Tag: international justice (page 2 of 2)

Use it or lose it

A recent paper from Brookings, Georgetown and Hoover discusses the international legal aspects of targeted killing. As you would expect, American policy isn’t in sync with the emerging global norm. An idealist might argue that the US is in the wrong (and they have a very strong case under the International Convention on Human Rights); a Realist might argue that the US needs the latitude to kill because it (or somebody–and nobody else is available) has the responsibility to combat enemies of the legal regime that everyone else assumes. The point that I hadn’t thought of before is the conclusion that the US might want to be open about what it is doing and assert–as a legal principle–that this is as it should be.

The ultimate lesson for Congress and the Obama Administration about targeted killings is “Use it or lose it.” This is as true of its legal rationale as it is of the tool itself. Targeted killings conducted from standoff platforms, with improving technologies in surveillance and targeting, are a vital strategic, but also humanitarian, tool in long-term counterterrorism. War will always be important as an option; so will the tools of law enforcement, as well as all the other non-force aspects of intelligence work: diplomacy and coordination with friends and allies. But the long-standing legal authority to use force covertly, as part of the writ of the intelligence community, remains a crucial tool—one the new administration will need and evidently knows it will need. So will administrations beyond it.

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The death of Osama bin Laden and his top aides by Predator strike tomorrow would alter national security counterterrorism calculations rather less than we might all hope. As new terrorist enemies emerge, so long as they are “jihadist” in character, we might continue referring to them as “affiliated” with al Qaeda and therefore co-belligerent. But the label will eventually become a mere legalism in order to bring them under the umbrella of an AUMF passed after September 11. Looking even further into the future, terrorism will not always be about something plausibly tied to September 11 or al Qaeda at all. Circumstances alone, in other words, will put enormous pressure on—and ultimately render obsolete—the legal framework we currently employ to justify these operations.

What we can do is to insist on defining armed conflict self-defense broadly enough, and human rights law narrowly enough—as the United States has traditionally done—to avoid exacerbating the problem and making it acute sooner, or even immediately.

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We stand at a curious moment in which the strategic trend is toward reliance upon targeted killing; and within broad U.S. political circles even across party lines, a political trend toward legitimization; and yet the international legal trend is also severely and sharply to contain it within a narrow conception of either the law of armed conflict under IHL or human rights and law enforcement, rather than its traditional conception as self-defense in international law and regulation as covert action under domestic intelligence law. Many in the world of ideas and policy have already concluded that targeted killing as a category, even if proffered as self-defense, is unacceptable and indeed all but per se illegal. If the United States wishes to preserve its traditional powers and practices in this area, it had better assert them. Else it will find that as a practical matter they have dissipated through desuetude.

Does the US (or someone) have the right to target individuals? In States where the US is not formally at war? Inside the US?

I suspect that someone has to have the job of playing cop in the international system. I don’t see anyone but the US who is able and willing to do it. A UN force is a possibility, but it still comes down to great power politics and capabilities. On the other hand, I don’t want to give the cops–any cops–the right to target whoever they choose. Even if they start with the best of intentions, that’s a structure that corrupts the cop, alientates the community, and kills the innocent.

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Justice in Niger

The judicial organ of ECOWAS has found the government of Niger guilty of failing to prevent slavery within its borders.

“The landmark ruling, the first of its kind by a regional tribunal now sitting in Niamey, Niger’s capital, ordered the government to pay about $19,000 in damages to the woman, Hadijatou Mani, who is now 24.

Slavery is outlawed throughout Africa, but it persists in pockets of Niger, Mali, Mauritania and amid conflicts like the one in northern Uganda. Antislavery organizations estimate that 43,000 people are enslaved in Niger alone. Ms. Mani’s experience was typical of the practice. She was born into a traditional slave class and sold to Souleymane Naroua when she was 12 for about $500. Ms. Mani told court officials that Mr. Naroua had forced her to work his fields for a decade. She also claimed that he raped her repeatedly over the years. Ms. Mani brought her case to the court this year, arguing that the Niger government had failed to enforce its antislavery laws.

This is a significant ruling not just in Niger and not just in regards to the slave trade. However, I wonder if it’s significant in the ways that some antislavery activists in the region are claiming. For example:

“For 17 years, we have been working towards bringing slavery to the attention of the authorities,” said Ilguilas Weila, president of Timidria, a Niger antislavery advocacy group, in a statement. “This verdict means that the state of Niger will now have to resolve this problem once and for all.”

That’s not at all clear to me, since like some other regional courts the Community Court of Justice does not actually have the power to enforce its rulings. As my former professor Robert Darst liked to say, the absence of teeth means it has less power than Judge Judy, whose guests sign contracts agreeing to abide by her rulings; the contracts, though not the rulings themselves, are enforceable through tort law in a US Court. By contrast, no authority will punish a state who simply ignores such rulings; so they tend to be what states will make of them. There is a real question as to whether Ms. Mani will see a penny of this money, or whether the shaming effect of this ruling will have a long term impact on the enforcement of anti-slavery laws in Niger.

But it may. It is notable that the Niamey government does have such laws on the books and is not in the business of openly condoning or winking at slavery. In recent years the policy has been one of denial (as opposed to justification), suggesting a growing, acknowledged opprobrium; and what this case does is invalidate such denials. This may force the government to adopt stronger anti-slavery measures, since it clearly wishes to convey that it opposes the practice. It’s one thing to deny a practice is occurring; it’s another to excuse it once public evidence is presented by a neutral third party. The press attention to the verdict will help.

The case will also draw much-needed attention to the persistence of slavery in West Africa (let’s hope that it doesn’t obscure similar practices elsewhere in the world). Anti-slavery activists claim there are at least 40,000 people kept as slaves in Niger; smilar conditions exist in Mauritania and Mali.

Beyond the immediate impact on Nigerian law enforcement (if any), on Ms. Mani, or on anti-slavery activism, the case will have an impact in another respect: it is one in a growing trend in international jurisprudence that places the responsibility on states for human rights abuses inflicted not by agents of the state, but by citizens on one another. We can expect to see this case cited by activists and lawyers concerned with many other private human rights abuses such as domestic violence, honor killings, and hate crimes.

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