. And yet, as many others have noted, there are many similarities between the pandemic and the climate change crisis, and there are lessons to be drawn from the pandemic in how we think about responding to climate change.

In this two-part essay I want to focus on how these crises implicate overlooked national security issues. More specifically, I examine how the climate change crisis will increasingly come to be seen in national security terms, and why we need to start thinking about how it will affect international collective security systems. As I have explored in a recent article (Atmospheric Intervention? The Climate Change Crisis and the Jus ad Bellum Regime), the climate change crisis will begin to exert pressure for changes to the jus ad bellum regime, and now is the time for us to begin considering and discussing how best to respond to that pressure.

In Part I of this essay I examine how excessive state contributions to climate change will come to be viewed as threats to international peace and security justifying collective action, and I examine in Part II how the jus ad bellum will be implicated, and why we need to begin now addressing the problems this will create.

Reframing Security

This is not merely about the crisis becoming securitized, but also about it causing a reframing of security. The Coronavirus crisis already has many people questioning the scope and focus of our national security efforts and expenditure, and re-framing national security in terms of human security. The threat of a flu-like pandemic was not only foreseeable, but was explicitly predicted not long after the SARS epidemic in 2003, and yet largely because the U.S. ignored the threat and was woefully unprepared, the pandemic has already killed over 160,000 people, and is projected to kill another 150,000 before the end of the year. Tens of thousands of those deaths were caused by inadequate preparation and response.

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The Use of Force and Int’l Law: The Void in American Discourse

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(Initially published in the Progressive Fix)

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.

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

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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.

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Bagram Prison, the U.S.-Afghani Detainee Agreements, and Int’l Law

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The New York Times carried a detailed piece on the U.S. detention policy in Afghanistan on Monday, January 7, 2007. It is an excellent overview on the prison, but the information provided in the piece gives rise to a number of international law issues that are not explicitly discussed or acknowledged in the article itself. I first review the salient facts, and then turn to the issues.

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.”

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