The Rules - Engaging HVTs & OBL

[jmm99]

I've cited Ashley Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden (May 5, 2011), in my post in this thread, Another ASIL "Insight" - validating the OBL DA. For the most part, I felt she was on the right track (though not as definite as she might have been).

So also, my reaction to her expanded presentation in "Unwilling or Unable": Toward an Normative Framework for Extra-Territorial Self-Defense (Ashley Deeks, Columbia Law School; Virginia Journal of International Law, Vol. 52, 2012):

Abstract:

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

Ms Deeks appends several dozen examples of state action taken sans consent in "unwilling or unable" situations. I've attached a .pdf snip of the list. Many of these situations will be familiar to folks here who have studied them from military or political standpoints. Her focus (as an exemplar) is on FARC, Colombia and Equador.

The devil is always in the details. One such detail is the question of which balancing test should be used to justify state action. While Ms Deeks does not like a simple "efforts" test, she also rejects a "certainty" test (p.30 pdf):

This balance has proven notoriously difficult to achieve since the Charter‘s enactment, but striking the wrong balance may have seriously destabilizing results. Consider an "unwilling or unable" test that systematically over-protects the victim state‘s equities. Such a test might require the victim state to undertake only a superficial inquiry about the territorial state‘s willingness or ability to suppress the threat itself, or might set high expectations for the territorial state‘s capacity to address the threat, such that it would be easy for the victim state to conclude that the territorial state was unable to do so and to choose to use force itself.[67]

67. While victim states generally would be happy with a test that over-protects their equities, those states must be conscious that any test they use may be used against them in the future. Thus, even though Turkey might instinctively prefer a test that over-protects victim states (because it envisions itself most often in the situation of a victim state), it must consider how Iran might seek to apply the test if it believed that Kurdish rebels in Turkey were planning an attack against Iran. Thus, those states that expect most often to be in the position of victim states should place themselves behind a Rawlsian veil of ignorance in determining the characteristics of the test that they are willing to accept. Likewise, those states that expect that non-state actors might try to use their territory as a safe haven nevertheless should envision what test they would desire if they found themselves in the position of a victim state.

On the other hand, consider a test that systematically over-protects the territorial state‘s equities – for instance, by only allowing the victim state to deem the territorial state "unwilling" when the victim state proves to a high level of certainty that the territorial state assisted the non-state actor that undertook the armed attack. Victim states simply will ignore a test that under-protects their equities when national security is at stake.

One wonders what Ms Deeks thinks of combat ROEs which are based on a "certainty" test.

In fact, she does not argue what the standard of proof should be; although, she does suggest a "clear and convincing evidence" test (note 73):

73. Several scholars have written about the level of certainty that states must establish before using force. See, e.g., Lobel, supra note 71, at 539 ("The changing nature of warfare in the latter half of the twentieth century highlights the international community‘s need to develop rules and mechanisms to address the factual assertions upon which a nation employs armed force."); Waxman, supra note 60, at 58. The proper standard of proof that a victim state should be able to meet before taking action in a territorial state is an important and difficult question, because the facts underlying an "unwilling or unable" determination often will be contested. It may be that a standard akin to "clear and convincing evidence" will strike the best balance between the equities of the victim and territorial states. It may also be that the standard should shift depending on the level of threat that the victim state reasonably believes that it faces. Although the issue is worthy of further consideration, this article does not address in detail the standard of proof that a victim state must meet. However, it makes a baseline assumption that the victim state must act in good faith. See infra text accompanying notes 135-136.

Her suggestion that the standard of proof could shift based on the degree of threat has some merit.

This is a timely article as the Administration is expected soon to trot out AG Holder to justify the al-Aulaki strikes. I expect Ms Deeks could make a better presentation of the US position.

Regards

Mike

The examples in the attached snip start with the US in Spanish Florida (1817-1818; Seminoles) and end with Turkey in Irak (2010; PKK).