Photo Credit: Doran
Part One available here
Guest Post by: Arthad Kurlekar & Arindrajit Basu
In the previous post, we discussed the legal implications of the recently declassified Presidential Policy Guidelines (PPG) in terms of its conformity with the distinction principle in International Humanitarian Law (IHL). It has been argued that the rise of transnational terrorism itself has altered the contours of the Laws of Armed Conflict and thus the legal regime governing counter-measures. Nevertheless we firmly believe that the survival of a global legal order must be predicated on the guarantee of certain principles that cannot be shirked regardless of the circumstances. The principle of sovereign equality of all states, as enshrined in the United Nations Charter is one such non-derogable principle. The PPG violates the principle of sovereign equality by imposing an obligation on other states, higher than that recognised under international law and also that it violates the principle of self-defense under Article 51 of the UN Charter.
The justification of lethal action against High Value Targets (HVTs) who pose an imminent threat to the US also must be questioned for its violation of sovereignty. Sovereign equality mandates that states be internally bound by their domestic legal order and conform to the tenets of international law, not the laws or views of another state. Proponents of targeting argue that a state is required to curb acts of terrorism within their borders, failing which outside states, like the United States, have the power to conduct targeting in self-defense. Such an argument imposes an inequitable obligation to prevent terrorism. Under international law, this obligation extends as far as the taking all ‘practicable measures’ towards the elimination of the threat. The International Court of Justice (ICJ) has confirmed this in the Bosnia Genocide Case, enunciating that the obligation is one of conduct and not of result. Professor Kimberley Trapp has argued for the evaluation of this due diligence standard on a two-pronged test, that of knowledge and capacity. So long as a state is aware of the terrorist operation and is taking reasonable steps given its resources and institutional capacity, it has not breached its obligation.
The PPG echoes an alternate standard stated in Sections 3B and 4B that lethal action may be taken only under circumstances where the relevant governmental authorities in the host territory “cannot or will not effectively address the threat to U.S. persons.” This threshold imposes an obligation of result on the host country and demands that they successfully curb the threat to US persons rather than adhere to the obligation of conduct stipulated by international law. Further, the sections requires that the fulfillment of this obligation is judged by authorities within the United States rather than international bodies such as the UN Security Council (UNSC).
In the absence of UNSC approval, a violation of territorial sovereignty may be justified only under self-defense or collective self-defense. The use of self-defense in this instance needs nuanced discussion at two levels. First, there is conflicting opinion on whether the right enshrined in Article 51 applies to non-state actors. A teleological interpretation of the provision would imply that such a right is in fact available, as it uses the phrase ‘any armed attack’ without specifying that such armed attack must emanate from a state. However, the ICJ in the Palestine Wall Advisory Opinion delegitimized this position and stressed on the requirement of attribution of an armed attack to a state for the right of self-defense to be applicable. This position has been vociferously disputed by several publicists on the grounds that such a legal position is untenable in today’s day and age when a significant proportion of armed attacks are carried out by transnational actors that cannot be considered agents or organs of any state. Crucially, Judge Koojimans in his separate opinion in the Armed Activities case, supported a right to self-defense even in the absence of state attribution.
The interpretation of Article 51 in this instance, however runs into roadblocks when justifying preemptive strikes on individuals residing in foreign territories. A strict interpretation of Article 51 of the UN Charter, which allows for an invocation of the right only when an armed attack has occurred, would indicate that the right does not exist at all. However, various publicists have argued that to wait for a first strike when there is overwhelming evidence that an armed attack will occur would defeat the purpose of Article 51 and amounts to nothing short of insanity. There is also overwhelming consensus among states, as evidenced through state practice that such a right may exist so long as it is used with extreme caution. The oft-quoted customary Caroline Principle that has been used to justify preemptive self-defense requires imminence, necessity, and proportionality.
The PPG does not illustrate how the targeting policy is in line with international standards on self-defense. It is certainly questionable whether preemptive self-defense can be invoked as a justification for breaching the sovereignty of another country and targeting an alleged terrorist without ascertaining the nature and extent of his involvement in future attacks against the United States and the possibility of this attack actually occurring. By providing the United States carte blanche authority to violate the territorial sovereignty of other countries and unilaterally engage in lethal targeting endeavours, the PPG is implicitly condoning a violation of possibly the most sacrosanct principle of the United Nations Charter.
As global efforts against terrorism continue, it is imperative that the international community is aware of the clandestine efforts made unilaterally by nations such as the United States. Despite its apparent faults, the declassification of the PPG marks a positive step in this direction. However, the substantive revelations in the document amount to a theatrical ‘much ado about nothing.’ In order to truly conform to the spirit of the principles of international law however, the policy prescriptions must not stop at merely echoing its normative standards but provide a detailed analysis into the modus operandi of how these principles are to be implemented by the domestic decision-making authorities.
Arthad Kurlekar is a BCL Candidate at Wadham College, University of Oxford, 2016-17. He holds a Diploma in Commercial Arbitration and has been a research assistant to Prof Dr Remy Gerbay, Prof Dr Reinmar Wolff and Prof Dr Ingeborg Schwenzer. His research interests International Dispute Settlement, International Commercial Arbitration, International Investment Law, Outer Space Law and the Laws of Armed Conflict. He may be contacted at email@example.com. His Linkedin profile may be accessed here.
Arindrajit Basu is at The West Bengal National University of Juridical Sciences, India and a Research Assistant with the Centre for Long-Term Cybersecurity, University of California, Berkeley. His research interests include International Security, Laws of Armed Conflict, Military Ethics and the Laws of Privacy. He has previously written for Dissident Voice, The Wire and the Economic & Political Weekly. He may be contacted at firstname.lastname@example.org