Top DoD Lawyer Stresses U.S. Compliance with the Rule of Law in Military Operations

On September 3, 2019, Paul Ney, the General Counsel of the U.S. Department of Defense (DoD), delivered the Charney Distinguished Lecture in International Law at Vanderbilt Law School.  The Lecture was entitled “The Rule of Law in International Security Affairs: A U.S. Defense Department Perspective.”  The Charney Lecture Series has featured a distinguished list of speakers including John Bellinger, David Caron, Lucy Reed, Anne-Marie Slaughter, and most recently, Fatou B. Bensouda, the Chief Prosecutor of the International Criminal Court.  The Vanderbilt Journal of Transnational Law recently published an Essay based on those remarks.

Ney’s speech provides a timely and easily accessible overview of U.S. military activities and operations in international affairs and how the DoD engages and implements international law.  He also talked about DoD compliance with domestic law in two contexts of particular interest today. “We provide a range of assistance to foreign partners, including training, equipment, intelligence sharing, and operational support, and, in doing so, we comply with applicable domestic and international law.” Second, Ney noted that DoD lawyers “assess any proposed military options for legality under domestic law” as well as international law.

In defining what constitutes the rule of law, Ney made a threshold distinction between (1) the formation of international law, particularly customary international law, and (2) what it means to abide by international law, underscoring that just ratifying a treaty isn’t enough, and that compliance has to be measured by how a country sticks to international law norms it has ratified even when they appear to be in tension with national interests or when cheating might go undetected.  Throughout, he supported his argument with case studies and used the law of the sea as a framing device, as a testament to Professor Charney who was a maritime law expert.

Ney began with the law of war.  He noted that the United States was a party to the UN Charter with its limitations on jus ad bellum, and also of jus in bello treaties like the 1907 Hague Convention on Land Warfare and the 1949 Geneva Conventions, both of which many countries have ratified.  But he pointed out that states “may ratify different treaties, interpret the same treaty provisions differently, and have differing views on what customary international law requires.”  He observed, for example, that the UK holds “the view that humanitarian intervention, in certain circumstances, can be an independent justification for a State to use armed force in another State’s territory even absent the territorial State’s consent, U.N. Security Council authorization, or collective or individual self-defense,” a view that the United State does not share.  Invoking law of the sea history, Ney pointed out that freedom of the seas was once an “invention” by Hugo Grotius that displaced the alternative international law norm espoused by the Portuguese and the Spanish, that “new seas, like new lands, were viewed as the property of those (that is, those Europeans) who discovered them.”  This “new understanding of international law” helped the Netherlands, “a Lilliputian State with a Gulliverian navy” attain “astonishing global power” in that era.

Ney pointed out how new technological developments today have created “another occasion for States to reflect on existing international law and to work towards consensus understandings where possible.”  He talked about cyberspace, postulating a “common understanding” that international law principles apply, coupled with much disagreement about details, including the presumptive validity of “territorial analogies and precedents.”  At the same time, he stressed the need for law to be cognizant of the U.S. cyber-strategy to “defend forward,” which did not necessarily line up neatly to “international territorial boundary lines.

Ney’s next topic in explaining the making of international law in new domains was space law.  As many readers are aware, the United State has recently stood up a Space Force and declared space a “warfighting domain.”   Ney stated that DoD lawyers have played central roles in both initiatives.  He talked about four treaties from the 1960s and 1970s to which the United States is party that form the current international law framework.  He then presented a case study of how the United States took treaty law into account in 2008 as it considered shooting down a malfunctioning U.S. satellite in compliance with international law.  He concluded by describing increased competition in space, particularly the development of anti-satellite weapon systems by such countries as China, Russia, and India.

Ney then turned to customary international law formation.  He referred to Professor Charney’s 1995 article Universal International Law, which advocated “a new approach to the customary lawmaking process based on multilateral forums.”  While admitting the potential utility of such forums, Ney asserted that they haven’t been effective in realizing Charney’s vision, “especially with respect to the law of war,” often degenerating into politicized censure of the practices of other States.  Ney proposed some ideas for improving multilateral forums: (1) states should present about their own best practices, not criticize the practices of others; (2) military or legal experts who are “involved in their State practice, especially in actual operations” should be involved in these discussions; and (3) forums should focus on dialogue between State representatives, rather than “on the wording of a common text from the forum, like a resolution.” One multilateral forum that Ney strongly rebuked was the International Criminal Court (ICC).  “The United States holds our people accountable for their actions, and the United States will take necessary actions to protect our people from prosecution by the ICC without its consent.”

The second part of Ney’s remarks focused on showing how the United States, and DoD in particular, implements the rule of law in practice.  He began by noting that “DoD has more than 12,000 civilian and military lawyers,” with operational lawyers “embedded at the brigade, air wing, and naval strike group level in every theater of operations.”  He then gave a hypothetical example based on the efforts of countries like Iran and China to “exert national control over international straits and waters.”  He described the steps that would occur if such efforts resulted in a use of force: (1) the “intelligence community works to gain as much information about flashpoint incidents as possible—the who, what, where, why, and how;” (2) the National Security Council (NSC) staff convenes an interagency process to come up with options-Department of State for diplomacy, Treasury for sanctions, DoD for military options; (3) within DoD, military operational planners at geographic combatant commands coordinate with the Chairman of the Joint Chiefs of Staff (JCS) to come up with military options; (4) DoD lawyers in the Office of General Counsel work closely with JCS lawyers to scrub any military targeting options for legal sufficiency; and (5) all options are forwarded to the NSC to present to the President to decide.

Ney gave a glimpse of what legal sufficiency review would entail both in terms of international law and domestic law.  “Did the event constitute an armed attack or threat of imminent armed attack such that self-defense could be invoked?” “Is there any evidence that the precipitating use of force was accidental? What non-force options have we tried?  What are the estimated casualties resulting from any of the contemplated force options?”  In terms of domestic law, “What legal authority would the President be invoking if he were authorize to military force?”  If there is no congressional declaration of war or authorizing statute, “could the President use force nonetheless under his constitutional Article II powers if he identifies significant national interests, and the situation does not amount to ‘war’ in the constitutional sense”?  Ney singled out the centrality of legal opinions drafted by the Department of Justice’s Office of Legal Counsel on these questions, noting “the remarkable degree of continuity across administrations” in their legal analysis.

Having given a snapshot of how “international law affects DoD policymaking,” Ney turned to “examples of how we demonstrate fidelity to the rule of law by respecting” existing international law commitments.  He began by pointing out “the differing positions between the United States and China regarding the 1982 Law of the Sea Convention.  The United States has not ratified the Convention” but abides by most of its rules as customary international law.  “China, by contrast, has ratified the Convention and abides by it when compliance suits China’s national interests.”  He gave as support for the latter proposition China’s “decades-long campaign to convert a large swath of the South China Sea into its own exclusive preserve,” harkening back to “the sixteenth-century Portuguese closed-seas norm.”

As his second example of “U.S. commitment to the rule of law in international security affairs,” Ney discussed a fascinating juxtaposition of events concerning Iran.   He reminded the audience of the Iran-United States Claims Tribunal established under the 1981 Algiers Accords, negotiated to end the Iran hostage crisis.  Ney noted that, on June 14, 2019, the DoD Deputy General Counsel for International Affairs was testifying at the Hague before the Tribunal on multibillion dollar claims brought by Iran against the U.S. government in connection with the Foreign Military Sales Program.  It was a time of great tensions with Iran in the Strait of Hormuz, five days before Iran downed an unmanned aerial vehicle in the region.  “What does it say about the United States that, despite the nearly four decades of troubled relations between our two nations, the United States is still honoring the international law commitment to Iran it undertook in the 1981 Algiers Accords, even when most of the remaining claims are Iran’s claims against the United States?”

Ney closed “by emphasizing that the rule of law in the Department of Defense isn’t just about lawyers and legal rules.  The rule of law in the [DoD] is implemented and secured throught the professional values that everyone in the Department seeks to uphold.”  Quoting General Joe Dunford, the Chairman of the Joint Chiefs of Staff at the time, Ney emphasized that “when we go to war, we ‘bring our values with us.’”

The Essay is short, readable, and definitely worth reading in its entirety.

Image: Vanderbilt Law School Twitter

 

About the Author(s)

Thomas Lee

Leitner Family Professor of International Law at Fordham Law School, on leave to serve as Special Counsel to the General Counsel of the US Department of Defense