Peter Margulies on Targeting and the Geography of War

John Brennan’s recent speech on targeting away from the battlefield has spawned controversy among distinguished commentators, including this exchange between Lawfare’s own Bobby Chesney and Gabor Rona of Human Rights First.  To explore the issues, the Naval War College (NWC) and Roger Williams University Law School convened a workshop on May 7 entitled the “Geography of War in Armed Conflict.” The workshop featured a rich spectrum of scholars and practitioners.  Scholars included NWC International Law Dep’t Chair Mike Schmitt, Harvard’s Gabriella Blum, South Texas’s Geoff Corn, Columbia fellow and former State Dep’t lawyer Ashley Deeks (heading to Virginia),  Georgia’s Diane Marie Amann, and Georgetown fellow Jennifer Daskal.  Representatives from government and NGOs also participated.  NWC’s Major Matthew Hover served with distinction as moderator; Lawfare’s own Ken Anderson couldn’t attend but blogged here with usual insight. The workshop addressed difficult issues with nuance and an absence of acrimony.  Some participants urged that the United States could target members of Al Qaeda across state borders when targets were planning, preparing for, or engaging in violence and host states were unwilling or unable to deal with the threat.  Others, while not categorically rejecting this position, warned that it could expand armed conflicts, detract from human rights, and increase collateral damage. Ashley Deeks’s measured analysis of the “unwilling or unable to control” threshold for incursion into the sovereign territory of another state was one important subject of discussion.  With historical echoes in the law of neutrality,  this principle holds that a state (the “victim state”) attacked by nonstate actors (NSAs) can target those NSAs within the territory of another state (the “territorial state”) if the territorial state is unwilling or unable to suppress the continuing threat those NSAs pose.  Drawing on foundational scholars such as Vattel and two centuries of state practice, Deeks argued that this principle provided a workable guide for the rights and duties of sovereigns.  Deeks responded to concerns that the principle was too pliable and could lead to unwarranted incursions on sovereignty, observing that her approach imposed duties on the victim state and was intended to reduce problematic exercises of force.  For example, in most circumstances the state would have to 1) prioritize the cooperation with or consent of the territorial state, 2) ask the territorial state to address the threat, permitting adequate time for this effort, 3) reasonably assess the effectiveness of the territorial state’s proposed actions, and (4) reasonably assess the territorial state’s control of territory and capacity to act.     Inevitably, Deeks’s approach led to both practical and theoretical questions.  On the practical side, some participants worried that Deeks’s interest in eliciting “due diligence” from the territorial state might consume valuable time and thus allow NSAs to engage in further violence or evade capture.  Others expressed concern that the “unwilling or unable” approach, as Deeks concedes, has not yet fully crystallized in international law regarding non-international armed conflicts (NIACs).  Those with this view suggested that calling the “unable or unwilling” formulation a “test,” as Deeks does, might suggest that jus ad bellum rules have evolved further than some commentators accept.. One participant addressed another topic relevant to the geography of armed conflict: distinguishing NSA acts that comprise ordinary criminal behavior from those that escalate to a NIAC.  Under the familiar factors of intensity and organization from the ICTY’s Tadic opinion,  violence must cross a certain threshold of frequency and severity to qualify as armed conflict, and the party initiating the violence must possess a level of organization that exceeds the informal or nonexistent governance characteristic of rioters or criminal gangs.  This participant asked whether the two factors could be viewed as a sliding scale, with a substantial level of violence requiring a lesser showing of organization, or vice versa.  Requiring a lesser showing or organization would help deal with Al Qaeda’s turn toward less hierarchical structures.  Many legal standards take this shape, such as decisions on preliminary injunctions that weigh irreparable harm, likelihood of success on the merits, and the parties’ hardships.  A similar approach could introduce useful flexibility to the Tadic factors, without giving states a license to overreach. Participants in the workshop also addressed the requirements of self-defense by the victim state.  Most either praised or declined to criticize some flexibility in that formulation.  The agreed starting point is the Caroline episode of the 1840s, in which Secretary of State Daniel Webster opined that Britain could use force against Canadian rebels operating out of U.S. territory only if the threat were imminent, with “no moment for deliberation.”  Some participants  noted that the imminence test has been substantially broadened in the last twenty-five years.  During this period, internationally recognized scholars like Columbia’s Oscar Schachter heralded adaptation to the challenge of NSAs, arguing that imminence had to be interpreted broadly to attach greater weight to the certainty of attack.  Increased flexibility permitted an adequate response to the challenge of terrorist plots unfolding over time, a la the 9/11 attacks.  One participant noted that this trade-off of imminence and certainty was also a feature of evolving domestic law.  For example, criminal cases have allowed self-defense claims by survivors of domestic violence even when the perpetrator of abuse was not threatening imminent violence at the precise time of the victim’s act. Harvard’s Gabriella Blum, who in her paper on differentiated duties in war and much other work has challenged law-of-war experts to think outside the box, argued for flexibility that might temper the risks of a victim state’s resort to force.  Blum suggested that even when victim states had a right to intervene, the law might require reparations to the territorial state, at least when that state was “unable” to take effective measures against NSAs and yet unwilling to consent to victim state intervention because of a commitment to its own sovereignty.  While Blum conceded that state practice today regards reparations as guided by policy, rather than dictated by law, she made a cogent argument that rethinking this issue could be beneficial. Participants queried whether Blum’s proposal could create perverse incentives:  corrupt officials from a territorial state might hold out, for example, withholding consent solely to receive additional benefits.  This could heighten the agency costs that corrupt officials impose on the people they govern: Officials could divert victim state aid for their own use, while the territorial state’s population bore the burden of collateral damage from the victim state’s incursions.  One participant, recalling Deeks’s paper, noted that states would often be better off assisting the territorial state in meeting its obligations, instead of intervening after a default.  For example, after the Bali bombings which killed scores of Australians, Australia furnished Indonesia with substantial resources for law enforcement.  Thanks in part to that help, Indonesia apprehended, tried, and punished all the terrorists implicated in the attacks. In short, the discussion at the workshop prompted useful dialogue, as well as hints of an emerging consensus that the “unable or unwilling” principle was relevant to the use of force against nonstate actors in a territorial state.  The precise contours of the principle and its interaction with countervailing factors were subjects of ongoing debate.  Some participants continued to express concern about sovereignty, collateral damage, and the accuracy of targeting.  However, the workshop clarified issues and cleared away rhetoric on both sides.  That’s a substantial achievement in the complex and dynamic domain of targeting away from conventional battlefields.