The Evolving Law of Global Killing

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A review of Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens David Ohlin (Cambridge University Press, 2016).

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This book amounts to a wide-ranging and important examination of the law governing the use of force in counterterrorism. Contributors are among the most prominent and indeed the most exciting commentators in the field. These include Adil Haque, David Luban, Marko Milanovic, Jonathan Horowitz, Naz Modirzadeh, Kevin Heller, Janina Dill, John Dehn, and Brian Orend.

In his introduction, Ohlin frames the volume around a well-known episode from Harold Koh’s tenure at the Office of Legal Counsel. While traditionally the United States had not recognized obligations under human rights treaties beyond its territory, Koh tried to change this position. This would mean that human rights treaties sometimes apply to the use of force beyond the US’s borders.

Koh’s effort realized only partial success. Obama adopted an exterritorial application of the Convention Against Torture (CAT), but did not adopt such an interpretation of the International Covenant on Civil and Political Rights (ICCPR). As documented in the book, this effort also mainstreamed the idea that human rights treaties apply alongside the laws of war during counterterrorism operations (even beyond CAT). The book takes up the consequent dilemma—what is the relationship between human rights law (HRL) and the laws of war in counterterrorism operations?

Somewhat surprisingly, Ohlin’s edited volume convinced me that it doesn’t matter so much whether human rights treaties apply alongside the laws of war or not. Once IHL is considered a controlling body of law, there will be vast room for targeting and detention authorities that resemble those of war, with or without human rights treaties. For those of us concerned that some of the lethal action the U.S. engages in is unlawful, immoral, or counterproductive, a much more important question is when IHL kicks in at all. The latter question has vast influence on what might now be called the law of global killing. But it is not a human rights question, at least inasmuch as by that we mean that human rights treaties such as ICCPR or CAT govern it. The book also addresses other issues, notably detention. However, this review will focus only on questions related to killing.

Two Separate Regimes?

The laws of war are divided into two branches. IHL, also called the Law of Armed Conflict or jus in bello, controls the behavior of belligerent parties during war. But IHL’s questions are preceded by another dilemma, which is about the initial justification of the use of force, or jus ad bellum. Under international law, states are only allowed to use force abroad under Article 51 of the U.N. Security Council (for self-defense), or as authorized by the U.N. Security Council. The book’s framing around the exterritorial application of human rights treaties implies a focus on the relationship between human rights treaties and IHL. But jus ad bellum and the initiation of force return in the book all the same.

At first blush, the basic premises of HRL and IHL seem very far apart. The potential influence of human rights treaties on IHL in the context of counterterrorism operations would thus seem momentous.

HRL protects the right to life, which is enshrined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR): “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The only circumstances in which killing is uncontroversially authorized by HRL are those of self-defense from an immediate danger.

IHL, on the other hand, legalizes the killing of both enemy combatants and innocent civilians. As long as the latter are not intentionally targeted, and only die as “collateral damage,” their deaths will normally be deemed legal. This supposedly inadvertent killing of civilians must be “proportionate” to the military advantage gained. This rule of proportionality is, however, notoriously indeterminate. Different reasonable actors often disagree upon when an attack becomes disproportionate. Apart for one’s personal judgment, little can adjudicate.

In his characteristically instructive contribution to the volume, David Luban restates these differences in terms of their underlying ethical assumptions. HRL is premised on the dignity of individuals and their autonomy. IHL, on the other hand, is premised on a kind of reversed utilitarianism. Rather than maximizing pleasure, the point of IHL is to minimize suffering.

Ohlin, in his own chapter, provides an excellent account of the different underlying premises of the two regimes in political (rather than ethical) terms. He develops a distinction between “acting as a sovereign” and “acting as a belligerent.” While the former lies at the foundation of HRL, the latter is at the basis of IHL.

For Ohlin, HRL should apply during conflicts when governments act as sovereigns—for example, when they run a prison and thus gain control of the detainees’ lives. This is a rather modest application of HRL in war (which at least partially overlaps with the application of Constitutional rights). Explaining this, Ohlin makes an important point: “There is so much talk of using human rights law to ‘fill the gap’ in many cases, though the correct legal conclusion is that there is already a powerful body of law to generate legal scrutiny, i.e., jus ad bellum.”

I would like to come back to this move away from HRL and back to jus ad bellum; but first, l want to take a brief look at this notion of “filling the gap” with the law of human rights treaties.

Should Human Rights Treaties Be Applied to Counterterrorism Operations?

Reading the book, I was convinced that once one concedes that IHL applies, the question if human rights treaties are controlling alongside IHL is secondary.

First, going back to the language of the ICCPR, one might argue that when a military force targets an individual combatant, the loss of life is never “arbitrary.” This may be true even if a “proportional” number of civilians are killed. Civilian deaths are not necessarily “arbitrary” when they are the byproduct of attacking a military target that it is necessary to destroy in order to defend a state. Several of the authors acknowledge this point in different ways.

As Milanovic explains, the idea that IHL governs war exclusively is often presented as a logical entailment of the doctrine of lex specialis. This doctrine, according to which “special” law trumps “general” law—and therefore IHL trumps HRL—has become a kind of mantra among some government lawyers. Milanovic argues that we should be suspicious: lex specialis makes its first modern appearance only in the mid-1990s, with the International Court of Justice’s Nuclear Weapons case.

However remarkable, this historical insight does not demonstrate that the application of human rights treaties has dramatic consequences during lethal engagements. Indeed, Milanovic goes a considerable way to demonstrating that that is precisely not the case. Instead of referring to lex specialis, Milanovic says, governments should generally derogate human rights obligations when they are conducting military operations. This possibility of derogation mitigates considerably any conflict between the concomitant regimes of IHL and HRL. Admittedly, Article 6 of the ICCPR, protecting the right to life, is non-derogable.

In an interesting passage, Milanovic refers to the “few situations” in which there is a conflict, which arise in the contexts of killing and detention. Here, he says, the principle of lex specialis does have a bite. IHL will displace HRL, but only “to the extent strictly required to resolve the conflict. Thus, a killing that would in principle violate IHRL … but was compliant with the rules of IHL … would now also become compliant with IHRL by virtue of lex specialis.” The concrete example Milanovic refers to is the obligation to attempt capture before killing, to the extent this is possible.

The argument is intricate and compelling, and maybe the application of HRL will in some cases make a difference in military behavior. More likely, the question what the “extent strictly required to resolve the conflict” will be just as indeterminate as the proportionality judgment. Indeed, the requirement to mitigate killing to the scope that is required by military necessity is a different way of stating the proportionality requirement. The latter is internal to IHL, and does not require an appeal to ICCPR or any other human rights treaty.

Taking a different perspective, Janina Dill suggests that, by allowing the killing of combatants and civilians, war is per se a violation of human rights. Making a rather ambitious and somewhat complex case for a different form of lethal engagement that would respect individual rights, she seeks to alleviate this fundamental concern. Assuming, as she concedes, that her framework cannot be adopted at this stage, her point left me perplexed about the more general project the book sets out to examine. Does the application of human rights treaties to massive and systematic human rights violations make sense at all?

One might object, of course, that human rights surely permeate efforts to promote accountability for war crimes, such as those advanced by international criminal tribunals. Luban notes a dictum by the International Criminal Tribunal for the former Yugoslavia, according to which HRL and IHL have a common “essence.” Inspired by these words, he argues that efforts to hold war criminals accountable have reshaped the law applying to military operations more generally. The result, he says, is an orientation towards IHL in which the goal is no longer only to reduce the suffering of civilians. Infused by HRL, interpretations of IHL tend towards respect of individual dignity and an individual civilian's point of view.

Important as such an other-regarding perspective is, it is not necessarily tied up with the application of treaties such as the ICCPR or CAT. The more important body of human rights law for an international criminal court is that of jus cogens. These are human rights rules that, unlike treaties, are considered binding regardless of state consent. They include the prohibition on torture, genocide, apartheid, and non-defensive warfare. But jus cogens rules are not only embedded in treaties. They appear also in customary international law and in traditional instruments of IHL such as Common Article 3 of the Geneva Conventions. Applying the ICCPR to lethal operations alongside IHL would still not necessarily make a difference in terms of accountability for jus cogens violations—the common “essence” of IHL and HRL.

The duty to investigate apparent violations of the right to life is an important measure of accountability. In the jurisprudence of the European Court of Human Rights, it is often grounded in the European Convention on Human Rights (ECHR), i.e., in a human rights treaty. But the work the ECHR does in this contexts, e.g. in a landmark case such as Al-Skeini, could also be done by appeal to the exterritorial reach of domestic criminal law (the principle of “active personality”).

A fascinating implicit objection to the conclusion that human rights treaties do not matter during counterterrorist operations is advanced in Kevin Jon Heller’s contribution to the volume. Heller argues against the analogy U.S. government lawyers have made between rules legally binding in international armed conflict (IAC) and the rules that might apply in the notoriously less formalized domain of non-international armed conflict (NIAC)—including the war against Al-Qaeda and its associated forces. This use of analogy to generate rules, he says, has no basis in international law. Furthermore, it has allowed the U.S. to ignore the fact that non-international armed conflicts (NIACs) are traditionally fought within a state’s territory, and are thus governed both by IHL and by HRL. Even transnational NIACs, when they first emerged in the histories of other nations, were normally governed by both regimes.

The U.S.’s version of “Transnational NIAC” is a novel form for fighting that amalgamated the relatively meager rules of IHL applying to NIACs (especially since the U.S. had not ratified the Additional Protocol of the Geneva Convention on the subject), and a peculiar U.S. view of HRL: with the exception of CAT, human rights treaties do not apply extraterritorially. The gaps that resulted were filled with IAC rules. But international law does not allow for such an analogy. Any such gaps should have been filled with HRL.

But the question of practical results ensuing from the application of human rights treaties during NIAC remains nagging. If Heller is trying to say that traditional NIACs, i.e., civil wars, are more respectful of rights than contemporary counterterrorism operations, I’m skeptical. Heller does make a significant effort to show that transnational NIACs existed before 9/11 and that the application of human rights treaties has been their norm. But the most prominent precedent of a non-American transnational NIAC, Israel’s 2006 attack on Lebanon aimed at Hezbollah, was not known for its exemplary human rights performance.

Both IHL and HRL (with the exclusion of their common jus cogens norms) are premised upon exercises of proportionality. IHL proportionality requires one to weigh civilian casualties against military gain. HRL proportionality counsels weighing the limitation of one right against the limitation of another. There are arguably important conceptual differences between the two kinds of proportionality. But the concern that continuously popped up in my mind while reading the book is that applying HRL in the context of lethal operations means that the two “proportionalities” are conflated.

Dill’s normative proposals go the furthest down this route by advocating a displacement of IHL by HRL. In a completely individualized world of warfare, in which no collective entities are recognized, only HRL proportionality exists. But I think in such a world HRL proportionality is also fundamentally changed. It allows governments to kill people when that is thought of as proportional (something that extant HRL does not allow, except in the narrowest of circumstances).

If HRL applies to lethal counterterrorism operations, we are likely to think that our own right to safety means that some other people should die. Such determinations have arguably been made when U.S. Department of Justice lawyers adopted a vastly expanded concept of jus ad bellum imminence. They are, precisely, “arbitrary.”

From Human Rights Treaties to Jus ad Bellum

Modirzadeh opens her outstanding article with a “heavy moment” back in the 2010 annual meeting of the American Society of International Law: Koh’s now well-known speech, “The Obama Administration and International Law.”

Among other things, Koh explained why drone attacks in the context of a transnational NIAC against al-Qaeda and its associated forces do not constitute assassinations. As Modirzadeh points out, six years after the speech, the questions about whether killings in counterterrorism operations are lawful remain more salient than the answers Koh provided. These questions, however, do not pertain to Koh’s cherished project—the exterritorial application of human rights treaties.

As Heller reminds us, the International Law Commission has noted that “it is not enough for targeting or detention to qualify as a legitimate act of self-defense under Article 51 of the UN Charter; the targeting or detention must also be consistent with either IHL or International Human Rights Law (IHRL), depending on which legal regime applies.” The language here is disjunctive rather than conjunctive. It reflects two regimes that are neatly separated.

Modirzadeh’s idea of “folk international law” (previously published elsewhere) is an account of how post 9/11 American lawyers have mixed these two categories up. The result is a watering-down of the two disciplines, or as her subtitle encapsulates it: “The Transformation of the Law of Armed Conflict to Human Rights Policy, and Human Rights Law to War Governance.”

Interestingly, Modirzadeh ascribes responsibility for this process not only to government lawyers. It is also a story of IHL lawyers aiming to remain relevant in an era when the Bush administration told them to “take a hike,” a story of people who were tempted to reach a kind of compromise that would allow their ideas some access to the corridors of power.

In Hamdan—which was largely celebrated as a victory for international law and human rights—the U.S. Supreme Court struck perhaps the most devastating blow to legal limitations on the government’s capacity to freely kill people abroad: it adopted the concept of transnational NIACs. But this “innovative” category “had been percolating for at least five years by this point.” It reached the Court’s jurisprudence through the sustained efforts of academic IHL lawyers, notably Derek Jinks.

Jonathan Horowitz, a lawyer at the Open Society Justice Initiative, also believes the lingering questions about unlawful killing abroad boil down to Obama’s dramatic adoption of transnational NIAC. His own essay amounts to a proposal to abolish this “global” category. While I believe such thinking is generally much more constructive than the focus on human rights treaties, I was not convinced by the details of his particular proposal.

One way or another, what stands out in both these chapters is that the now-accepted transnational NIAC is still a very new arrival. At the beginning of the Obama’s first term, it was far from clear whether transnational NIAC would be embraced, or, alternatively, if counterterrorism would be firmly grounded in a law enforcement framework. If one believes in the power of law to change behavior in these fields, the latter option would likely mean that fewer people would be killed from afar. To use Heller’s words, the U.S.’s form of NIAC “makes it exceptionally likely, if not actually certain, that the U.S. will routinely use exterritorial force unlawfully.”

But this book did not move me towards believing that the application of human rights treaties can effectively counter such a routine. Human rights treaties are important, perhaps, as a law of mutual checks among states in times of peace. Far more significant for the potential victims of counter-terrorism operations are international law’s protections of sovereignty, as reflected in jus ad bellum.

Filling the Gaps

As its title suggests, Theoretical Boundaries is, primarily, theoretical. It offers its readers valuable encounters with adroit, nimble, legal reasoning (exemplified by Milanovic and Heller) and lucid philosophical argumentation (Luban, Haque, Dill).

Perhaps by dint of its commitment to theory, it falls shorter on describing the real-life consequences of the relevant legal regimes. We are expected to theorize without really knowing anything about, for example, the experiences of people subject to rendition and detention post 9/11 or the experiences of veterans. Exceptions to this general assessment are Modirzadeh, whose work here can be read as a sociology of the discipline of IHL, or Horowitz, who comes to this work from an advocate’s perspective.

These exceptions noted, I think the volume could have given us more of an opportunity to consider the relationships between law and the day-to-day realities of counterterrorism. Dehn comes to this book with rich military experience, but his writing is on the doctrinal side. An author that would bring a socio-legal and/or an anthropological perspective from the field to the table could have contributed to the overall picture. A clinical professor could have also been a good choice for a piece that would be informed by and perhaps contribute to theory but feel more grounded in experience.

My own comments above are written with some pronounced uneasiness not only about the current legal framework applied to counterterrorism, but also about the realities of counterterrorism. This sentiment is reflected strongly by some of the contributions (Modirzadeh, Heller, Horowitz, Orend). But it is absolutely not part of the volume’s motivation. Ohlin’s primary commitment is rather to an ideal of legal clarity, which will supplant the “trite” notions of evolution and fragmentation in the field. The desired coherence is tentatively presumed to have some utility for well-intentioned actors in the field: “One animating impulse behind this entire academic endeavor,” Ohlin writes, “is the assumption that lack of clarity regarding fundamental principles is a major obstacle toward effectiveness on the ground. This work is therefore a necessary prolegomenon to the important work of humanitarian workers seeking to alleviate the suffering imposed by armed conflict.”

The call for coherence is at least as worn-out as the notion that the field is “fragmented” and in constant flux. Both are equally familiar tropes. And the former is a rather opaque aspiration—effectiveness for the military is different from effectiveness for the affected civilian population. In my own view, regardless of the editor’s intentions, the volume cumulatively demonstrates fragmentation far more effectively than it produces clean and coherent distinctions. But this is a strength rather than a weakness. It shows how open the field still is to novel ideas. And it may indeed encapsulate a useful message for humanitarians and others who seek to intervene in how counterterrorism is carried out.

The fact that international law in this field leaves so many questions open highlights our own responsibility as interpreters and potentially also as authors of the law. Far from being able to abandon its vocabulary, the unstable tapestry of international law presents a challenge: master the language, and articulate your fundamental commitments in a comprehensible form. If, as Orend writes, there is a “big bad gap” in the law of counterterrorism, I doubt that it can simply be filled by any extant body of positive law, HRL or otherwise.

Following a note from Luban’s essay, one might propose a more productive understanding of the way human rights can fill “gaps” in the law: When humanitarian and other actors are committed to guarantee the safety and well-being of people who would not otherwise have legal protections, their actions can meaningfully be described as filling those gaps with human rights. Part of this can be done by reference to treaties, but the imperative is far more open-ended than any call for an application of treaties would convey on its own.