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No Thank You to a Radical Rewrite of the Jus ad Bellum

Published online by Cambridge University Press:  20 January 2017

Gabor Rona  and
Raha Wala
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Extract

Just as a newspaper must separate its reporting from its editorials, legal scholarship must distinguish between representations of what the law is and what the author might like it to be. Daniel Bethlehem’s proposed principles and his arguments in support of them are an amalgam of the two that, if actualized under international law, would reverse more than a century of humanitarian and human rights progress: they would undermine the general prohibition against the use of force in international relations as well as the right to life and the scope of a state’s obligation of due process in the deprivation of life.

Type
Notes and Comments
Information
American Journal of International Law , Volume 107 , Issue 2 , April 2013 , pp. 386 - 390
Copyright
Copyright © American Society of International Law 2013

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References

* Gabor Rona is the International Legal Director of Human Rights First. Raha Wala is a Senior Counsel of Human Rights First.

1 Bethlehem, Daniel, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AJIL 769, 775–77 (2012)CrossRefGoogle Scholar (listing and describing Bethlehem’s sixteen principles).

2 UN Charter Art. 51.

3 Geneva Convention [III] Relative to the Treatment of Prisoners of War, Art. 2, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (emphasis added).

4 see Pejic, Jelena, The Protective Scope of Common Article 3: More Than Meets the Eye, 93 Int’l Rev. Red Cross 3 (2011)Google Scholar, available at http://www.icrc.org/eng/assets/files/review/2011/irrc-881-pejic.pdf (describing the state of customary and treaty law on the threshold requirements pertaining to noninternational armed conflict).

5 see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, Art. 13, June 8, 1977, 1125 UNTS 609; Nils Melzer, Interpretive Guidance on the Notion of Direct Participation In Hostilities Under International Humanitarian Law 27–36 (2009) (International Committee of the Red Cross study), available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf [hereinafter ICRC Study] (explaining that for purposes of non international armed conflicts, membership in the enemy’s armed forces must be determined by whether the individual in question served a continuous combat function in an organized armed group).

6 Melzer, supra note 5, at 77–82.

7 We construe the term imminent, in its commonly understood sense, to include a close temporal nexus between threat and harm, and not as elasticized in, for example, the recently leaked U.S. Department of Justice, Office of Legal Counsel white paper on the subject, which dispenses with any such nexus. see http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

8 Eighth United Nations Congress on Crime Prevention and Criminal Justice, UN Basic Principles on the Use of Force and Firearms by Law Enforcement, UNDoc. A/CONF.144/28/Rev.1,at 112 (1990) (noting that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”).

9 We recognize that the inquiries are not completely analytically distinct. For example, whether attacks emanate from groups versus individuals, or state versus nonstate actors, may have some bearing on an Article 51 analysis.

10 Bethlehem, supra note 1, at 775, princ. 7 (emphasis added).

11 Id., princ. 4.

12 Id., princ. 5 (footnotes omitted).

13 Id., princ. 6 (footnote omitted) (emphasis added).

14 Id., n.c.

15 See, e.g., Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2717–31 (2010) (holding that individuals who provide human rights and international law advocacy in coordination with designated terrorist organizations can be said to be providing unlawful “material support” to such organizations).

16 see ICRC Study, supra note 5, at 46–64.

17 Note that here we do not speak of status-based targeting, and Bethlehem does not claim to draw from such sources of jus in bello.

18 Bethlehem, supra note 1, at 777, princs. 14–16.

19 see Geoffrey S. Corn, Self-Defense Targeting: Blurring the Line Between the Jus ad Bellum and the Jus in Bello, 88 U.S. Naval War college international law studies series 57 (Kenneth watkin & Andrew J.Norris eds., 2012), available at http://www.usnwc.edu/getattachment/49819df1-6a3f-41f3-b3cd-5dabee41fffa/Self-defense-Targeting--Blurring-the-Line-between-.aspx; Deborah Pearlstein, CIA General Counsel Speech on Hypothetical Uses of Force, Opinio Juris, Apr. 11, 2012, at http://opiniojuris.org/2012/04/11/cia-general-counsel-speech-on-hypothetical-uses-of-force.

20 E.g., O’Connell, Mary Ellen,Dangerous Departures, 107 AJIL 380, 380, 383–84(2013)CrossRefGoogle Scholar; Wilmshurst, Elizabeth & Wood, Michael, Self-Defense Against Nonstate Actors: Reflections on the “Bethlehem Principles,” 107 AJIL 390, 393–95 (2013)CrossRefGoogle Scholar.

21 Memorandum from Alberto Gonzales, White House Counsel, to President George W. Bush, Decision reapplication of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban, at 2 (Jan. 25, 2002), available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf.