Tag: international norms (page 1 of 2)

What Do International Law and Norms Say About Burning People Alive?

One line of discussion this past week has been whether it makes any kind of moral sense to think that  death by chemical weapon is so much worse than death by “conventional” weapons. Video imagery captured by BBC in the aftermath of another horrific massacre in Syria yesterday throws this into stark relief. At least ten children burned to death and scores others were left with horrifying injuries after a flammable substance was dropped on a school playground yesterday. Continue reading

Intervention to Punish? Or to Protect?

stopsyriaTwo kinds of military intervention are being discussed and conflated by political elites (like Nicholas Kristof) and international diplomats. The first is an enforcement operation to punish a state for violating a widespread and nearly universal global prohibition norm against the use of chemical weapons. This is what Kristof refers to in the title of his Times op-ed, “Reinforce a Norm in Syria.”  The second is a humanitarian operation to protect civilians against a predatory government. This is what Kristof means when he compares proposed military strikes in Syria to intervention that happened in Bosnia and Kosovo and (tragically) didn’t happen in Rwanda.

Well, it’s useful to clarify which we are talking about since both kinds of operation involve very different tactics and different kinds of legal and moral reasoning. I discuss both at Foreign Affairs this morning:

[If punishing norm violators is the goal], the appropriate course of action would be to, first, independently verify who violated it…. Second, the United States would have to consider a range of policy options for affirming, condemning, and lawfully punishing the perpetrator before resorting to force, particularly unlawful force… Third, should the United States decide on military action, with or without a UN Security Council resolution, it would need to adhere to international norms regulating the use of specific weapons in combat.

But such a strike should not be confused with military action to protect civilians.   Continue reading

If Syria Used WMD, It Violated International Law. But So Would a US Intervention.

In the New York Times yesterday, Northwestern University political scientist Ian Hurd lays down the law on Syria and intervention:

As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States… Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993… Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars. But this treaty was designed after World War I with international war in mind, not internal conflicts.

[And] the conventions also don’t mean much unless the Security Council agrees to act. The United Nations Charter… demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense  — but not purely on humanitarian grounds.

Of course ethics, not only laws, should guide policy decisions…  if the White House takes international law seriously — as the State Department does — it cannot try to have it both ways. It must either argue that an “illegal but legitimate” intervention is better than doing nothing, or assert that international law has changed — strategies that I call “constructive noncompliance.” In the case of Syria, I vote for the latter.

Hurd is right about a great many things: that Syria’s obligations under treaty law are weaker than people want to think; that there are legal tensions here that the US cannot and shouldn’t try to wish away; and that a decision must be made between doing something and doing something lawfully; and that the robustness of international norms around both R2P and chemical weapons are at stake in how the US and UK frame the discussion.

But I think Hurd is both under-stating the case about Syria’s international legal obligations, and over-stating the case about US options in framing a potential military intervention. International law indeed is “changing” – but the relevant changes he describes apply to Syria’s responsibility to its civilians, not to the US’ right to reinterpret the UN Charter. And ultimately, as he points out, even Syria’s violations of law don’t make it lawful for the US to intervene without a Security Council resolution – however ethically right such an intervention may be. The two are really separate legal questions so I’ll address them separately below. Continue reading

Institutions, Norms, and Cooperation

A strong correlation between cooperation and membership in international institutions is not enough to establish that international institutions cause cooperation.   If we’re to claim that institutions matter, we need to at least identify mechanisms by which institutions might promote cooperation among actors who would otherwise be disinclined to cooperate with one another.  The mere fact that such mechanisms can be articulated does not itself tell us whether the correlation is causal, but it lends a certain measure of plausible to causal interpretations that would otherwise be lacking.

Indeed, scholars have identified a variety of such mechanisms, from raising reputation costs to solving coordination problems to monitoring compliance and thereby overcoming information problems.  But even committed neo-liberals will generally grant that these arguments merely identify ways in which institutions provide a little push that can make the difference when (and only when) states almost meet the conditions under which cooperation would occur in an anarchic world.  And if that’s all that institutions do, then they can’t really matter all that much, can they?
Actually, yes.

If you grant that international institutions matter at the margins, you’ve already conceded that they make a big difference to the overall level of cooperation we can expect to observe in the international system.  See this post over at my personal blog for an explanation.

Right to leisure?

The Universal Declaration of Human Rights (UDHR) includes a right that many grad students and professors probably feel is constantly under attack: the right to leisure.  It’s there, clearly laid out in Article 24: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”  Whenever I introduce the UDHR to a room full of undergrads, I always get some smart aleck in the front row that is quick to associate the document with some sort of lofty, unattainable ideal because of this right.  What exactly is the right to leisure?  And, why is it included among seemingly more important rights, like the right to freedom from torture or political imprisonment?

Continue reading

The Diffusion of Oil Income Transparency

This is a guest post by Jeff Colgan, an assistant professor in the School of International Service at American University.

Policy responses to the resource curse are diffusing in the international community. In August, the U.S. enacted rules that could reduce corruption, promote political accountability, and maybe even reduce the probability of war. The decision was encouraged transnationally by actors from developing countries. Now the European Union and other countries are taking up the torch. All of this points to an intriguing transnational pattern of policy diffusion of which scholars ought to take note.

Some background: in August, the Securities and Exchange Commission (SEC) finally enacted long-overdue regulations stemming from the Dodd-Frank Act which will require any oil company that is publicly listed on a U.S. stock exchange to report its tax, royalty, and other payments to foreign governments. Previously, companies were able to conceal this information, making it difficult for civil society in developing countries to hold their leaders accountable, thereby exacerbating the resource curse.

Intriguingly, the campaign for transparency on oil revenues is transnational, and often includes actors in developing countries that want help in binding the hands of their own governments. Policymakers in developing countries are demanding transparency, as a recent NY Times op-ed by a Libyan official shows. This seems to follow a pattern of transnational advocacy described by Keck and Sikkink.

Now the U.S. policy is being copied by other countries. The European Parliament recently held a committee vote that would require oil, gas, mining and forestry companies listed on EU stock exchanges to disclose their payments to foreign governments, country by country and for each project. Canada is also considering transparency rules for its mining industry that mimic the SEC rules, though the oil industry does not seem to be included (yet?). Interestingly, it is some of the leading mining firms that are pushing for the rule changes in Canada, in contrast to the general industry opposition seen in the U.S. So in addition to transnational advocacy, we now have the kind of policy diffusion noted by Simmons and others.

This policy proliferation is good news. As I argued in Foreign Policy, the rule change is not just beneficial for development, but also for international security. If oil money is not managed well, it often gets used to fund civil and international wars. In particular, oil-producing states led by revolutionary governments are more than three times as likely to instigate militarized interstate disputes as a typical state. Oil income can make petrostates aggressive, which leads to wars like Iraq’s invasion of Kuwait and Libya’s various battles with Chad and other neighbors. Those wars often draw in the United States  (My book on this subject, Petro-Aggression: When Oil Causes War, is forthcoming in 2013).

Still, transparency is not a panacea. I view transparency as a “probably necessary, and certainly not sufficient” condition for promoting good governance in the extractive industries. But we’d also like to know what else a country needs to do to avoid the resource curse. I think there’s an opening here to study the extent that transparency actually enables the kind of political accountability and good governance that advocates hope it does. (Some work on this issue is already underway: see Gillies and Dykstra in Cheng and Zaum, 2011)

There is also, it appears, an increasingly important opportunity to study the proliferation of resource-income transparency rules as an exemplar of transnational advocacy and diffusion.

“Reversing the Burden of Proof”: Tactic or Norm

An interesting observation I took away from this meeting is the frequency with which I heard practitioners talking about the need to “reverse the burden of proof” from advocates (to prove that a particular weapon causes significant humanitarian harm) to governments (to prove that it doesn’t). As Richard Price documented in his study of the landmines campaign and John Borrie documented in his landmark genealogy of the cluster munitions convention, the ability to shift the terms of debate in this way is a pivotal component of successful campaigns in the area of weapons.

At the same time, this appears to be a tactic used during specific campaigns only, rather than a broad principle itself being proposed and promulgated throughout the human security network. I wonder what humanitarian disarmament advocacy might look like if, rather than going to governments to deal with specific weapons issues in a piecemeal manner, advocates pushed for governments to document the humanitarian harms of their weaponry and justify their use on a regular basis.

Indeed, this latter is precisely the point of the Casualty Recording Campaign, spearheaded by the Oxford Research Group in collaboration with IKV Pax Christi and Article36.org, which would require states to do body counts in armed conflicts and report their results to the international community. While the campaign is conceived primarily to ensure the dignity and recognition of victims, if its goals were achieved it could also be a mechanism for “reversing the burden of proof” in a wider and more systematic sense around weapons issues – in short, make it more of a constitutive humanitarian norm (much like the precautionary principle in the area of environmental health) and less like a tactic to be used only in discrete cases.

In Weapons Advocacy as in Health, Prevention is Better Than Cure

A heavily attended side-event today was the Norwegian Red Cross‘ panel discussion “Looking Back to Look Forward: The Cluster Munitions Convention and What it Means for Limiting the Impact of Other Weapons Systems.”

Richard Moyes, coordinator of the International Network Against Explosive Weapons, presented a compelling address about the importance of regulating the use of explosives in populated areas, and putting the burden of proof on states to document the humanitarian costs of the weapons they use in conflict zones. University of Sheffield’s Noel Sharkey presented on the dangers of trends toward increasingly autonomous weaponry. And Peter Herby, head of the International Committee of the Red Cross’ Arms Unit, had a clear message for delegates and NGOs that tied together these specific calls for action: states need to do more to properly review the humanitarian acceptability of weapons – cyber-weapons, non-lethal incapacitants, autonomous weapons, nano-weapons, bio-weapons and others – before they are widely deployed.

States have long been required to do so under Article 36 of the first 1977 Additional Protocol to the Geneva Conventions, but according to Herby as few as 12 signatory governments have established mechanisms for actually reviewing new weapons before they are deployed. And nor is there any independent body responsible for overseeing those reviews, as exists other areas of global governance. More typically, weapons development proceeds apace until some outcry from civil society, as is now beginning to happen in the case of autonomous weapons.

But this outcry is often too slow in coming: civil society has historically been likelier to condemn weapons already in widespread use than new weapons whose effects are uncertain. The reason is simple: it’s much easier to conduct ‘remedial’ campaigns on issues where widespread humanitarian harms have already been documented, as a combination of testimonial and statistical evidence of a problem is often a prerequisite for creating a sense of urgency around an issue. Thus campaigns against landmines, cluster munitions, incendiaries and explosive violence have emerged in recent years only after decades of mounting and evident civilian harms.

Nonetheless, as Herby emphasized today, “prevention is better than a cure.” And as he pointed out, pre-emptive bans are not unheard of nor necessarily infeasible: two important examples are the ban on exploding bullets promulgated by Russia in the nineteenth century at the behest of military specialists; and the ban on blinding lasers negotiated in 1995, before the widespread deployment of these weapons. In the case of nuclear weapons in particular, Herby said:

“The only option is prevention. This is an area in which we need to make efforts because remediation will be too late.”

Richard Moyes of Article36.org, an NGO dedicated to humanitarian disarmament, echoed Herby’s sentiments regarding nuclear weapons in a response to an ICAN representative’s query on how to move forward to a nuclear ban:

“You can feel a sense of momentum already in that direction, a fairly clear concept of a treaty prohibition on nuclear weapons is starting to take holds in a number of people’s minds. I think we can take confidence from the CCM that we can learn from communities that worked together on that. And I think we can learn from the overall standard-setting initiatives here as well, that we need to take it into our own hands to establish the standards we want to see in the world, not sit beholden to those who hold over our heads weapons capable of killing thousands of people in an unacceptable way. We as a community can start to address that, states without nuclear weapons can start to address that, we don’t need to wait to have nuclear armed states on board to articulate a treaty prohibition on these weapons. We need to make clear those weapons of mass destruction need to go the same way as chemical and biological weapons, landmines and clusters, subject to a straightforward prohibition on their use, stockpiling and production.”

A Farewell to Norms

Here’s something funny: I’ve been so mired in studying how international norms emerge for the past few years that I haven’t given much thought at the theoretical level to how they fall apart. To be fair, constructivists have paid much less attention in general to norm death than they have to norm creation. Finnemore and Sikkink’s “norm life cycle” stops at norm internalization. And even though scholars like Patrick Cottrell have pointed out that new norm creation itself usually happens by killing off old norms or institutions, there’s not a lot of studies about how norms collapse.

Then along comes Dick Price‘s student Ryder McKeown with an article I missed (thanks to Betcy Jose for sending it my way). McKeown modifies Finnemore and Sikkink’s norm life cycle argument by extending their model to include “norm regress” and illustrating this dynamic through a discussion of US revisionism around the torture norm.

Constructivist literature on norms has hitherto suffered from a `nice norm bias’ that does not adequately take into account the reversibility of so-called `internalized’ norms like the one prohibiting torture. Through an examination of the rhetoric, policies and practices surrounding US interrogation after 9/11, this article addresses omissions in constructivist literature by providing a theoretical model to explain `norm regress’, or the death of norms. It claims that the torture norm is suffering a crisis of legitimacy within the United States and any future incidences of torture by liberal states may well bring about a crisis of legitimacy in the international norm itself.

To be honest, I am not especially convinced by McKeown’s empirical findings on this particular case. First, he seems to build too much of his case for the impact of US norm violations on torture norm strength on the fact that the US public has been relatively apathetic about the behavior of its government. But it seems to me that the appropriate indicator is the reaction of the international community, since the torture norm’s effects are constitutive of identity among states, and primarily affect state-society relations when torture is practiced against a state’s own citizens (as opposed to foreigners). McKeown doesn’t have good indicators of international reactions to US violations, so other studies should follow up on that.

Second, I think that his discussion of the relationship between moral authority, norm violation and norm decline is fuzzy. He suggests that norms can tolerate violation (that is they are “counterfactually valid” to use Kratochwil’s terms) only when they are not violated by those actors with moral authority. But to the extent that norm-following behavior constitutes state identity (like, “civilized” v. “rogue” states) wouldn’t violations undermine a government’s moral authority as much as the norm itself, and if so wouldn’t the impact on the norm be little or none? At any rate, if he’s on to something here I’d want this presumed effect specified better and to see some evidence of which way the causal / constitutive arrows point otherwise these are just competing hypotheses.

Nonetheless the article is extremely rich with insights and ideas, some of them very counter-intuitive primarily because of the blinders of our theoretical boxes. For example, it’s conventional to think of the Bush Administration as simply a norm violator, but McKeown additionally treats the US under Bush/Cheney as a sort of “counter-normative entrepreneur”:

The tactics of the Bush Administration and their supporters have much in common with the transnational campaign to ban landmines, only in this case they have essentially re-framed a humanitarian issue as a security one to bring what I consider torture back within the purview of the state.

I have no idea how to assess this statement, but I love the freshness of it. McKeown is suggesting that norm regress is more damaging to a norm than mere violations. I’m not sure he’s shown that, but it’s certainly true that claiming a norm doesn’t or shouldn’t or no longer applies is a different act than violating and trying to deny it. And it makes me wonder whether human rights activists’ strategy of trying to force the Obama Administration to clarify its policy on arbitrary killing of terror suspects, for example, is not going to be a self-defeating strategy. Better that they pretend that’s not what they’re doing than openly claim the right to do it, if McKeown is right.

He still needs more data – more cases, clearer measures of relative norm strength – to show he’s right. However I think this article is a substantial contribution to the norms literature simply by drawing our attention to the subject of norm decline and proposing a set of empirically testable propositions. Norm decline is a promising research agenda for up and coming constructivist scholars.

The Security Council and Norm Creation

It’s easy to think of the Security Council as essentially a reflection of great power interests when we see outcomes such as the failure of a resolution calling for President Assad’s departure.

However I am re-reading Cora True-Frost‘s article on the other side of the Security Council this week, and thought I’d flag this article as an excellent example of scholarship about the power and politics of such international organizations as norm consumers / diffusers. In short, her work reminds us that the UNSC not only sometimes wields (through its members and procedures) institutional and coercive power, but (even when no action is take) it also wields significant productive power in global society.

True-Frost’s argument is really about norms, not institutions, but the paper details the Security Council’s role as a pivot in Marty Finnemore and Kathryn Sikkink’s “norm life cycle” argument. F/S argue that for norms to “cascade” they must be accepted by a wide variety of both states and international organizations. The argument dovetails with my work and that of Cliff Bob on the significance of institutional “superpowers” in specific issue areas “adopting” norms as a means of socializing states. For Cliff, these “gatekeepers” can be NGOs; I’ve found that depending on the issue area the most highly central organizations may also be international secretariats. In either case, for new ideas to proliferate through the fabric of global society they must be adopted and carried by a wide variety of international bureaucracies in the issue area associated with the new norm.

Finnemore and Sikkink do not develop a theory of how socialization of “network hubs” by norm-entrepreneurs works, and that’s where my new book picks up. I’ve been building on Cliff Bob’s gatekeeper model which sees hubs as agenda-vetters, but the language of True-Frost’s model is that organizations like the UNSC might be better understood as “norm consumers.” That is, they are inherently receptive to new ideas and have evolved over time to incorporate this agenda-carrying function into their mandate.

The examples she provides are the thematic resolutions on Threats to International Peace and Security (TIPS) resolutions, including those on protection of civilians, women peace and security, children and armed conflict, HIV-AIDS, peacekeeping and the like. These are human-security related resolutions that both set the agenda for specific issue areas and legitimize/reproduce the concept of human security within the Security Council architecture. These resolutions also result from a process that tends to be more open to advocacy networks and epistemic communities – the sorts of actors from which new ideas often percolate to the highest levels of international society.

For my project, what interests me is some of the theoretical distinctions she’s drawing (is she describing norm production or simply issue proliferation? I think there’s a difference) and her ideas about the nature of the relationship between the SC as an institution and other human security-minded entities through which ideas percolate before they take root in the discursive fabric of international society.

For Duck readers, this post is just a rambling reminder that in between thinking of the Security Council as a reflection of power politics and/or a failed and defunct institution in need of reform, we should remember its productive as well as institutional power. This power – including the power to legitimate the concept of human security – accounts for the fact that the UNSC now considered internal human rights violations as a threat to international peace and security worthy of a debate at all.

Robotic Planes: Harbinger of Robotic Weapons?


LA Times‘ latest article on drones raises the spectre of “robot weapons” in relations to the X-47B, Northrup Grumman’s new drone prototype with the ability to fly solo – part of an ongoing force restructuring as the US military cuts back significantly on human personnel.

While one might well ask whether a robotic plane (i.e. one that can fly autonomously) constitutes a robotic weapon if a human is in the loop for any targeting decisions, what’s notable about this narrative in press coverage is that the increasing autonomy of non-lethal systems is certainly being constructed as a harbinger of a slippery slope to a world of fully autonomous weapons systems (AWS). Anti-AWS campaigner Noel Sharkey is quoted in the article:

“Lethal actions should have a clear chain of accountability,” said Noel Sharkey, a computer scientist and robotics expert. “This is difficult with a robot weapon. The robot cannot be held accountable. So is it the commander who used it? The politician who authorized it? The military’s acquisition process? The manufacturer, for faulty equipment?”

And this is the first press coverage I’ve seen that invokes the evolving position of the ICRC on the topic:

“The deployment of such systems would reflect … a major qualitative change in the conduct of hostilities,” committee President Jakob Kellenberger said at a recent conference. “The capacity to discriminate, as required by [international humanitarian law], will depend entirely on the quality and variety of sensors and programming employed within the system.”

Indeed, ICRC President Jakob Kellenberger‘s keynote address during last year’s ICRC meeting on new weapons technologies in San Remo suggest that legal issues pertaining to autonomous weapons are indeed at least percolating on the organization’s internal agenda now, as opposed to previously. Thinking ahead to norm development in this area – the interest of a key player in the arms control regime signals an emerging trend in that direction – it’s worth having a look at the entire relevant text from that speech by Kellenberger:

Automated weapon systems – robots in common parlance – go a step further than remote-controlled systems. They are not remotely controlled but function in a self-contained and independent manner once deployed. Examples of such systems include automated sentry guns, sensor-fused munitions and certain anti-vehicle landmines. Although deployed by humans, such systems will independently verify or detect a particular type of target object and then fire or detonate. An automated sentry gun, for instance, may fire, or not, following voice verification of a potential intruder based on a password.

The central challenge with automated systems is to ensure that they are indeed capable of the level of discrimination required by IHL. The capacity to discriminate, as required by IHL, will depend entirely on the quality and variety of sensors and programming employed within the system. Up to now, it is unclear how such systems would differentiate a civilian from a combatant or a wounded or incapacitated combatant from an able combatant. Also, it is not clear how these weapons could assess the incidental loss of civilian lives, injury to civilians or damage to civilian objects, and comply with the principle of proportionality.

An even further step would consist in the deployment of autonomous weapon systems, that is weapon systems that can learn or adapt their functioning in response to changing circumstances. A truly autonomous system would have artificial intelligence that would have to be capable of implementing IHL. While there is considerable interest and funding for research in this area, such systems have not yet been weaponised. Their development represents a monumental programming challenge that may well prove impossible. The deployment of such systems would reflect a paradigm shift and a major qualitative change in the conduct of hostilities. It would also raise a range of fundamental legal, ethical and societal issues which need to be considered before such systems are developed or deployed. A robot could be programmed to behave more ethically and far more cautiously on the battlefield than a human being. But what if it is technically impossible to reliably program an autonomous weapon system so as to ensure that it functions in accordance with IHL under battlefield conditions?

When we discuss these new technologies, let us also look at their possible advantages in contributing to greater protection. Respect for the principles of distinction and proportionality means that certain precautions in attack, provided for in article 57 of Additional Protocol I, must be taken. This includes the obligation of an attacker to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental civilian casualties and damages. In certain cases cyber operations or the deployment of remote-controlled weapons or robots might cause fewer incidental civilian casualties and less incidental civilian damage compared to the use of conventional weapons. Greater precautions might also be feasible in practice, simply because these weapons are deployed from a safe distance, often with time to choose one’s target carefully and to choose the moment of attack in order to minimise civilian casualties and damage. It may be argued that in such circumstances this rule would require that a commander consider whether he or she can achieve the same military advantage by using such means and methods of warfare, if practicable.

Three initial reactions, more later as I follow this issue for my book-manuscript-in-progress this Spring:

First, a distinction is being drawn in the legal discourse between “automated” and “autonomous” weapons, suggesting to me that the ICRC sees a soft and hard line here, one that is being obscured in the media and popular discourse. How this will play out in an efforts to apply humanitarian law to these new systems will be interesting to see.

Second, Kellenberger acknowledges the counter-claim that autonomous systems might have advantages from a war law perspective (this argument being put forth most famously by Georgia Tech’s Ronald Arkin). This suggests that the ICRC is far from taking a stance on whether or not these weapons should be pre-emptively banned, as some claim, and as blinding lasers were previously. Instead they are still listening and observing. It will be interesting to see how this debate develops among humanitarian law elites.

Third, I’m glad to see Kellenberger focusing on the question of discrimination, but it should be pointed out that the concept of discrimination in IHL is more than simply about whether distinction between civilians and combatants is possible, but also whether a system is controllable by humans once deployed – whether its effects can be limited. Anti-AWS advocates are certainly making the case that they may not be, and existing humanitarian law provides them some legal leverage to develop that argument if they choose – even if it is shown that such weapons are highly discriminate.

RIP: Habeas Corpus . . . and Normative Power

The news that President Obama plans to sign the National Defense Authorization Act (NDAA) permitting indefinite detention for Americans accused of supporting terrorism is a sad day for those who believe in basic civil and human rights. Equally, this move calls into question optimistic views about international norms and the power of human rights.

Glenn Greenwald and others cover the threat to basic freedoms in posts that are well worth reading. By comparison, the import for scholars of norms may seem minor but is nonetheless worth pondering.

Norms against indefinite detention have long been basic to human rights, along with prohibitions on torture and extrajudicial execution. Of course, we’ve seen those fall by the wayside too. National security, a norm backed by enormous material power, has made its dominance plain. However, in recent cases where the U.S. has engaged in torture or extrajudicial executions of American citizens, these actions have been purely executive, albeit with many a legislative, scholarly, and public cheerleader.

The NDAA, however, enshrines indefinite detention for American citizens in law passed by Congress and to be signed by the President. The magical incantation “terrorist” is all that’s been needed to throttle a core rights protection.

What has been the power of norms in this case?

It’s doubtless true that the human rights norms I’ve mentioned have more defenders than they once did. There are today many more NGOs who promote and support them than there were in the 1950s, the last time the U.S. passed similar laws (against the Communist menace, only to reverse them decades later after severe abuses). Today, there have been many voices, both domestic and international, raised against the indefinite detention provisions.

But in the end, these fell before trumped up security norms and terror fears. Many Americans appear all too willing to trade basic rights (and trillions of dollars) for an illusion of security against a minuscule threat. I am continually stunned when I hear American citizens saying we don’t need a judiciary to check the Executive in these cases because the President has sworn an oath to uphold the Constitution. So much for the judicial branch, so much for checks and balances, and so much for the power of centuries old domestic norms and laws.

Particularly striking in the debate over detention and the broader one over Obama’s civil liberties record is political opportunism. Many Democratic Party leaders who screamed that George Bush was acting unconstitutionally and illegally in the early years of the GWOT, have now fallen into line behind Obama’s continuation and expansion of Bush policies, including extrajudicial executions and now summary arrests. It’s striking too that we have seen so few resignations from top posts in the Obama administration even from those regarded as staunch defenders of basic rights. So much for the independent influence of norms.

More broadly, this suggests that other human rights norms are equally fragile and contingent achievements, with little if any independent strength. Of course, anyone witnessing the erosion of these rights over the last decade already knew that. All such norms exist at sufferance of state actors. To the extent states follow them, it is because the “norms” do not run contrary to their core interests, because a sufficiently large threat has not been invented to justify their subversion, or because the states are too weak to challenge them. Any real belief in state “habitualization” and the power of norms as such must be questioned.

Don’t get me wrong. I think it is important to promote and resurrect the crucial values and freedoms we have lost. But the only way to do so is through political organizing and activism–through material rather than normative means.

Cutting Edge Research on Popular Views of War Law

My Rules of War class this past Spring was an Honors version of the course, and to challenge my students I asked them to do original research on popular conceptions of international humanitarian law, an issue the International Committee of the Red Cross takes quite seriously. The assignment was to identify a concept in the rules of war, gain a firm understanding of the law, then identify a set of data on how people see those rules, and use content analytic or discourse analytic coding methods to study how far apart the representations of the law in text are from the rules as understood or represented in reality, and in which respects. It was a tough assignment!

The students were at liberty to choose any kind of text data they wanted. Some chose blog posts. Some chose news articles. Some studied internal DoD memos to try to understand the narratives of policymakers as they tried to implement the rules of war. One scoured the Star Wars Trilogy screenplays for evidence of inaccurate portrayals of just warrior-hood (see below). All were required to attend a coding workshop, explain their methods and their findings, and draw inferences about the dissemination of humanitarian law to the public, media and policymakers.

Having graded many an undergraduate paper in my day, I was mightily impressed by the quality of the papers I saw and the amount of effort and detail many of these students put into their projects. Below the fold are short descriptions of the five best papers in the class, with accompanying visualizations. Working papers are linked below.

Dan Glaun snagged a summer research assistantship with me for this paper, in which he explores how news coverage of the Geneva Conventions themselves has changed since 9/11, in the context of agenda-setting theory. Dan tracks an increase in the overall salience of war law reportage in the US press, a shift in the referent point of the articles, and a corresponding change in the accuracy, precision and normative bent of the news coverage compared to war crimes reporting in the 1990s:

“In the two years preceding 9/11, there was not a single story which misrepresented the Conventions. However, only 11% of the stories were precise as well as accurate. The pre-9/11 newspaper reports tended to engage in generalities about civilian protection and war crimes, rather than citing specific sections of the Conventions or quoting significant excerpts from the texts. Post 9/11, however, the profile of accuracy and precision changed significantly. Accuracy declined from 100 to 65 percent, indicating an increase in media misrepresentation of the Conventions. Simultaneously, precision increased from 11 to 54%, including both accurate representations and specific, precise claims which were in actuality false. Among accurate articles post 9/11, 58% were precise and 42% vague. For inaccurate articles, 44% were precise and 56% vague. This demonstrates an acrossthe-board decrease in accuracy following 9/11. It also shows a universal increase in precision, both in accurate and inaccurate accounts.”

Christine Donovan examined jus ad bellum justifications for the Iraq war in not only press coverage but also US and British political speeches and statements. Christine examined both newspaper articles and political speeches for both countries and coded them not only according to how accurate, vague or misleading they were but also for what type of war law arguments were used to sell the war. She found that overall both press coverage and political rhetoric in the US was less misleading than in Britain (and also relied less on arguments grounded in humanitarian law, such as Hussein’s treatment of civilians). She also found that the media and the public were far more interested in international law aspects of the invasion than the politicians were in making international law arguments:

“While the positive interpretation of UNSCR 1441 (as well as 678 and 687) appeared to have been the soundest legal argument for the United States and the United Kingdom to make, it was not the main focus of political rhetoric. This may have stemmed from the belief that, perhaps, complicated legal arguments would not resonate with ordinary people as much as weapons of mass destruction or human rights violations would. However, the strong focus on international law found in the selection of newspaper articles, especially those later on in the war effort for the United States and consistently in the United Kingdom, suggest that the public cares more about international law and the legality of the invasion than originally assumed. Perhaps United States and United Kingdom officials made an error by not presenting this legal reasoning to the public in depth, as it might have improved public opinion.”

Wes Mason, who also worked with me on my Battlestar Tweet project, examined how well bloggers understood the law on cultural property as applied to both Iraq and Egypt. He finds some variation between Egypt and Iraq (discussed at more length) but also some general conclusions:

“My analysis shows that bloggers do not use particularly nuanced understandings of international law to make arguments about protecting cultural property in armed conflict, that they are far more likely to reference the Hague Regime than the Geneva Regime, and that they are even more likely to reference other laws outside the aforementioned regimes specific ally concerned with preventing the trafficking rather the destruction of cultural property.”


Sarah Wesley coded a random sample of 200 articles from the NYTimes, Al-Jazeera, WSJ and Huffington Post to explore to what extent the term ‘enemy combatant’ has come to be used interchangeably with ‘detainee.’ She found that the answer depended somewhat on the source – with Al-Jazeera six times more likely than the NYTimes to use the terms interchangeably, but also more likely to put the term ‘enemy combatant’ in quote marks when used, and far less likely to use it overall:

“On average, newspapers recognize there is a clear distinction between the terms ‘enemy combatant’ and ‘detainee’ and/or ‘prisoner of war.’ However interestingly, these news outlet did not often understand the differences between the terms.”

And last but not least, without doubt the juiciest paper of the entire lot was Shawheen Saffari‘s analysis of the Star Wars Trilogy, in which he finds a significant gap between portrayals of just conduct by the rebels and the standards of conduct required of actual rebels under humanitarian law circa 1977 and after:

“My analysis shows that the Rebels in Star Wars abide to war law in some cases but not all, including certain tactics that would be considered grave violations. While Rebels would generally follow law dictating accepted uniform and bearing of arms, the Rebels would frequently harm civilians in the majority interactions as well as show disregard towards civilian property that would be deemed culturally or religiously significant, violations specifically of Articles 13 and 16 of the AP II.”

Quick: how many war law violations can you find in this clip?


Bataille d'Endor Attaque des Ewoks VO by yan_solo2010

Bombs. Away.

I will be a attending a workshop at Cornell University on bombing norms for the next few days. (Presumably after I get back, I’ll never again bomb anything I’m not supposed to.)

On this note, readers may be interested to have a look at this new memorandum Stephanie mentioned from Human Rights Watch on incendiary weapons, which follows up on an earlier report by HRW’s Arms Division. The campaign I’ve been tracking for the paper I’m presenting is on a slightly different problem, “explosive weapons,” (their latest report is here) but I’m happy that HRW is outlining the specific issues with incendiaries as they are mentioned in humanitarian law but with so many loopholes that there is essentially no stigma against using them thus far:

Protocol III allows ongoing use of incendiary munitions in ways harmful to civilians due to definitional loopholes and narrow regulations. Its definition, which looks only at the primary design of a munition, fails to cover some incendiary munitions, such as white phosphorus, that are not “primarily designed” as weapons yet cause unacceptable civilian harm. In addition, the protocol’s key regulations apply only to use in populated areas and are weaker for ground-launched than for air-dropped models.[2]

Regardless of their type, targeting, and delivery mechanism, however, incendiary munitions cause cruel and lasting injury to people as well as start fires that can destroy property. The munitions produce exceptionally painful thermal and respiratory burns, which can lead to complications such as shock, infection, and asphyxiation. People who survive often suffer long-term physical and psychological damage.

A question I’m now thinking about is whether the two separate campaigns – against explosives and against incendiaries – will complement or work against one another. Each opposes a different type of weapon and a different type of humanitarian harm. Each is drawing support from slightly different transnational networks (see here and here). But there’s a lot of overlap. My research on the weapons campaigns suggests that either campaign needs champions within either HRW or the ICRC in order to gain sway, and of the two incendiaries clearly have that. At the same time, the “explosive violence” campaign may be able to piggy-back on these efforts.

Readers’ thoughts welcomed. More insights as mine develop over the next few days.

[cross-posted at Lawyers, Guns and Money]

The Limits and Future of R2P

Small Wars Journal published a longer version of my argument about the criteria associated with the R2P doctrine and why the “If Libya Why Not Bahrain” argument is specious.

However, particularly in light of evolving events, I think it’s important to qualify this argument by emphasizing that I’m describing an existing (and limited) set of standards, not necessarily endorsing it as currently constituted. In fact it would surprise me if Operation Odyssey Dawn does not result in some slightly revisited normative understandings regarding R2P, and indeed perhaps it should. (The rest of this is a thinking aloud post, so please take my ruminations in that context.)

Based on what we are seeing now – both decisions by policymakers and reactions to them by various audiences (in particular, the “If Libya Why Not Bahrain” argument remains as salient as ever) – it seems to me that the perceived legitimacy of humanitarian interventions might ultimately be understood as contingent not only on the behavior of the repressive regime in question, but also on the behavior of their adversaries. This may be inconsistent with the doctrine as previously articulated, but that doesn’t change the fact that the argument seems to carry significant weight.

A piece of this argument bears close consideration, in fact. In short, should the “just cause” threshold for evaluating the relative merit of interventions be related solely to the gravity of the atrocities averted? Or should it also be related to the question of whether or not the civil society in question are represented by peaceful, non-violent protesters? Currently “just cause” is understood in the R2P doctrine only as the former. But there seems to be considerable support for the idea that Bahrainis, Yemenis and Syrians have at least as great a claim to international military assistance, precisely because they are protesting peacefully, than the Libyans, who are represented by rebels who very quickly chose a military approach.

Does this make sense? I don’t know the normative answer to this question. In legal terms, the civilians whose lives are being saved are equivalent in both cases – they’re the people who are unarmed and at risk in either scenario. (It’s not a war crime for Qaddafi to target the rebels, only the civilian-populated areas.) On the other hand in practical terms favoring intervention in cases where armed rebels have provoked a particularly bloody crackdown suggests rewarding opposition groups for violence rather than non-violence – even more so if the intervention then expands from civilian protection to actively arming the opposition. (Though according to Josh Rogin we may be drawing the wrong conclusions from recent revelations.) The lesson for protesters in other Middle East countries is probably this: if you want military help from outside, take up arms and provoke a crackdown.

Certainly that strategy worked for the Kosovar Albanians, whose peaceful leadership un Ibrahim Rugova’s Democratic League of Kosovo was sold out at the Dayton Accords, but who had far better success attracting international support once the DLK’s successor, the Kosovo Liberation Army, was able to provoke a crackdown from Belgrade with terror attacks starting in 1996. Critics of the 1999 air war have sometimes pointed out that had the West supported the peaceful pro-democracy movement in the first place, there would have been no need for an intervention in 1999.

On the other hand, if the R2P doctrine were updated with a requirement that the people being saved use only non-violent means in the face of violent repression, I think there are ethical and practical implications. The ethical implication is that it’s somewhat unfair – given that dissidents in a given country cannot count on international forces in every case and therefore are in a situation of self-help. Resolving this dilemma in favor of greater consistency would probably legitimize more interventions rather than fewer, and given that the R2P norm conflicts with another very important norm that saves a lot of lives, it’s not clear that’s a good thing.

All that aside, I wonder if in fact this is the lesson that international norm-makers will draw from the outcome of this debate. And I wonder what readers think about that as a prediction, as well as what you think about it as a normative proposition?

[cross-posted at Lawyers, Guns and Money]

Libya and the Responsibility to Protect

I see there’s some naysaying about the use of force to protect civilians in Libya. Among various refrains is the claim that “Responsibility to Protect” (R2P) doctrine lacks moral strength if applied selectively: the
international community can’t legitimately go after Qaddafi if it won’t/can’t also go after every other dictator.

So just a reminder that the doctrine, as laid out by the International Commission on Intervention and State Sovereignty and acknowledged as a legal principle in several multilateral documents, actually promotes military force for civilian protection not in every case where it might be merited, but rather only in limited circumstances mapping roughly onto just war theory.

The criteria include just cause (which I agree would be fulfilled in a case like North Korea or Bahrain) but also right authority (which in R2P requires multilateral consent – not feasible in Bahrain) and proportionality (requiring a judgment that the overall good to civilians outweigh the potential harm – unlikely in North Korea). In cases not meeting this threshold, the doctrine urges merely non-coercive protection measures, including humanitarian assistance and diplomacy.

In fact one of the key critiques of R2P is that the threshold for the use of force – which is in some cases the only effective response to unfolding crimes against humanity – is so unreasonably high as to render the doctrine useless for the cases in which it is most needed. So it was actually reassuring to see the international community act so relatively swiftly in the case of Libya, in contrast to its months and years of dithering in Kosovo and Bosnia, respectively, or its ultimate inaction in the case of Darfur. R2P as currently constituted includes no normative requirement of consistency.

Now whether or not the intervention was caused or facilitated by the R2P norm itself, that’s another question. Erik Voeten thinks not and is not even sure there is such a norm. My students will be writing their mid-term over it this week, and we’ll see what they come up with.

[cross-posted at Lawyers, Guns and Money]

No Nukes: Arms Division

In February, Bill Clinton’s second Secretary of Defense, William Perry, spoke at Harvard’s Belfer Center and continued his ongoing campaign against nuclear weapons. With former Secretaries of State George Shultz and Henry Kissinger and former Senator Sam Nunn, Perry has for many years been seeking a “world free of nuclear weapons.

After describing his personal experience working behind the scenes during the Cuban Missile Crisis, Perry recounted another nuclear scare:

16 years later, when he was Under Secretary of Defense for Research and Engineering. He was awakened at 3 a.m. by a phone call from the watch officer at North American Aerospace Defense Command.

“The general got right to the point, telling me that his computers were indicating 200 missiles were on the way from the Soviet Union to the United States. I immediately woke up, “ Perry said. “The computer alert of course was a false alarm. The general was calling me in the hopes that I might help him help him figure out what the hell had gone wrong with his computers so that he’d have something to tell the president the next morning.”

Perry said that was one of three false alarms he knows of in which Soviet missiles were thought to be screaming toward the United States, “and I don’t know how many more might have occurred in the Soviet Union.”

“So I had a close personal experience with the possibility of a nuclear catastrophe that could have resulted in no less than the end of civilization,” Perry said. “And to this day, I believe that we avoided nuclear catastrophe as much by good luck as by good management.”

In other words, Perry does not apparently believe that nuclear deterrence had much to do with the “long peace” of the cold war.

I’ve previously blogged about my academic work in this area. In my view, these former US officials are acting as norm entrepreneurs, contesting the norm of nuclear deterrence by calling for nuclear disarmament. Perry’s Harvard address specifically asks if “we” have “reached the nuclear tipping point.”

That’s norm life cycle-talk 101.

Norms Are What Analysts Make of Them…? And Other Thoughts About Targeting Killings, Sieges, and War Law Development

Professor Michael Gross left a lengthy response at Current Intelligence to my remarks about his characterization of asymmetric war. I’m afraid he seems displeased with me:

Far superior to faint praise, it is still annoying when reviewers pick out controversial arguments but leave the impression that the author did not address them.

Oh dear. It’s true that, in my effort at brevity, I did give short shrift to many of the overarching strengths of the book: its breadth, up-to-date-ness, and unique and timely case studies on non-lethal weapons, assassination, the right to self-defense of national liberation movements and humanitarian intervention among others. But then again, this wasn’t a book review, just a brief response to a specific set of points Gross makes. My other essay referencing his book responds to a different set of equally specific points, and should be read as such. Neither is or is intended to define or respond to the entire book, which is a broad overview of dilemmas states and irregulars face in winning wars against one another. (If you want to read such a review however, here’s one. Professor Gross is also apparently writing an equivalent treatise on the moral dilemmas faced by irregulars, which I eagerly anticipate.)

At any rate, Gross goes on to engage the comments I did make at some length, for which I’m grateful. As one good turn deserves another, let me discuss some of his remarks and also try to clarify where I see the differences in our opinions – which are not so far apart really (we both care about war law and about protecting noncombatants) but which do differ somewhat on analytical, ethical and programmatic grounds.

First, I think a key difference in our thinking which is demonstrated in Gross’ response to my essay hinges on our use of the term “norms.” I tend to follow Jepperson, Katzenstein and Wendt in writing about ethical norms in a descriptive sense, as empirically identifiable “collective understandings about the proper behavior of actors with a specific identity.” I teach my students in Rules of War that analyzing the origins, extent and impact of norms as understood by political actors is very different from doing “normative theory” – that is, drawing on philosophical principles to make arguments about how states should behave.

But Gross uses the term to both describe norms and to make ethical arguments, often interchangeably. Consider, for example, the following:

Assassination (Chapter 5) was long reviled but took on new life in the 21st century to wage war against militants entrenched among civilians. Initially condemned as extra-judicial execution (by this writer among others), targeted killing has emerged as an effective means to disable non-uniformed combatants while sparing civilians many of the horrors of full-scale battle. Today, the debate turns on improving effectiveness and curtailing collateral harm. Virtually no one questions the morality of fingering combatants for killing. Yet this was the crux of a norm that stood fast since the American Civil War.

It should also be clear then that some practices can never evolve into acceptable norms of military conduct. This is true of disproportionate force, the so called “Dahiya” doctrine named after the Beirut neighborhood that was pulverized in a fruitless attempt to destroy Hezbollah’s command headquarters during the Second Lebanon War.

In the first sentence of the first paragraph, Gross describes the varying extent and strength of the anti-assassination norm and how it changed over time, an argument also made by Ward Thomas. He also argues that the norm has been eroded by current state practice and that this is reflected in the absence of concern over targeted killings. (This latter is an empirical statement and in theory empirically falsifiable, as I’ll show in a moment.)

In the second paragraph though, Gross is making a normative claim (as opposed to a descriptive claim about norms). He is arguing that there are standards that should not be crossed. At least he must be, because it’s certainly not the case that standards can’t be crossed in political reality: in fact many behaviors we today consider immoral were once perfectly acceptable.

This perhaps explains why I have more faith in existing international norms than Gross appears to have. Distinguishing between my own opinion of what they should look like and my understanding of what actors in the world actually think on these matters enables me to avoid my normative preferences with the way the world actually works.

For example, I am fairly certain Gross is empirically wrong about targeted killing. First of all, the fact that it’s considered effective doesn’t mean it’s considered normatively valid. Second, the fact that it is being practiced doesn’t necessarily undermine the anti-assassination norm unless you assume that targeted killing is assassination. (Actually, a far more nuanced argument on targeted kiling is developed by JW Fisher, who distinguished targeted killing from assassination on legal grounds and points out that targeted killing actually squares normatively with the anti-assassination norm, not challenging it, insofar as it is also designed to maintain/restore Westphalian order.) But most importantly, it is certainly not the case that targeted killing is uncontested. In fact it is so enormously controversial that the United Nations Special Rapporteur on Summary Executions has condemned the practice. Human Rights Watch has expressed grave concerns about the lack of transparency with respect to targeting decisions, making it impossible to evaluate the legality of such killings. There is simply no evidence of an international consensus that such actions are lawful. Whether I or Gross believes they should be considered lawful is entirely beside the point in terms of social scientific analysis.

The second way in which Gross and I differ – though only slightly – is on ethical grounds. (I say slightly because we largely agree on the big points: war law matters, the protection of noncombatants is important and trickier than it has to be, norm development is needed, strengthening of humanitarian principles is a good thing, the general neglect of the duties – and rights – of irregulars has been part of the problem.) Still, we are in disagreement about the ethics of specific solutions to these problems. Consider the following statement:

Are indirect participants off the hook or, as I suggest, do they bear some measure of responsibility for war and aggression? And, if liable, what is to be done with them? Here I make a modest suggestion: incapacitation. This means rendering infrastructures inoperable, apprehending civilian participants and restricting their movement through curfew, siege or incarceration. This limits freedom of movement but respects their right to protection from harm during war.

Perhaps so, and some readers may be in closer agreement with Gross than I on this point. But if nothing else an examination of the long-term effects of siege and incarceration on civilians does not necessarily “protect them from harm.” (It may protect them from death by explosives, but not from death by exposure, preventable disease or malnutrition; or from the psychological harms of captivity and separation from loved ones). Moreover this idea skirts the question of how to distinguish “indirect participants” from non-participants, all of whom would presumably be affected by measures such as siege, only pushing the distinction question down one layer of ethical complexity.

But the final and probably most important set of differences between us, which I elaborate here, is that Gross seems to argue that the natural and proper mechanism for “norm development” is mere state practice. The proposal above, for example, is for a change in state military doctrine. The evidence he provides for “norm change” in his book is the fact that certain states, especially the US and Israel, have changed their practices.

I view norm developments as distinct from and often taking place as a reaction to shifting state practice. They are the result of multilateral discussions among states, often the result of a longer period of normative dialogue within the wider global civil society, and you know these developments both by the nature of those conversations and the ways that states account for what they do and respond to what others do.

Ultimately Gross and I are asking the same big question: how can states further shrink the impact of war on civilians without losing wars to irregular fighters who themselves threaten civilian life? And many of the same smaller questions: what should direct participation mean in a transnational war? What is the proper metric for tallying the civilian dead and weighing them against military necessity? What obligations do governments owe the lawful yet innocent victims of war?

But where Gross’ answer is to propose specific doctrinal recipes for warring governments, my answer is simply: states need to develop an enforceable consensus on what the answers should be through multilateral dialogue and participation of global civil society organizations (not unilateral re-interpretation of the norms).

Norms and War

I have an essay online at Current Intelligence on Michael Gross’s recent book. Moral Dilemmas of Modern Warfare explores the ways in which “new wars” are challenging the existing law of armed conflict.

I’ll have more to say about his proposals in a forthcoming Foreign Affairs essay, but in this piece I focus on his characterizations of “asymmetric war” and on his notions of “norm change.” I think the asymmetries to which he refers may be more apparent than real, and the norm “shifts” he describes – like the breakdown of respect for the civilian/combatant divide – are actually patterns of norm violations.

Gross’ typology of “asymmetry” – material, legal and moral – as an explanation for war law violations is highly useful analytically. But as a description of what is new about war it holds up poorly. Material asymmetries between belligerents have always existed – both among states and between states and their many colonial, tribal or insurgent adversaries throughout history.

Neither is legal asymmetry anything new. In fact, war law was designed in part to distinguish ‘lawful’ from ‘unlawful’ combatancy, as nineteenth century European governments sought to privilege professional armies over nationalist insurgencies in territories under their control. And certainly, moral asymmetry has always been a feature of war. Combatants differ in the justice of their causes and of their means: guerillas, terrorists and even (at times) states have always sought to exploit the ambiguity between civilian and combatant.

In many ways, war law has in fact adapted already to these distinctions over time. It already recognizes, for example, a central insight that Gross articulates: that the appropriate distinction between civilian and combatant is not moral innocence but rather whether or not they are directly participating in hostilities. This is because indirect civilian participation in war is nothing new…

Indeed, the real logic of Gross’s analysis rests on a feature of contemporary war he under-theorizes: advances in technology, particularly aerial munitions. Indeed, many of the moral dilemmas he describes are based on the availability of air power to one (but not both) sides in such conflicts, and to the widespread assumption that it must be used as a tool to defeat the enemy. Such technological advances (along with other developments in non-lethal technology) exert two game-changing effects on modern battle-spaces, one practical and one normative. In practical terms, they alter the types of injury that can be done to civilians, particularly increasing the scale of indirect harm due to damaged infrastructure. But secondly, the availability of air-delivered explosives has contributed to casualty aversion in democracies, affecting nations’ willingness to expend military blood to achieve military objectives…

…But Gross’s suggestions that these and other political trends prove international norms are changing may be over-reaching. Much of what he documents – like the emerging practice of treating “associated civilian targets” as military objectives – is a set of deviations from international norms by states seeking to pursue their interests outside the bounds of the law. What this shows is not that “new norms” are taking shape, but that the existing norms need greater clarity and sharper teeth in order to shift the moral calculus of justifiably self-serving actors.

You can read the entire essay here.

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.

****

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.

****

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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