Marty Lederman, “Of So-called ‘Folk’ International Law,” Just Security, October 2, 2014 | Samuel Moyn | August 02, 2016

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Marty Lederman, “Of So-called ‘Folk’ International Law,” Just Security, October 2, 2014

Of so-called ‘folk’ international law and not-so-grey zones

By Marty Lederman

Just Security, October 2, 2014

Over at Lawfare, Naz Modirzadeh appears to lament the fact that, in some contexts, President Obama has determined to apply targeting standards more restrictive than what the law of armed conflict (LOAC) requires.  She points, in particular, to a new Mike Isikoff article reporting that in Iraq and Syria the Pentagon is not applying the strict standards for targeting in Yemen and Somalia that the President announced in his May 23, 2013 National Defense University speech and codified in his Presidential Policy Guidance (PPG).  In particular, in his NDU speech the President announced that in areas outside of active hostilities, “before any strike is taken . . . there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.”  The Pentagon is not using this standard in its strikes against ISIL, but is instead applying the more lenient, but still very restrictive, principles imposed by the LOAC–including that civilians and civilian objects may not be targeted; that all reasonable precautions must be employed to minimize civilian casualties; and that strikes may not be made where the anticipated civilian casualties would be excessive in relation to the concrete and direct anticipated military advantage (the rule of proportionality).

It is, of course, perfectly appropriate to raise questions about why the PPG rules for Yemen are not being applied in the context of ISIL.  Indeed, apparently Isikoff did ask such questions, and he got at least a partial answer:  Under the PPG rules, as a practical matter every strike “ha[s] to be signed off on by the White House — first by Lisa Monaco, Obama’s chief homeland security adviser, and ultimately by the president himself.”  In Iraq and Syria, by contrast, the decision was made to “give[] more discretion to theater commanders at the U.S. Central Command to select targets without the same level of White House oversight.”  Moreover, if reports are accurate, the campaign in Iraq and Syria involves strikes against ISIL forces and facilities based on their status rather than on personalized threat assessements–something else that is generally prohibited in Yemen under the PPG, but that presumably would be an infeasible or ineffective constraint in light of the military objectives against ISIL.

This still does not explain why those theater commanders in Iraq and Syria are not themselves being instructed to forgo ordering strikes where civilian casualties are foreseeable.  Presumably there are operational reasons for the differences in targeting standards in the two geographic regions–reasons that the Administration should be encouraged to articulate.

But Naz’s post, if I’m reading it right, is deeply critical of the President for having even established the PPG standards in the first instance–something that she calls the creation of “folk” international law–apparently because they go beyond what the law of war requires, thereby creating a situation in which the civilians of one nation are afforded greater protections than the civilians of another nation.  The PPG rules, however, do not purport to reflect any view of what international law requires:  Indeed, the whole point is that the PPG imposes restrictions above and beyond what the governing international (or statutory domestic) law requires, as a matter of policy.  They are, in Naz’s own characterization, “shockingly stringent” norms.  From the perspective of humanitarian protection, surely this is an unalloyed positive development, something to be applauded and encouraged rather than second-guessed.

Moreover, as I’ve explained here, it also has the virtue–and apparently is designed in significant part–to “align” our practices in Yemen and Somalia with the legal views of our allies who do not agree that the U.S. is engaged in an armed conflict with AQ and/or AQAP in those nations.  If this is what Naz means when she refers to a “convergence of LOAC and international human rights law”–namely, application of some of the (arguable) restrictions of the latter, even in cases where the U.S. thinks those rules do not apply as a matter of international law–I would think that’s something she would welcome and encourage.  It’s not a “bizarre legal admixture”–instead, it’s a salutary set of self-imposed restraints above and beyond what the law requires.  What possible humanitarian value is served by discouraging such policy choices–by arguing that they “never should have been accepted”?  Does Naz truly think that the civilians in Yemen would have been better served if the President had not adopted the PPG rules?

As for the latest campaign against ISIL, there really isn’t much “grey” when it comes to the law.  There’s no serious question that Iraq and ISIL are engaged in an armed conflict, and that the U.S. and other nations have now joined that conflict on the side of Iraq.  Presumably most of the world would agree that the LOAC, as well as the jus ad bellum rules of the U.N. Charter, restricts the use of force in that conflict.  The Pentagon is committed to applying that law….

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August 02, 2016

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Samuel Moyn

Harvard Law School

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