Folk Law and Obama Administration Mythology: Four Stakes

Marty Lederman and I have been engaged in a debate over the past few weeks, and last Monday he wrote a lengthy and thoughtful “Monday Reflection” over at Just Security concerning some of my arguments here at Lawfare and in my article, Folk International Law. I would like to use this post, my last in this exchange, to raise four of the bigger stakes that I think arise out of our discussion. Before diving in, two preliminary points: First, I will leave it to readers of Folk to assess if Professor Lederman accurately and fairly captures my positions, and won’t spend time responding point-by-point here. Second, Lederman kindly suggests that we share many areas of agreement. Alas, I don’t think we do---again, though, I’ll leave it to readers to see if they agree.

Whether Clarity in the Legal Framework Exists---and Is Important

Lederman, who was instrumental in shaping the Obama administration’s legal framework for counterterrorism operations, seems invested in convincing us of two things that I see as contradictory: first, that the framework is exceptionally clear and that it has built-in limiting principles that will prevent the framework from doing things that liberals wouldn’t want (such as furthering a “Forever War” or permitting the killing of civilians outside of situations of armed conflict); and second, that clarity in the legal framework applicable to the use of lethal force is, actually, not that important, because policy is effectively doing more work than international law is in its approach to armed force. I wonder about both claims. As Karen DeYoung’s article in the Washington Post makes clear, those who are tasked with executing the war against ISIS and the Khorasan Group in Syria appear (perhaps exceptionally) unclear about the legal framework within which they are operating. Part of that lack of clarity seems to flow from the contention---developed by some amici in the Hamdan case and furthered reportedly by Lederman and other executive branch lawyers---that the United States is in a global non-international armed conflict with al-Qaeda and associated forces (Lederman seems to take umbrage at my use of the term “global,” so we can replace it with “boundary-less”). If the statements from officials cited by DeYoung are a guide, the mélange of U.S. approaches---an unclear mix of claims blending the jus ad bellum, IHL, extraterritorial law enforcement, and policy---leaves operators and the American public uncertain as to whether the U.S. is operating under a binding IHL framework associated with a particular classification of conflict (NIAC), or whether we are doing something else. That lack of clarity, which makes it harder to identify and enforce a limiting principle, matters: it matters for the people engaging in the use of force; for the people whom force is being used against; for the public in whose name the force is being deployed; and for the international legal system.

Whether the Approach of Obama Administration Lawyers Will Damage International Law in the Long Term

The lawyers, professors, and others, such as Lederman, who have been instrumental in shaping the Obama administration’s legal framework have a vested interest in defending the administration’s interpretations of international law and policy. I understand that. But I would urge us to consider the long-term implications for the legitimacy and coherence of how international law regulates war of both the legal arguments and the way they have been presented. The arguments for a seemingly boundary-less conception of non-international armed conflict against a terrorist organization or network (one that is quickly splintering and disaggregating), while crafted in response to pressing national security threats, have tremendous implications for international law in the future. In the hands of Syria, Russia, China, and other nations, such legal arguments---especially when seen as legitimized by the world’s superpower---may unleash a wave of other boundary-less NIACs. Surely it isn’t only the Obama administration lawyers who would like to argue that international law allows for the determination that traveling terrorist fighters can be targeted outside of situations of “hot” battlefields. These arguments also matter, not only for the immediate debate in the U.S. but also for the decades of state action to come. Poking holes in the divide between the jus ad bellum and the jus in bello, blurring law and policy, drawing from IHL targeting rules for situations that do not rise to the level of armed conflict: we should, at a minimum, pause to reflect on the implications of these legal and strategic arguments in the hands of decision-makers other than those in the current administration. Second, we should not forget that an enclave of executive branch lawyers actively sought to prevent Americans from seeing these legal rationales. I think classification and secrecy are vital to national security, and I stand behind secrecy of military operations, tactics, and much of the specific rules of engagement. But many of the lawyers crafting U.S. approaches have not engaged the public or its representatives on the methodology and substance of their international legal interpretations. We should keep that in mind as we evaluate the innovative doctrinal approaches now being presented as legitimate. If I am reading him right, Lederman thinks that my decision not to include footnotes in my blog post indicates that there is actually widespread agreement with the Obama administration’s arguments regarding global NIAC, including among states, human rights advocates, and international law scholars (both inside and outside of the U.S.). Lederman acknowledges that “perhaps there is some serious difference of opinion on such questions,” but he doesn’t seem to consider the issue worth pursuing further. I will leave it to human rights advocates, to JAGs, and to the many lawyers who have diligently tried to bring transparency to the administration’s legal approach to contend with Lederman’s assertion that they agree with his views. (For what it’s worth, the following authors would appear to dispute Prof. Lederman’s claim: From the ICRC (esp. pp. 7–8 and pp. 10–11); Prof. Dinstein (esp. p. 400); Prof. Gray (esp. pp. 98–106); Ms. Pejic (esp. pp. 7–9); Prof. (now Judge) Greenwood (esp. pp. 525–29); Prof. Garraway (blog); Prof. Milanovic (esp. pp. 375–81); Prof. Kreß (esp. pp. 264–67); Prof. Lubell (esp. pp. 428–41, 451–52); and Prof. Sivakumaran (esp. pp. 232–33).)

Whether More IHL is Always a Good Thing

Lederman argues that because the U.S. does not recognize the extraterritorial applicability of international human rights law and because the Obama administration wished to move away from the Bush administration’s framing of the GWOT, critics should celebrate the Obama administration’s approach because at least it provides IHL protections to targeting operations. I think this is an incredibly important move to unpack. On its face it is a powerful argument, with a lot of emotional and political appeal. It essentially says to critics: “You don’t want to go back to the bad old days when the Bush administration said no law applied, and we can’t give you human rights, so you should be happy that at least you have IHL.” This move represents, for me, the crux of “folk international law.” It casts IHL as a toolkit for targeting, as opposed to a coherent and closed normative framework. The application of IHL targeting rules (which constitute only a fraction of the full body of the jus in bello) assumes that a situation has crossed the threshold of armed conflict (either in an IAC or a NIAC). If one does not believe that a situation has crossed this threshold, if the factual criteria for NIAC have not been met in a specific instance, then the rules of IHL do not apply. The use of IHL-as-policy compliance draws attention away from the fact that the argument of being in an armed conflict with a terrorist network in the first place is often problematic. This argument---that even if targeting is problematic, well, at least the U.S. is applying IHL, with the specter of the Bush administration casting its long shadow in the background---urges us to consider the civilians. My view is that many of those who argued against the GWOT in the early days (circa 2002) understood that the determination of armed conflict mattered a great deal, and that it was prudent to urge the government to account for what it called a “war” and what it did not. There was an understanding that the use of IHL (as policy) would likely result in more killing and destruction, not less (at least that is my sense from discussions with military lawyers). I of course want civilians to be protected. But I do not buy into the argument that the best way to accomplish this is to apply IHL wherever one wishes, on the basis of armed conflict classifications made in secret. Calling for more concerted action and agreement from states, Prof. von Heinegg has said it (para. 34) better than I can (emphasis added):

By policy, not by law, some governments instruct their armed forces to apply the law of armed conflict in counterterrorism operations. (…) Only at first glance does this practice seem to be guided by prudence. Of course, armed forces are trained in the application of the law of armed conflict. Moreover, it is quite convincing to argue that in case of doubt compliance with the law of armed conflict puts the armed forces on the safe side, especially when it comes to the use of methods and means of warfare. However, the law of armed conflict will never be applied in its entirety and considerations of military necessity that may be justified in counterterrorism operations could all too easily have negative repercussions on the law of armed conflict when applied in situations of armed conflict proper. At the same time, most States whose armed forces are engaged in counterterrorism operations reject an application of the law of armed conflict and either rely on the right of self-defence or they additionally accept the application of human rights to such operations. This, however, does not contribute to legal clarity either. … It is, therefore, necessary for States to agree on international standards and criteria that specifically apply to counterterrorism operations. Such standards and criteria absent the armed forces entrusted with countering the terrorist threat will in most cases operate in a legal vacuum, at least in an intolerable legal grey area.

I am on the record as being critical of the extraterritorial application of human rights in armed conflict. But the problem with the global/boundary-less conception of NIAC has little, if anything, to do with the U.S.’s increasingly minority view on extraterritorial application. What has been lost amid much of the debate on the Obama administration’s approach is that the use of lethal force outside of recognized armed conflicts is problematic in part because it can violate human rights in and of the territorial state. Again, the stakes here are huge. Sovereigns don’t just have a privilege to consent to U.S. operations. They also have an obligation to their own publics under human rights law. It is easy to lose sight of this in the intra-U.S. debate over the application of human rights in armed conflict. But it is a potentially vital counterweight to arguments that if the U.S. doesn’t apply IHL, and because the U.S. doesn’t recognize the extraterritorial applicability of its own human rights obligations, then no law would apply.

Whether How We Are Talking About International Law and Armed Conflict Matters

Lederman may be at his most critical (and, perhaps, quickly approaching derisive) when he engages my arguments about what I see as having happened to the debate over the global/boundary-less conception of NIAC. He rejects the notion that critics of the Obama administration were drawn into a discussion of the details of IHL and were compelled to skip over the step of debating whether IHL was even an appropriate framework to use. Yet, even in his post, he uses many of the tactics that I believe were often successful in backing the human rights community against a wall and urging them to focus on targeting rules as opposed to critiquing the armed conflict framing overall. First, he doesn’t seem to be able to decide whether I am on his right or his left. At times, he paints me as being in favor of early Bush administration policies and at other times he seems to see me as a human rights-oriented critic of the Obama administration. That’s fine. But where I see the broader stakes for all of us is that by trying to box each other into a crude right/left ideology on these issues, we lose many of the debates, discussions, and inquiries into genuine dilemmas that we ought to be having. I think this style of argumentation has a silencing effect, because it dissuades many from raising questions and critiques that don’t fit neatly into supporting a particular politico-ideological position. Many of these issues are not black and white, and they are not plainly right or wrong. They are often exceptionally complicated, and they will affect our nation’s security, our standing in the world, and how other nations behave for the coming decades. We should treat them that way, instead of characterizing one another as being for or against any single position. Second, the argument that IHL is the best we can hope for has, unfortunately, picked up a lot of steam. I understand why. It purports to humanize a global war. It has given the impression that the Obama administration lawyers are far more committed to international law than their predecessors. That might be right; it might not. But the argument has also blunted the way in which we talk about law, about what rules bind, about how states will be held accountable, and about the degree of public engagement on when the nation goes to war. In terms of a strategy, I think it was a smart move. I believe that the Obama administration lawyers’ argument that IHL (if as policy) is the best we can do served to shield them from critiques that were made against the Bush administration, and that we are all impoverished as a result of the more narrow field of discourse. A coda: I would like to close with a story. I was honored to give the 2014 Red Cross Oration for the centenary of the Australian Red Cross in Adelaide a few weeks ago. I focused on IHL’s call for civilians to study the law of armed conflict and for civilians to engage with that law, its interpretation, and its enforcement. At the end of my presentation, a charming older gentleman approached me and shook my hand. He shared that he had been part of the Australian negotiating team for AP II. He noted that it seemed that many people today forget that in the 1970s, many international lawyers thought they were facing insurmountable challenges, and that they worried about the capacity of IHL to cope with the many conflicts around the world at that time. He noted that the Cold War was at its height when they were negotiating over the very tricky question of whether and how IHL should regulate non-international armed conflicts. He recalled that the U.S. and Russian delegates would often meet over vodka in the evening to hash out their disagreements, and that perhaps we would all be well served to remember that international law is made by states, over lengthy negotiations, based on deliberative consensus. The debate Lederman and I have been having is very much focused on the U.S. But the bigger stakes of these questions go far beyond our borders. They will reverberate in Ministries and palaces and barracks all over the world. And they will shape the future of how international law regulates armed conflict. I hope for more spirited and open dialogue such as the one we are having (and perhaps a vodka or two wouldn’t hurt). Naz K. Modirzadeh is the founding Director of the Harvard Law School Program on International Law and Armed Conflict, a new research program at HLS dedicated to exploring contemporary challenges concerning public international law and armed conflict. The views expressed here do not represent those of PILAC.