The Status of Responsibility to Protect in the International Law and Whether Doctrine Advances Use of Military Force for Humanitarian Ends

Although the use of military force for humanitarian ends seems utterly divorced from the use of such force to combat terrorism, both uses answer to similar descriptions. Both appear to encourage nations that are not necessarily themselves under attack to set aside the reigning conventions of national sovereignty and territorial integrity for the overriding purposes of international law enforcement and protection of vulnerable noncombatants. Both involve offensive rather than purely defensive uses of military force. Both answer to criteria of justification that can be derived more readily from the normative moral principles of the classical just war tradition than from purely descriptive revisions of the 'legalist paradigm' in international relations, because the latter is deeply wedded by precedent to notions of sovereignty, territorial integrity, and a purely defensive use of military force. Most significantly, the justification for both kinds of military action depends essentially upon a notion of 'the international community' that is inchoate and urgently in need of rigorous reformulation. In this paper, I attempt to formulate criteria for the justifiable use of military force for these non-defensive purposes, with attention to the nuances of internationalism that several of the resulting criteria entail. Challenges to the de facto role of the United Nations as the sole authoritative representative of this community, and alternatives to its authority in legitimating the use of military force for purposes of international law enforcement, are considered.

The right to rebel is a neglected topic in international law. The reasons for this lack of interest are to be found in the centrality of States as subjects of international law and their understandable reluctance to address non-State violence in terms of right. This approach is reflected in the tendency to look at opposition groups as illegitimate, frequently labeling them as terrorists. However, non-State armed groups are highly heterogeneous and their aims and motivations to use violence should matter at the international law level. This paper argues that the responsibility to protect (R2P) could provide the theoretical basis for the right to rebel against gross and systematic violations of human rights. The R2P doctrine maintains that each State bears the primary responsibility to protect the population within its borders; when it fails to do so, this responsibility is shared with the international community. In extreme circumstances, and where authorized by the United Nations Security Council (UNSC), foreign States may use force in order to stop gross and systematic violations of human rights. If international law accepts forcible interventions by States into the internal affairs of other States in order to guard against gross human rights violations, why should it negate the right of the victims of such violations to mount a resistance of its own? International law has increasingly addressed the use of force by States within their borders. International humanitarian law (IHL) regulating non-international armed conflicts (NIACs) is now a fully developed field of studies. On the other hand, State violence in peaceful times has been taken away from the domaine reservee: the respect of international human rights law (IHRL) does matter at the international level, as confirmed by the R2P doctrine. Both R2P and the increasing attention for the respect of human rights by governments are in line with a top-down approach that pervades nearly all fields of international law. States are the central subjects at the international level; what happens within their borders might affect their legitimacy in the eyes of their peers, inter alia, but in no way does it grant a right to rebel to non-state actors within those borders. This paper challenges this traditional top-down approach. Several scholars have demonstrated that non-State actors can become subjects of specific branches of international law, such as IHL and IHRL. Now may be the time to take a step further and recognize a more active role for non-State actors. Victims of heinous human rights violations should not be passive subjects, waiting for foreign States to react to violations of their human rights: granting them rights would be pointless without a related right to defend and protect them. International law would thus regulate both state and non-State violence, and the latter would be legitimate at least when directed to stop massive and systematic human rights violations. This article is organized as follows. First, it focuses on the attempts of international law to address the right to rebel. Generally speaking, international law does not prohibit, nor expressly allow rebellions. Nevertheless, the right to rebel has been at the center of an animated debate through the centuries; furthermore, it has been object of codification at the domestic, regional, and international level. This paper then examines the ways in which the R2P doctrine could operate as legal basis for the right to rebel against human rights violations. Finally, it investigates what could mean, in practice, to recognize a right to rebel, especially with regard to foreign interventions.

Reviewed by: Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy Ralph Hitchens Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy. By Zeev Maoz. Ann Arbor: University of Michigan Press, 2006. ISBN 0-472-11540-5. Maps. Tables. Figures. Glossary. Notes. References. Indexes. Pp. xii, 713. $45.00. Let's get the criticism out of the way. Israeli scholar Zeev Maoz has written a landmark book about Israel's "forever war" against the Arabs and Palestinians. But it's also a "forever book"—he could have done it in half the number of pages, with the excess profitably spun off into monographs and articles. Maoz's thesis is succinctly captured in a bumper sticker I saw recently: "War isn't working." The simplified story line of the Arab-Israeli conflict is that Israel was the heroic underdog from the 1948 War of Independence through the dramatic success of the 1967 Six Day War, after which things began to go south: the seemingly pointless War of Attrition, the nasty surprise of the Yom Kippur War, the invasion of Lebanon that dragged on for an incredible eighteen years, while festering in the background was the rising tide of unrest in the occupied territories. Maoz, however, takes us all the way back to demonstrate that while the War of Independence might have been a "just war," it was the only one to which Israelis can point. In subsequent decades, he argues, Israel consistently relied on military force as the principal instrument of foreign policy—fumbling, time and again, genuine diplomatic opportunities to resolve crises and build stable relationships with its neighbors. From the outset Israel's political leadership and the Israeli Defense Forces (IDF) settled on the "limited use of military force" as the best way to deal with their apparently intractable Arab neighbors. Reasonable, you might think, until Maoz explains that what they really meant was "unlimited use of limited military force"—an ongoing policy of military reprisals directed at the neighboring states from which cross-border terrorist activity was launched. This was intended to confront Arab governments [End Page 585] with unpalatable choices: if they were unwilling to restrain Palestinian guerrillas and other terrorists operating from their territory, IDF reprisals would escalate to unacceptable proportions and war would be the only option. This, of course, played into the hands of the IDF with its carefully nurtured "escalation dominance" posture while allowing Israel to avoid being identified as the aggressor. The Sinai war of 1956 (in collusion with Britain and France) was undeniably aggressive, but the notion that Israel is to blame for the 1967 and 1973 wars appears harder to swallow. Maoz methodically deconstructs through each case, summarizing the consensus scholarly viewpoints before presenting his own analysis of policy alternatives. Well-documented and sometimes deeply laced with counterfactual reasoning, these lead the reader to conclude that during the past five decades Israel's troubles have overwhelmingly been of its own making. Maoz supports his case in part by recourse to databases he has compiled, detailing every instance of conflict in Israel's history, no matter how insignificant: cross-border terrorist attacks and IDF reprisal raids, small and large. He's the very model of the modern political scientist, wielding just enough quantitative data to disabuse his readers of their preconceptions without overwhelming them. He also proves himself a competent narrative historian, refreshingly free of the academic jargon within which all too many in his discipline take refuge. (Furthermore, he's a former paratroop officer, no ivory-tower academic.) The architects of the "unlimited use of limited military force" strategy are the usual suspects, starting with David Ben-Gurion and continuing through a succession of defense ministers and IDF chiefs of staff. In recent decades, Maoz notes, an astonishingly high percentage of the latter came out of the paratroops or commando units, where they made their bones in cross-border reprisal operations. Interestingly, Ben-Gurion himself in his twilight years began to have second thoughts about the policy he set in motion. Maoz describes a famous incident immediately preceding the Six Day War, in which IDF Chief of Staff Yitzhak Rabin...

Nigel Biggar begins his chapter 6, subtitled “Legality, Morality, and Kosovo,” with these words: Law is given before it is made. Legal statutes and social contracts are not crafted in a moral wasteland. They are born accountable to a higher, natural law…. Such is the moral realism that the Christian doctrine of just war, both early and late, takes for granted. It assumes that there is a universal moral order that transcends national legal systems and applies to international relations even in the absence of positive international law…. One thing that this implies is that military action can sometimes be morally justified in the absence of, and even in spite of, statutory or customary international law. (2013, 309–10) These comments frame the core of Biggar's stance in what follows: a detailed, thorough dialectical analysis of the major lines of the legal, and sometimes political, debates over humanitarian intervention by military force since the 1990s. The principal focus is on the debates occasioned by NATO's intervention in Kosovo in 1999, but Biggar's reach extends both backward in time, to include some elements of the debates over military intervention for humanitarian reasons that had taken place earlier in the 1990s and forward, to provide a brief look into the development of the “responsibility to protect” (R2P) idea, from Kofi Annan's initial expression of the need for some such doctrine, through the original conception of R2P in the 2001 report of the ad hoc International Commission on Intervention and State Sovereignty (ICISS), to the narrowed redefinition of R2P in the Outcome Document of the 2005 World Summit.Biggar by no means provides the first example of a moralist's effort to engage critically with the legal debate over intervention—an engagement that has so far not produced any comparably serious effort by lawyers to reciprocate. When I first treated the subject of humanitarian intervention by military force in a chapter in Morality and Contemporary Warfare (Johnson 1999, 71–118), I began by examining three moral arguments on the matter: those of Paul Ramsey, Michael Walzer, and the United States Catholic bishops' 1993 statement, The Harvest of Justice is Sown in Peace. All three, though in different ways, engaged international law, accepting it as it then stood but offering arguments that went beyond the law. So did I in that chapter, and so have I in addressing the subject of intervention since (e.g., Johnson 2006, 2014). For whether positivistically inclined lawyers like it or not, the international law on the subject imposes moral claims and standards that no moralist addressing the subject can properly ignore. Thus Biggar, a moral theologian writing a book exploring the idea of just war as it applies to contemporary issues, could by no means ignore arguments on the same issues from the perspective of law, or indeed, the relation of law to morality in itself. Indeed, he pursues an engagement with the law not only in chapter 6 on intervention but also in the previous chapter, where he provides a scathing moral criticism of legal positivism, a criticism that is recalled in his discussion of the legal arguments regarding the use of military force for humanitarian intervention, where a depiction of the relevant international law in positivistic terms is commonplace.Biggar's stance is particularly reminiscent of Ramsey's and invites a brief rehearsal of how Ramsey approached the relationship between morality and law with reference to intervention. Whereas Biggar refers his own stance in his critical engagement with the law to “a higher, natural law,” Ramsey begins instead with a normative statement about politics: military intervention is “among the rights and duties of states unless and until supplanted by superior government” (Ramsey 1968, 20). If such a higher governmental order existed, then the responsibility would rest there, but, he argues in the next pages, there is no such superior order in the international arena, so that the obligation of maintaining justice and the right to use military means in doing so falls on the states and, he believes, particularly on the United States: “The primary reality of the present age and the foreseeable future is that the United States has had responsibility thrust upon it for more of the order and realized justice in the world than it has the power to effectuate” (23). There is thus a tension, on Ramsey's analysis, between the empirical possibilities of politics and the moral obligations imposed by the nature of good politics. The problem of statecraft in any specific case is to resolve this tension so far as possible.To explain how this is to be done, Ramsey distinguishes between “ultimate” and “secondary” grounds for intervention. The first, which he also terms the “just war” grounds, he defines by four considerations: the requirements, respectively, of justice; order (“both terminal goals in … proper politics” [29]); the national and international common good (which “are not always the same” [29]); and domestic and international law, which may also pull in different directions. In reaching a decision about intervention in a given case the “statesman” must make judgments about the degree to which the action would sustain or increase justice and order, seek to serve both kinds of common good by operating within the area of overlap between them, and, as to the law, judge the requirements it sets by the demands of justice, which ultimately stand above particular iterations of the law (29–30). What Ramsey terms the “secondary” grounds for intervention are actually the two types of intervention allowed in international law: counterintervention and intervention by invitation in conflicts already ongoing (33–38). Ramsey argues that even in these cases the “ultimate” justifications must all be satisfied, but more interesting is his argument that in cases not allowed by these two legal provisions and despite the existence of law to the contrary, concern for the responsibility to serve the “terminal” political goals of justice and order may justify action.Although the details of his analysis and argument are different from Biggar's, Ramsey and Biggar offer similar understandings about the requirements of morality relative to law and the practice of politics: there are fundamental norms built into the nature of human interactions, and these ultimately are more important than the demands of any given positive law. The sources of these higher norms and the nature of the claims they make on human action, though, are not spelled out by either Ramsey or Biggar in the context of their treatment of intervention. Who is bound by these norms? To what degree ought the law to reflect them? As to the matter of enforcing the claims imposed by these higher norms, that is precisely the function that intervention provides, but since these higher norms are invoked to justify intervention, there is a circular quality to the reasoning.In Ramsey's case, though he did not develop his normative claims about the “rights and duties of states” and about justice and order as “terminal goals” of politics in the specific context of his discussion of intervention, which was originally written in 1965, he did give a fairly explicit account of his thinking on these matters somewhat later, in a chapter titled “A Political Ethics Context for Strategic Thinking” in a collection published in 1973 (Kaplan 1973, 101–47). There he wrote as follows: If no one today can write a unified politico-ethical treatise such as that of Aristotle, it nevertheless should be understood that when we speak of ethics in connection with politics we properly mean political ethics, that is modalities of ethics appropriate to politics…. Ethics are not logically, externally related to politics. These two distinguishable elements are together in the first place, internally related. Our quest should be for the clarification of political ethics in its specific nature, for the ethical ingredient inherent in foreign policy formation, for the wisdom peculiar to taking counsel amid a world of encountering powers, for—as a sub-set—the laws of war and of deterrence so long as these are human activities properly related and subordinated to the purposes of political communities in the international system.(124–25; an abridged version of the chapter as a whole appears in Ramsey 1988, but without this passage.) For the final piece of this picture one must recall the interpretation of Augustine given by Ramsey's teacher H. Richard Niebuhr in Christ and Culture (Niebuhr 1951, 206–18), which Ramsey adopted as his own view: that grace, once it has entered history through the coming of Christ, thereafter works in hidden but ineluctable ways to transform history toward its ultimate perfection in the City of God. Thus when Ramsey speaks of ethics and politics as “together in the first place, internally related,” or when he identifies justice and order as the “terminal goals” of politics, he is not simply working from Aristotle or from the larger conception of politics as defined by certain goods or ends that became normative for the classical world and remained so in the West in the Middle Ages and up to the era of the Reformation; he is also reflecting a conception of these “terminal goals” (in the tradition the goods or ends toward which politics properly tends were three: order, justice, and peace; Ramsey reverses the first two and does not mention peace). He is also working from a conception of these as shaped by the working of grace (divine love) throughout history thus far, so that the “terminal goals” he mentions are also, at least to some degree, expressions of the power of divine love in history. It was characteristic of Ramsey to employ entirely secular language when writing for a secular readership, but the theological base was there nonetheless. The end result is that on his understanding politics itself demands certain kinds of behavior, and where these demands are violated or ignored in a given state, other states have the right and responsibility to intervene to change this. At the same time, theologically understood, this is action in conformity to what grace is doing in transforming history toward its ultimate conclusion.Biggar's appeal to natural law signals a somewhat different line of argument based on different conceptions about the relation of ethical values to politics. The question remains, though, just what this appeal entails. Historically, the idea of just war and that of natural law are interrelated: Biggar knows this and signals it when he says that natural law understood as a “universal moral order” is assumed by “the Christian doctrine of just war, both early and late” (309). Perhaps he believes this means he need say no more. But I suggest the picture of the relationship between the just war idea and natural law is by no means so simple or straightforward. More does need to be said.When the idea of just war came together in what I call its “classic” form in canonical and theological thought in the late twelfth and thirteenth centuries, beginning with Gratian's Decretum, part II, causa 23 (see Reichberg, Syse, and Begby 2006, 109–24), proceeding through further conceptual development and clarification by the subsequent two generations of canonists, and stated summarily by Aquinas in the context of his theological system in Summa Theologiae II/II, Q 40 (see Reichberg, Syse, and Begby 2006, 176–82), the same intellectual circles and sometimes the same individuals were also involved in the recovery and amplification of the late Roman idea of natural law. As inherited from Roman thought this latter idea formed the apex of a pyramid of types of law that included Roman positive law and the various forms of ius gentium of the peoples who made up the Roman Empire. On that conception, Roman law was understood as a superior expression of the natural law, one that superseded the ius gentium of any community of people within the empire where there were points of difference. The medieval thinkers used Roman law as a reference point for the content of natural law, but in the social and political conditions of their time there was no single universal positive law functioning the way Roman law did in the empire. As a result, ius gentium became a more important category, for each political community had its own positive law, and the theory that developed tested these expressions of positive law directly by the standard of natural law. This is where the idea of just war came in: a sovereign ruler (one with no temporal superior; the Latin word for such a ruler was princeps, prince, but by this time souverain was in use as an equivalent in French, and this carried over into the English sovereign) was understood as the person with final responsibility for the common good of the political community he (or sometimes she, or even in some instances they) ruled, a common good defined in terms of maintaining an order that served justice and rectified injustice and thus served peace. This responsibility came directly from the natural law, and part of it was the sovereign's right and duty to interpret the meaning of the natural law in particular cases. When the sovereign was presented with a case in which a violation of justice was held to have been perpetrated, the sovereign's responsibility was to decide, first, whether there was in fact an injustice; second, what measures needed to be taken to rectify any violation of justice, including punishment of the violator; and third, to act so as to carry out those measures. A ruler who did not do this was, by definition, not fulfilling his responsibility under the natural law; one who went so far as to perpetrate injustice himself was not even any longer a proper sovereign, a princeps, but a tyrant. We see this line of thinking carried through and summarized in Aquinas's treatment of tyranny in the Summa Theologiae (II/II, Q 42, A 2) and more fully in his Commentary on the Sentences of Peter Lombard (A 2) and his On Princely Rule (the last two discussions found in Reichberg, Syse, and Begby 2006, 193–98).But a corollary was that the meaning of the natural law in a given case was understood as being determined by the judgment of the sovereign ruler of a political community, acting as judge of last resort in that community. From one perspective, this could seem to be a recipe for conflict, as different rulers might offer different interpretations and thus judgments. The check against this was that the church, working first through the canonists' description of the natural law and later, as systematically defined by Aquinas, conceiving the content of natural law as both partly given in Scripture and wholly included in the law of God known through revelation, effectively imposed a consensus as to the content of natural law. The classic idea of just war endured from the high Middle Ages till early in the modern period precisely because of this cultural consensus. But the idea that this consensus was in fact universal across humanity was challenged by the European experience of different cultures through trade and conquest. The consensus broke down entirely in the wars of religion during the Reformation era, as Catholic and Protestant rulers alike interpreted their responsibility under natural law to include suppression of religious dissent, conceived as a challenge to the order, justice, and peace of the political community. Toward the end of this warfare it is interesting to observe how Grotius, the structure of whose treatment of the natural law idea is remarkably similar to that of the medieval canonists, ends up with a sharply truncated conception of natural law in terms of the right of self-defense, redefining both the idea of sovereignty and the idea of just war accordingly.The idea of natural law has not been the same since, and Biggar's reference to it does not seem to acknowledge this. Nor does his stress on the value of justice in the just war idea take account of the priority given in classic just war thinking to the responsibility of the sovereign ruler not only to vindicate justice but also, in the ruler's capacity as supreme judge, to provide a judgment about the meaning of justice in a given case. Biggar speaks of “the Christian doctrine of just war, early and late,” taking “for granted” the existence of a universal moral order (309). I certainly agree that Christian just war thinking and teaching assumes such a higher, universal moral order. I have suggested that from the high Middle Ages till early in the modern period there was a consensus in European culture about the content of this order in terms of a conception of natural law. But I do not agree that such commonalty extends into “late” Christian just war teaching and thinking, if that refers to the diverse conceptions of just war encountered in discussions from recent decades. One would need only to consider all the numerous and contradictory ways in which the idea of just war has been rendered there, sometimes by Christian writers and sometimes not (but the latter presumably responsible to the natural law in any case), to encounter a vivid demonstration of the lack of common agreement about the content of the overarching moral law and its implications regarding political life and the use of military force.Viewed from this perspective, one may say that the positivistic conception of international law on war as coming into being from the agreement of states represents an effort to identify and define as normative a common core of agreement among states about what is right and wrong, what is allowed and disallowed, in the use of military force. No common core of universal values is assumed apart from the content of what is agreed to specifically by the states. This way of conceiving international law is relatively recent. The concept of the “law of nations” in such early writers on that theme as Grotius and Pufendorf was not simply a statement of what nations agreed among themselves about their conduct with one another: though it was that, it also referred to the preexistent core of common values on which such agreement was based. In the work of Vattel, a century after Pufendorf, the law of nations rests on the common agreement of nations, each agreeing for its own reasons; yet on his description it functions rather as a statement of a common moral consensus than as actual law. Vattel's conception of the law of nations can be seen as presaging the later positivistic understanding of international law, but as he left the matter, there was still no such law. A century and a half after Vattel, international consensus (at least among Western societies) about the “laws and customs of war” was assumed by nineteenth-century legal writers, including Francis Lieber, the principal author of the first modern manual of land warfare, issued as United States Army General Orders No. 100 in 1863. These “laws and customs” bound morally, not legally, for there was no structure of positive law in the international arena.The origins of positive international law lie in the steps taken toward positive formulations of rules for warfare undertaken in the later nineteenth and early twentieth centuries, from the first Geneva Conference of 1863 to the Hague Conferences of 1899 and 1907, where the participating states formally consented to be bound by the rules (“Conventions”) they had mutually drafted and agreed upon. But it was clearly still understood that behind these lay a long tradition of customary law that expressed common values—values sometimes attached to the idea of “civilization,” sometimes to the idea of “humanity.” This language from the opening paragraphs of 1907 Hague Convention IV Respecting the Laws and Customs of War on Land is typical of the period: the signatories are “animated by the desire to serve … the interests of humanity and the ever progressive needs of civilization,” and seek in the Convention “to revise the general laws and customs of war, either with a view to defining them with greater precision or to them within such as would their and The idea that the law normative to in relatively recent standard works on international law, whether these are those of (e.g., or those of (e.g., and the law in normative with implies that the states have a right to terms to the or which does not down in the context of the of all states in the United The idea that there are common of is at the core of the idea of but in practice it has to agreement on what these are or what they in specific as the history of the international effort to define and as we see also in the of the development of the “responsibility to protect” idea from its original expression by universal are clearly to its truncated form in the 2005 World Outcome the matter of of rights a matter of political decision and is in his on the of about humanitarian intervention based in a positivistic understanding of international law, but what he to say about the normative frame of natural law, from which he If the content of this law is as his language sometimes appears to then is it that should agree to be by what should do with to those who of chapter 6, titled “The for Biggar argues that the for such are not given that “the moral and political norms across the are and international is In the next he might agree norms, and we might even agree upon certain of those We are to agree that a given case against a and we are to agree upon what action, if should be taken against the But what does an appeal to a universal natural law if it does not mean agreement on and … certain of those I have that international law as it was about just this. I as toward the positivistic understanding of international law as Biggar, I have long argument for that and understanding across the lines of major cultural or the of that may to across those same what is may only be and … certain of those I still this is But what of the next is about even as I about the international which is far from a Toward the end of this he the foreseeable we in which is political, if not simply see also his to the at and in this I the same in an Intervention (Johnson But what does this For the idea of the political to the classic conception of as properly the goods or ends of politics: order, justice, and conceived as and mutually It to the understanding of the idea of just war as systematically in that century and a from to Aquinas, in which the responsibility of those with sovereign needed to be through judgment about the requirements of Biggar a related idea earlier in the chapter, when he the decision to intervene in one place rather than can be an expression of the moral of I would say that it always ought to be For good moral and through it the meaning of justice takes To Ramsey's language ethics and politics are “together in the first place, internally But this implies serious to the of where is actually and this in that the judgments of states where the of the common good are taken have a moral that may be in positivistic interpretations of international law by people who have no responsibility for and in the by international whose are responsible first to their own political

Reflections on BDS

In December 2016, the Obama administration released a Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (Report). Its purpose was to “enhance the public’s understanding of the legal and policy principles that have guided U.S. national security operations”. The Report outlines the administration’s view of international and domestic law regulating the resort to, and use of, armed force against non-state armed groups in the territory of other nations, here called “transnational self-defense.” In a personal foreword, President Obama claimed that the Report “reinforce[s] the fact that we defend our interests at home and around the world in a manner consistent with the laws, values, and traditions that are the source of our greatest strength.” In this chapter I argue that the Report and related 2013 Presidential Policy Guidance (PPG), which I collectively label the “Obama doctrine,” are inconsistent with both international law and fundamental American liberal values in two important ways. First, the Obama doctrine permits the resort to force in preemptive self-defense when not clearly necessary to avert a grave threat of impending harm. Second, the Report and PPG strongly imply that all uses of force in transnational self-defense occur within the context of armed conflict regulated by international laws of war. This adoption of an armed-conflict paradigm for all acts of transnational self-defense is erroneous in some contexts: not all violence between states and non-state actors creates or occurs within an armed conflict to which the laws of war apply. Relatedly, the Report extends its law of war paradigm to attacks against all “associated forces” of a non-state group without precisely outlining a legal and factual basis for doing so. When combined, these errors allow for much greater destruction of life and property than is clearly necessary to defend against a relatively specific, certain, impending threat of harm. Respect for international law and American liberal values requires a much more circumscribed and calibrated approach to transnational self-defense.

Стаття присвячена проблемі підвищення ефективності протидії застосуванню військової сили з боку більш сильного у воєнному відношенні противника шляхом асиметричного впливу у вразливих для нього точках і завдання йому неприйнятного збитку, за якого він вимушений відмовитися від подальшого застосування військової сили. Розглянуто метод формування групи суб’єктів, яка в умовах обмежених ресурсів здатна завдати противнику такого збитку.

THE INTERNATIONAL LAW REGARDING SHIP-SOURCE POLLUTION LIABILITY AND COMPENSATION: EVOLUTION AND CURRENT CHALLENGES

Economic Sanctions Against Human Rights Violations

Snapshot: The Process of Change in International Space Law Politics

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink. Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense. This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law. As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define direct participation in hostilities, have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.The draft policy paper runs 20,000 words and is a Working Paper of the Series on Counterterrorism and American Statutory Law, a project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, none of whom are responsible for the contents of individual papers. A finalized version of the paper will appear in Benjamin Wittes, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).

Cicero said laws are inoperative in war (“s ilent enim leges inter arma ”). In fact, there is U.S. and international law that applies to the decision to use force and the manner and method in which it is used. In U.S. practice there are three contextual legal questions that should arise when the president or his advisors contemplate the use of military force. First, does the president have the constitutional authority to use force? This is a “war powers” question. Second, is the contemplated force lawful under international law? This is a question involving that portion of the law of armed conflict known as the jus ad bellum (thresholds for resorting to force). Third, are the means selected lawful? This is a question involving the jus in bello (the law applying to the means and methods of war). It may also be a question of U.S. criminal law to the extent that U.S. law implements international law, or imposes obligations independent of international law. Few areas of law are as important to national security as is this collective body of domestic and international law. This is intuitive in situations in which force is actually used; however, in other scenarios falling short of force the implied or express threat of military intervention is itself the catalyst for policy influence. For the national security lawyer, no area of law will have the same implications in defining a world of public order and individual security.

Most cyber-intrusions now and in the foreseeable future will take place outside the traditional consensus normative framework for uses of force supplied by international law. For the myriad, multi-layered and multi-faceted cyber-attacks that disrupt but do not destroy, whether state-sponsored or perpetrated by organized private groups or single hacktivists, much work remains to be done to build a normative architecture that will set enforceable limits on cyber intrusions and provide guidelines for responses to disruptive cyber-intrusions. In this paper, my interest is directed at a subset of those cyber-attacks – those where terrorists are responsible or attribution is not known but points in terrorists’ direction, and where the effects are very disruptive but not sufficiently destructive to cross the traditional LOAC and Charter self-defense thresholds. For this subset of cyber attacks, counterterrorism law may offer a useful complementary normative supplement to LOAC and the Charter. Especially over the last decade, a corpus of counterterrorism law has evolved as domestic and international law in response to transnational terrorism. In contrast to the dominant pre-September 11 conception that countering terrorism involved either the use of military force or enforcement of the criminal laws, counterterrorism law now incorporates a diverse range of responses to terrorism, many of which are borrowed, sometimes in modified form, from existing international and domestic law. Based on a maturing international legal regime, this article concludes that over time and through state practice, along with legal, strategy and policy development in the international community a set of counterterrorism law norms for cyber war could emerge.

The relationship between domestic civil–military relations and the use of foreign military force has been long debated. The two primary perspectives on the issue, civilian conservatism and military conservatism, are antithetical. The former maintains that military authorities are more likely to advocate for the use of military force than civilian counterparts, while the latter advances the opposite argument. Empirical research to date has added little clarity to the relationship. We shed new light on this long running controversy through analyses of a different, and arguably more appropriate, set of measures for the key variables of concern: civilian control, civil–military conflict, and the use of foreign military force. In zero-inflated negative binomial estimates of 165 countries from 1946 to 2010, we find consistent support for civilian conservatism. More specifically, when civilian control erodes or civil–military conflict reaches particularly high levels, the likelihood that a state will launch a foreign military intervention increases.

A methodology for predictive evaluation of the effectiveness of an asymmetric response to modern threats is presented in the interests of ensuring an adequate level of military security of the state. In the context of the integrated use of military and non-military instruments (economic, political, information-psychological, etc.), there was a need to evaluate and predict the effectiveness of the asymmetric use of military and non-military forces and means in countering force pressure and the use of military force against a state that opposes a stronger military opponent. The main limitation of the state, which conduct offensive actions, is the loss of personnel. For the state-victim of aggression, the loss of personnel, population, infrastructure, etc. in such a conflict much more. World experience shows that the state, which is significantly weak in military relations, by carrying out asymmetric measures to counter threats by military and non-military subjects of the defense forces, is capable of inflicting unacceptable damage on the enemy, including and in non-military areas of security, and thereby force an even stronger military opponent to abandon the use of military force against it. We propose the effectiveness of counteracting state aggression, which significantly dominates the target state in military power, to assess the total level of threat de-escalation at a certain time due to the symmetric (direct military) and asymmetric (complex) counteraction of aggression in the form of conducting a local special operation. The number of local special operations is determined by the capabilities of the state-victim of aggression. Formed system of restriction and decision-making criteria defined the aggressor state to refuse further aggressive actions.