Honduras institutes ICJ proceedings against Brazil

This article originally appeared in the online digest of the Harvard International Law Journal.

The interim government of Honduras has filed a complaint against Brazil in the International Court of Justice (ICJ), the Court announced on October 29. The complaint arises from events surrounding the surprise return to Honduras of Manuel Zelaya, the deposed president, who entered the country on September 21 and took refuge in the Brazilian Embassy in Tegucigalpa. Specifically, Honduras charges that Mr. Zelaya and an unknown number of other Honduran citizens have been using the Embassy as a “platform for political propaganda” with the complicity of Embassy staff and thereby “threatening the peace and internal public order of Honduras.” Honduras has requested declaratory and injunctive relief from the ICJ.

The legal bases of Honduras’s complaint are Article 2 (7) of the UN Charter, which reserves to member states matters which are “essentially within [their] domestic jurisdiction,” and the 1961 Vienna Convention on Diplomatic Relations. As a practical matter, Honduras’s complaint is only one element of a broader political and diplomatic offensive aimed at preventing Mr. Zelaya from returning to power before the upcoming presidential elections scheduled for November 29. It is unclear whether the ICJ will agree to hear the complaint, which was filed by an interim administration that many international observers consider illegitimate. Current efforts toward national reconciliation may also determine whether the case goes forward.

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Demise of American grand strategy

I'd like to point out that I haven't been linking to NYT as much now that I started using Google Reader (don't worry NYT, I still love you). This is from James Goldgeier, writing in CFR about American "strategic drift" since the fall of the Berlin Wall:

"What became clear by the time Bill Clinton became president was that formulating a simple and relevant new strategic purpose for the United States was no easy task. Clinton often harangued his aides for failing to come up with a Kennanesque vision, believing that he needed a replacement for containment to explain his foreign policy to the American people. His top State Department advisers even arranged a dinner in 1994 with Kennan, who was still going strong at age 90. The old master's response to their quest? Forget the bumper sticker, he said, the world was now too complex. Try, instead, he suggested, "for a thoughtful paragraph or two."

Kennan had hit upon a central truth of the post-Cold War world: with no single enemy and a range of diverse challenges--including proliferation of weapons of mass destruction, climate change, pandemics, terrorism, the rise of new great powers, and globalization--there would be no bumper sticker."

Climate change and human rights law

From Opinio Juris:

"I argue that the solution is to look to the duty of international cooperation, which requires states to try to act as a single global polity to address the global threat of climate change. By providing a basis for the application of the environmental human rights jurisprudence, this approach would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected. Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable."

U.N. Rapporteur questions legal basis of U.S. Predator program

This article originally appeared in the online digest of the Harvard International Law Journal.

The legality of the U.S. Government’s use of unmanned Predator drones to target militants in Afghanistan and Pakistan has recently come under increasing scrutiny, as a prominent U.N. representative called the American refusal to discuss the program “untenable”. Philip Alston, the U.N. Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions, made his remarks while reiterating requests for the U.S. to provide information on the legal rationale for its use of the drones, the mechanisms it uses to review the program, and the precautions it takes to make sure its air strikes conform with international law.

The debate over the legality of remote-controlled air strikes turns largely on the question of whether the American pursuit of terrorists represents an active armed conflict analogous to a conventional war between nations. As such, the debate over the drones is one example of the broader disagreement which has resulted from the application of international humanitarian law (IHL) to the “war on terror.” IHL, which regulates armed conflict between states, requires the existence of an active conflict, and only applies within the geographic limits of that conflict. Within these limits, IHL authorizes the killing of enemy combatants, including remotely, subject to limitations meant to assure that the use of force is necessary, minimally injurious to civilians, and proportional to expected military gains. Outside a zone of active conflict, however, IHL does not apply, and the U.S. ability to kill individuals without according them due process of law is restrained by a 1976 executive order against assassinations and, arguably, by international human rights law.

While some observers would call Afghanistan a zone of active conflict, far fewer would apply that description to Pakistan, and drones operated by the C.I.A. have been active in targeting militants there, including Taliban leader Baitullah Mehsud, who was killed in August. American drones have also targeted militants in Yemen. In extending IHL to cover these strikes, supporters of the program have argued for the application of IHL wherever terrorists are found, not merely within geographically bounded zones of conflict. This is a novel argument, and as such, the use of Predators to target individuals outside the “war zones” of Afghanistan and Iraq arguably represents a violation of international law. It also represents a sharp departure from pre-9/11 U.S. policy, when C.I.A. drones were limited to conducting surveillance and the U.S. Government criticized Israel for conducting targeted killings of Palestinian militants.

Supporters of the C.I.A. program have argued that, whether or not IHL applies to the air strikes, they are lawful under both the UN Charter and the 2001 Authorization for the Use of Military Force (AUMF) as a form of “anticipatory self-defense.” But opponents point to the principles of sovereign equality and non-intervention in the affairs of other states, arguing that individuals outside active war zones should be brought to justice through domestic processes of law. The question of whether the air strikes are proportional under IHL is also debated; the New Yorker reports that the effort to kill Baitullah Mehsud involved a series of 15 air strikes killing more than 200 other people. Finally, the loosening of geographic restrictions on state-sanctioned lethal force raises the uncomfortable prospect of an amorphous, global definition of conflict, which other states or non-state actors could potentially use to target Americans.

The practical value of the C.I.A. program is also debated. While the use of Predators has been credited with eliminating numerous Al Qaeda leaders and sowing confusion within the organization, it has also led to many civilian casualties, which has rallied anti-American sentiment in the very places where the U.S. is trying hardest to win “hearts and minds.” Another criticism of the program is that electing to kill terrorists rather than capture and interrogate them reduces the intelligence the U.S. can gather on its enemies; proponents of this argument point to the potential information value of Saad bin Laden, one of Osama’s sons, who was killed by a Predator strike in Pakistan. Finally, the recent inclusion of prominent Afghan drug traffickers on the list of acceptable targets has led critics to wonder whether there is any coherent policy limiting the use of the drones to individuals who pose a direct threat to the United States.

Whatever the legal and practical arguments for or against the use of unmanned air strikes against non-state actors, they are unlikely to end in the near future. In the rugged, inaccessible areas where many militants operate, the U.S. Government often believes that it has no good alternatives to the drones. Facing resistance to its plans to increase troop levels in Afghanistan, the Obama administration may make remote-controlled warfare an ever more central part of its counterterrorism strategy.

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Abdullah defends decision to withdraw from election

In this video from the BBC. Analysis from NYT is here.