The war on terror in its second decade. Continuity we have to believe in (IV)

In my last project, “Law, War and the State of the American Exception”, I looked at the Obama administration’s policies in four areas where its predecessor challenged or violated international law. One of these was the use of force, in particular the revised doctrine of preemptive self-defence.  Around March 2010 I wrote a series of posts called ‘Continuity we have to believe in’ and they formed the starting point of the argument I advance in my forthcoming book Law, War and the State of the American Exception. 

Jack Goldsmith’s latest post over at Lawfare offers further evidence of the continuity between the Bush and Obama administration.  The issue is how we define “imminence” and Goldsmith points out that Obama’s national security team are not that far from Bush’s 2002 National Security Strategy.  It’s particularly interesting to note how the current Assistant to the President on counter-terrorism issues, John Brennan, says that a new definition is increasingly recognised by the international community, whereas the Bush NSS stated only that we must adapt the definition.  Who in “the international community” I wonder is Brennan talking about?  It is clear from the evidence produced by the Iraq Inquiry that British government lawyers  rejected completely the argument that there was a case for the use of force in preemptive self defence against Iraq. 

It’s also important to note that Brennan’s remarks were made in the context of “the ongoing war against al Qaeda”.  The question of imminence here relates not to attacks against states but against individuals, what is often called targeted killings (see Phillip Alston’s latest article on this topic).  And here there is a crucial continuity that Goldmsith’s post does not highlight.  It involves the question of the geographic scope of the war on terror. 

An area in which there is some disagreement is the geographic scope of the conflict.  The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan.  Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time. 

In other words, al Qaeda members even outside Af/Pak are still enemy combatants (rather than terrorist suspects) and they can be targeted with lethal force without evidence that they are about to commit a terrorist atrocity (which the law enforcement paradigm would insist on for the use of lethal force to be lawful).  Brennan does say that there are legal restraints on the American use of force in these circumstances but they are the laws of war not international human rights law or US Constitutional law.  This is further evidence that America’s war on terror has entered its second decade. 

Contrast this approach to counter-terrorism with the statements of former MI5 chief Eliza Mannigham-Buller and MI5’s current activities, which involve the arrest of terrorist suspects in Birmingham.  By Brennan’s standards we might very well have seen Predator drones over the streets of the UK’s second city.  That might sound ridiculous.  But what makes it sound ridiculous is a political not a legal context.

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About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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6 Responses to The war on terror in its second decade. Continuity we have to believe in (IV)

  1. Yevgeny Primakov says:

    I am not sure why you claim that the US is targeting Al Qaeda without evidence of intention to commit terrorist atrocities when it would seem obvious that the commission of terrorist atrocities against the United States and its allies is the sole purpose of Al Qaeda. Membership of the group constitutes evidence of intent to use force against the USA and in purely natural law terms the USA has a right to act in order to defend itself. I am sure even Al Qaeda operatives understand these rules perfectly well.

    • Jason Ralph says:

      Obviously al Qaeda has made its purpose clear but the question raised by the issue of targeted killing is how far advanced the terrorist has to be in his plans before he forfeits his right to arrest, which is a corollary of the right to life as set out in Article 6 of the ICCPR. This is the importance of the imminence and necessity criteria and I should have been more accurate with my language in the initial post. The US would be justified in shooting to kill a terrorist suspect, even in the liberal law enforcement model, if it was the only means of preventing an imminent terrorist attack, i.e. an attack that left no moment for deliberation. The ECHR, for instance, found that British soldiers acted reasonably when they shot IRA terrorists on Gibraltar. It also noted, however, that the British state was still in breach of its human rights obligation to arrest terrorist suspects.

      “The Court accepted that the soldiers believed that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life. The actions which they took … were thus perceived as absolutely necessary in order to safeguard innocent lives. … [However] it questioned why the three suspects had not been arrested at the border immediately on their arrival in Gibraltar and why the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists’ intentions, it would certainly have been possible for the authorities to have mounted an arrest operation. … This failure by the authorities suggested a lack of appropriate care in the control and organisation of the arrest operation. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court was not persuaded that the killing of the three terrorists constituted a use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2-2-a ECHR. There thus had been a breach of Article 2 ECHR. ” McCann and Others v UK at http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/c959f053662c3ec4c1256640004c2d90?OpenDocument

      Now this is relevant because the Bush administration circumvented these human rights standards by arguing that they were not relevant to its operations against al Qaeda because the US was in a global war with al Qaeda. This meant the imminence and necessity standards, as well as the emphasis on arresting terrorists in the law enforcement model, were relaxed. Combatants in war can be targeted because of their affiliation to the enemy state/organisation regardless of whether they are directly engaged in hostilities or in the process of committing a terrorist atrocity. The decision to label terrorist suspects enemy combatants is thus legally significant.

      While the Obama administration has continued to insist the US is at war with al Qaeda there has been indication that it is willing to limit the geographical scope of the battlefield, as well as what it means either to be affiliated to, or to support, al Qaeda. Even here, however, and Brennan’s recent statement seems to confirm this, the Obama administration still seemed to hold an expansive view of the right to use preemptive force in self-defence outside of situations of armed conflict; and this was because it was willing to stretch – like the Bush administration before it – the definition of the phrase ‘imminent attack’. Neta Crawford has a nice take on this issue when she says the US position under Bush replaced imminent threat (i.e. immediate threat) with immanent threat (i.e. potential threat) to justify the use of force in self defence. This has the same effect as saying the US can target suspects because of their affiliation to, or their support of, al Qaeda. They might not be about to commit an immediate terrorist attack, but their potential to do so makes them a legitimate target. The US does not, in other words, necessarily need the war paradigm to justify targeted killings of al Qaeda members if it makes the expansive view of the right to self-defence stick with the international community.

  2. Evgeny says:

    I notice that the Court judgement is about the rights made by the European convention. The convention has force because it is a community, and this is the reason why we would not want a shoot to kill tactic in Birmingham, or Gibraltar, except when a terrorist act was about to happen. We want to keep the civilized relations, the quality of our legal relations, wherever we can. We can accept a more thin idea of acceptable killing in relations between the USA and individuals planning atrocities against Western targets in Pakistan, as we do not inhabit the same space as these people. We are more willing to tolerate a shoot to kill policy because it does not affect the quality of our national values. You may complain that this is wrong, but it is a reasonable belief and to be expected. I don’t want police killing suspects with guns down my road and not arresting them but I don’t mind if this happens in Pakistan. It is hard for our people to arrest terrorists in far places, and anyway, the terrorists have no political relations with us and I am sure they understand that if they try and kill us then the bad guys from our side will try and get them. Those are the rules.

  3. Jason Ralph says:

    Thanks again for the comment. Yes the judgment I chose was European, but the same principles apply in the ICCPR, which is universal scope. Human rights groups and liberal lawyers (in particular Mary Ellen O’Connell) argue that targeted killings violate the right to arrest that is a corollary to the right to life contained in the ICCPR. Of course, this opinion takes it as given that the world is indeed a community and that states have obligations to individuals even if they are not citizens of their state or regional association. This cosmopolitan perspective is in contrast with the realist view you express here, which – like the US position in instances to do with the war on terror – draws lines between insiders and outsiders based on nationality and treats outsiders by different standards. Your last line about terrorists understanding “that if they try and kill us then the bad guys from our side will try and get them. Those are the rules” misses the point of the human rights perspective. It operates on the law enforcement principle of innocent till proven guilty. It does not necessarily rule out killing the guilty but only after judicial due process involving a fair trial. Identifying individuals as targets for killing without that is an extrajudicial killing, unless of course you identify them as enemy combatants in an ongoing armed conflict. Then we’re back to the question that has been debated in the Obama administration, which is how far the geographical scope of ‘the battlefield’ extends. Even then, of course, principles of proportionality apply.

  4. Pingback: The war on terror enters its second decade (ii). War, hierarchy and continuity. | The American Exception

  5. Evgeny says:

    America does not have the same obligations for judicial procedure in the case of its own citizens and non citizens engaged in a self declared conflict against it. That is a fact. We cannot rely on the International Court to guarantee our freedoms so the convention of human rights is a framework that allows states freedom of action in it. Where there is proof of harmful intent, where there is a declared war, jihad, where there is evidence and where it is not possible to make arrests then targeted assassination is not a crime unless you argue that killing is just wrong. But pacifism, not a disrespectful view, cannot see that there are times when targeted killing is necessary and permissible – in the case when someone is ‘about to commit a terrorist atrocity.’ With Al Qaeda this is the from the time they sign up and where arrest is not possible. I repeat: the bad guys know this and would be confused at human rights groups and liberal lawyers trying to help them.

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