Former UK Foreign and Commonwealth Office Legal Adviser Daniel Bethlehem has just published an important piece
in the latest issue of the American Journal of International Law. The article, entitled “Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors,” identifies a current gap between scholarship on jus ad bellum (JAB) issues and the operational needs and actions of states. His piece then seeks to fill that gap by articulating 16 principles relevant to the use of force against non-state actors. The principles span the waterfront of difficult JAB issues, including which non-state actors may be treated as conducting or contributing to armed attacks, when armed attacks may be regarded as “imminent,” and when a state may use force in another state’s territory in self-defense against a non-state actor.
As Bethlehem himself acknowledges, these principles are controversial, and are sure to evoke many and varied responses from states and scholars. (Almost all questions involving the JAB in the non-state actor context are disputed, and his list of principles shies away from none of them.) Indeed, the editors’ note introducing the piece says that AJIL expects to publish future critiques of and responses to Bethlehem’s proposal, which seems to signal that AJIL itself anticipates controversy.
On the substance, there is a lot to say (and I won’t try to say it all here). The principles usefully categorize and tease apart the many sub-issues surrounding the use of force against non-state actors. Some principles will be familiar to many readers – including the ideas that a state has a right of self-defense against an imminent or actual armed attack by a non-state actor, and that actions in self-defense must be limited by the principles of necessity and proportionality. Other principles are more novel. For instance, Bethlehem tries to sort through precisely what group of violent actors, in what configuration, may produce armed attacks. His principles also lay down in detail when the consent of a host state is required and what forms consent may take (“strategic or operational, generic or ad hoc, express or implied”). And a few of his principles are not fully clear. For example, principle 4 states that the term “armed attack” includes both discrete attacks and “a series of attacks that indicate a concerted pattern of continuing armed activity.” Does this mean that a series of violent acts, each of which alone would fall short of what the ICJ would consider an “armed attack” may, when consolidated, add up to an armed attack?
Putting aside the substance of the principles, the piece advances the ball in three ways. First, it consolidates - in black and white, in one place - core JAB principles that some states have been applying in the past decade. Both U.S. and UK officials have spoken publicly post-September 11 about various aspects of the JAB. The recent speeches by U.S. officials (which Ken has consolidated here
) lay out in some detail how the United States applies JAB rules to its uses of force against al Qaeda and associated forces. But no state has assembled in one publicly-available document its specific legal approaches to the issues of armed attack/imminence/consent/harboring, etc. The 16 principles thus serve as a kind of checklist of key JAB issues relevant to all states that are fighting non-state actors extra-territorially – even if different states take different views on the correct content of those principles.
Second, having assembled all of these facets of the JAB in one place, Bethlehem’s principles offer the possibility of shifting the conversation to a greater level of detail, which is where I think it needs to take place. To be sure, even the 16 principles contain some level of abstraction, as legal principles do when not being applied to a specific factual problem. But a piece like this allows those who are debating how to apply the JAB to non-state actors to hone in on specific concerns and fine-tune their arguments and positions accordingly. This obviously won’t eliminate disputes, but it might isolate and narrow them.
Third, although Bethlehem has published the piece in his personal capacity, he acknowledges that it reflects discussions over several years with foreign ministry, defense ministry, and military legal advisers from states that have operational experience with these issues. The United States obviously has the most significant operational experience in fighting non-state actors extraterritorially, but so also do various other NATO countries participating in ISAF. The implication is that the United States has not been operating in a vacuum on JAB issues for the past eleven years, but has been in conversations with allies, influencing but also being influenced by them. The piece notes:
While an important strand of the debate has taken place in academic journals and public forums, there has been another strand, largely away from the public gaze, within governments and between them, about what the appropriate principles are, and ought to be, in respect of such conduct. Insofar as these discussions have informed the practice of states and their appreciations of legality, they carry particular weight, being material both to the crystallization and development of customary international law and to the interpretation of treaties. Aspects of these otherwise largely intra- and intergovernmental discussions have periodically become visible publicly through official statements and speeches, evidence to governmental committees, reports of such committees, and similar documents. Other aspects have to be deduced from the practice of states—which, given the sensitivities, is sometimes opaque.
Bethlehem effectively peels back the curtain a bit on what these states have been talking about – and what rules may be guiding their actions on the ground – in the face of serious extraterritorial threats by non-state actors.
We’re not going to see states agree to revise the U.N. Charter’s use of force provisions any time soon – and that’s not necessarily a bad thing. At the same time, there is a lot of white noise about whether and how to adapt Charter principles to contemporary security challenges. Exercises such as Bethlehem’s could help shift JAB-related conversations among states to a more concrete (and possibly more fruitful) plane. Whether other states balk at or acquiesce in some of these principles will tell us a lot about where states perceive the JAB to stand today. And if, as seems to be the case
, the second Obama Administration intends to keep using force against al Qaeda and its affiliates in other states, then having a more robust public discussion – both internationally and domestically – about these principles seems inevitable.