-
In
Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war
—to cite the Latin phrase still current,
jus in bello—Congress intended courts to look to that body of law in interpreting the statutory terms.
In considering whether the AUMF allows strikes against Somalia, the pertinent international laws concern not the conduct of war but the act of going to war; that is
, jus ad bellum. Since the adoption of the
U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the
U.N. Security Council. The charter permits only one exception, set forth in Article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow—"if an armed attack occurs"—mean that the attack already must have occurred, and if so, do the attacks of Sept. 11, 2001, attributed to an al-Qaida leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly seven years after that other attack?
Let's assume, in the alternative, that the United States may attack before it is attacked to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot first and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the
Caroline incident between the United States and Britain.
Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the
Caroline dispute indicate conditions upon this right
—conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of
reprisal, as our colleague, Notre Dame Law Professor
Mary Ellen O'Connell, explains
here. Within those two terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.
The U.S. Congress ought to be presumed to understand these well-settled principles—principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate"—words nearly identical to the international law doctrine's "necessity" and "proportionate"—ought to be understood as limiting post-9/11 use of force to that which meets these requirements.
-
Well, Phil, two days out from the latest account of another U.S. missile strike in Somalia, and judging from the relative silence on the blogs, I take it pretty much everyone agrees with you that the president's authority for the strike falls within the "necessary and appropriate" force Congress intended in its September 2001 authorization to use military force (AUMF) against al-Qaida. Indeed, I'd bet that's what a U.S. court would have to say about it in the unlikely event it ever came up, even if it turned out this guy turned out not to be associated with al-Qaida after all. Not necessarily a happy picture, but I'm guessing where things stand under the current state of domestic law.
But that should hardly be the end of the discussion. Whatever force is "necessary and appropriate" is a troublingly vague notion for understanding the limits on what kind of power Congress actually wanted to delegate the president in a global campaign against the people, organizations, or groups who aided the attacks of 9/11. Most folks seemed to think the AUMF didn't extend to giving the president the authority to engage in domestic wiretapping without a warrant (contrary to the administration's suggestion). The Supreme Court bought that the AUMF did extend to cover some U.S. detention operations, at least to detain those picked up by U.S. military on the battlefield in Afghanistan. But until Congress gets a bit more specific, I'm guessing we'll be having this debate for a while (with the executive's position getting weaker the farther in time we get from 9/11).
In any case, the legality of the strike under the AUMF is only part of the question. There's also the pesky issue of whether it's a law-of-war problem to target an individual who, at the moment of attack at least, appears to have been minding his own business, far from any traditional field of "armed conflict." If we find out someone's been contributing money to an organization that turns out to be affiliated with an organization we've identified as terrorist, could we bomb them in their sleep at anytime, anywhere they are in the world? I've no beef with those who say concepts like "armed conflict" and "direct participation in hostilities" aren't the most clearly defined aspects of the law of war. But even if we give the administration the benefit of the doubt as operating within the "necessary and proper" boundaries of congressional authorization under U.S. law, what exactly is the limiting principle they have in mind under the law of war? And to take it a final step, if it's not quite legal under the law of war, can it really be part of the "appropriate" force Congress had in mind? At least some on the Supreme Court have recognized in recent cases that this kind of international law can and should inform the interpretation of statutory mandates in the area.
Marty, Diane—any enlightenment to shed?
-
A predawn American cruise-missile strike against the central Somalia town of Dhusamareb killed between 10 and 30 persons today. Military officials said publicly that the target was "a known al-Qaida target." Confidentially, military officials told the New York Times that the target was Aden Hashi Ayro, reportedly one of al-Qaida's top operatives in Africa and the leader of an Islamist group in Somalia called the Shebab.
On a listserv this morning, one expert on armed conflict and international law questioned whether this strike portended yet another broadening September 2001 "authorization for the use of military force." I think it does, and I'm at a loss to articulate any limiting principle on the geographic, spatial, temporal, or political scope of this nation's military efforts against al-Qaida.
I'm hardly the first to say it, but this highlights an important contrast between wars against states and wars against entities like al-Qaida. With the former, there is a limiting principle on the conflict. If the state ceases to be (such as Germany or Japan at the end of WWII), the war does, too. With the latter, there seems to be no limit. As al-Qaida evolves, morphs, grows, and franchises itself, so does the war, and so does any authorization for the use of force that is tied to the definition of al-Qaida.
Join the Fray: our reader discussion forum
What did you think of this article?