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The Internationalists Mini-Forum: Wars of Self-Defense, An Exception that Swallows the Rule

A U.S. soldier in Iraq, 2007

(This piece is the latest of several on Just Security examining The Internationalists: How a Radical Plan to Outlaw War Remade the World, written by Just Security editorial board member Oona Hathaway and her colleague Scott Shapiro.)

Wars used to be justified by their goals. Territorial expansion, restitution or claiming property, securing a throne, and mass religious conversion were all acceptable goals under the tenets of Just War Theory; and they all justified war to begin with, particularly if you ended up attaining them at the end. But since we no longer live in a legal world that sees war as the continuation of diplomacy, when we do end up going to war, it is becoming harder to define our goals. Indeed, our preoccupation with the legality or the justification for war often clouds our ability to see war – and judge it – in terms of goals sought and achieved.

The modern jus ad bellum has aimed to banish war as a legal regime: From an acceptable instrument of self-interest, enforcement and punishment, war has become an evil of last resort, and (absent a U.N. Security Council authorization), carried out in the name of self-defense only. In The Internationalists, Oona Hathaway and Scott Shapiro trace the transformative moment to the 1928 Kellogg-Briand Pact, urging us, through a compelling history-of-ideas narrative, to celebrate the Pact’s prohibition on wars as nothing short of revolutionary. Contrary to much conventional thought that dismisses the Pact as an ironic prelude to the worst war in human history, Hathaway and Shapiro see the Pact as “one of the most transformative events of human history” (p. xiii), not only for its normative innovation, but also for its practical role in driving the decline in interstate wars since the second half of the twentieth century.

Whether the watershed moment was in fact 1928, Hathaway and Shapiro are undoubtedly correct to identify – and celebrate – the normative effort to restrict wars to those carried out in self-defense. (The authors are equivocal about the Pact’s tacit allowance for such wars, as opposed to the U.N. Charter’s explicit authorization. However, I know of no recitation of the customary right of defensive wars that denies this right on the basis of the 1928 Pact).   

But how much does the defensive paradigm actually restrict nations? As Hathaway and Shapiro acknowledge, self-defense, and its expanded notions that include, inter alia, defense of others, is a highly malleable concept. Indeed, they lament towards the end of the book, “…the growing reliance upon self-defense as a justification for using force… threatens to make self-defense the exception that swallows the rule against war.” Some of the malleability is inherent in any standard. Some is the inevitable result of the fact that today’s world exposes countries and citizens to a wider array of potential threats from a wider array of actors, than ever before. This might help explain, in part, why alongside the decline in traditional interstate wars, the incidence of transnational uses of force is on the rise. And it is not at all clear that such transnational uses of force would not pass muster under the law; or, indeed, what the muster actually requires.  Continue Reading »

The Early Edition: November 16, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP ASIA TRIP

“America is back,” Trump said yesterday following his 12-day tour of Asia, claiming that the days of the U.S. “being taken advantage of are over” and saying that his efforts to drum up support for putting pressure on North Korea were successful. Sabrina Siddiqui and Julian Borger report at the Guardian.

“America’s renewed confidence and standing in the world has never been stronger than it is right now,” Trump claimed yesterday, providing a positive assessment of his Asia trip and referred to his previous trip to Saudi Arabia, his tough talk with N.A.T.O. allies, and lauded his close personal relationships with leaders across the world. Michael D. Shear reports at the New York Times.

Trump blamed the “naïve thinking and misguided judgment” of previous administrations for neglecting a wide-range of issues in Asia, from the North Korean threat to trade relationships. Jordan Fabian reports at the Hill.

China and Japan have seemingly warmed their relations at the Association of Southeast Asian Nations (A.S.E.A.N.) summit at the weekend, apparently moving closer over concerns about the U.S.’s role in Southeast Asia. Motoko Rich and Jane Perlez explain at the New York Times, providing an overview of the relationship and referring to Trump’s recent trip to Asia.

The two U.C.L.A. basketball players who were detained in China thanked Trump for intervening in their case and helping to bring them back to the U.S., Max Greenwood reports at the Hill.

Despite Trump’s comments, the White House seemingly did not achieve any major diplomatic wins during the Asia trip, Cristiano Lima explains at POLITICO.

NORTH KOREA

China reiterated its support for a “freeze-for-freeze” deal to de-escalate tensions on the Korean Peninsula today, contradicting Trump, who said yesterday that the Chinese President Xi Jinping agreed with him that “we would not accept a so-called ‘freeze-for-freeze’ agreement” which calls for a suspension of North Korea’s nuclear weapons and ballistic missiles tests in return for the U.S. and South Korea suspending their annual joint military exercises. Simon Denyer reports at the Washington Post.

It is unlikely that the visit by a Chinese special envoy to North Korea tomorrow would lead to a breakthrough in the crisis on the Peninsula, observers have warned, saying that the focus of the meetings would likely be on improving relations between the two countries rather than on the nuclear weapons program. Ben Westcott reports at CNN. Continue Reading »

Yemen Strike Raises Questions About Whether the US Follows Its Own Drone Rules

 

While we were visiting Yemen this month, the United States conducted a drone strike against alleged al-Qaeda members in Mareb Governorate, reportedly killing two suspects while they were traveling in a vehicle. As one of over 116 drone strikes in Yemen this year, the attack made little news. But the circumstances of this strike, combined with information shared with us by the governor of Mareb, a key U.S. ally, raise very serious questions about whether the U.S. is following its own drone strike rules, or, perhaps, whether those rules are actually in force.

U.S. policy and rules purport preference for capture of suspects 

For years, the U.S. government has told the American public and the international community that it only uses lethal force outside areas of active hostilities where conditions laid out in the Presidential Policy Guidance (PPG) (2013) are fulfilled. The PPG was announced to much fanfare in May 2013 by President Barack Obama, and it has been heralded by supporters as setting out strict rules for when lethal force can be used. Indeed, a major national security speech by Obama, and the publication of a summary of the rules in 2013, led to reduced criticism of U.S. lethal force operations in the following months.

The PPG emphasized a preference for capturing, rather than killing, suspects. The first page of the PPG included this key statement: Continue Reading »

The Internationalists Mini-Forum: Why Has War Declined?

Canadian Prime Minister Mackenzie King signing the Kellog-Briand pact in August 1928.

(This piece is the first of several on Just Security examining The Internationalists: How a Radical Plan to Outlaw War Remade the World, written by Just Security editorial board member Oona Hathaway and her colleague Scott Shapiro.)

If we were having this discussion in the late 1920s or early 1930s, most of us would probably be fans of the Kellogg-Briand Pact outlawing war. Not so today, obviously. But back in the 1930s, as Samuel Huntington points out, American academia put the emphasis “almost entirely upon the questions of form and structure studied in courses in international law and international organization,” aimed at vindicating “world organization.” After the catastrophic failure of such institutions to ward off fascism and global war, the American study of international relations, as taught in law schools and public policy schools, has embraced a postwar disenchantment brilliantly championed by the great realist Hans Morgenthau. Huntington writes, “By the late 1940’s, however, American writers were vying with each other in denouncing the moralism, legalism, utopianism, Wilsonism, and sentimentalism of the American diplomatic past.”

So Oona Hathaway and Scott Shapiro know perfectly well that they’re making a bold claim that the Kellogg-Briand Pact represents “among the most transformative events of human history.” Their new book is cogent and provocative, a gripping study of the diplomats and thinkers who pressed for the outlawry of war, but obviously headed for controversy from critics wary of Whiggish history.

Oona and Scott’s point in The Internationalists isn’t that Kellogg-Briand ended war, but that it ushered in a new legal order in which war is no longer a legitimate tool for righting wrongs, imposing a restraint on leaders contemplating war. They’re well aware that the Japanese invasion of Manchuria in 1931 came not long after the fancy signing ceremony in Paris for the Kellogg-Briand treaty in 1928. To their own lists of wars since Paris, you could add the 1962 war between India and China, the Sino-Soviet border conflict, the Vietnamese invasion of Cambodia, and Vladimir Putin’s annexation of Crimea, which Condoleezza Rice recently called “perhaps the greatest affront to the law-based international order in Europe since World War II.”

Oona and Scott might well point to Rice’s words as evidence that powerful decision-makers stand against aggression on grounds of law and world order. Their argument revolves around a legal shift which causes a cognitive shift in the minds of important leaders. At the same time, they insist upon the role of powerful states in maintaining what they see as a new legal order; their fear, appropriate to these dismal days of Trump, is that the United States will withdraw from that role.  Continue Reading »

The Early Edition: November 15, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP-RUSSIA

Attorney General Jeff Sessions appeared before the House Judiciary Committee yesterday and maintained that he had “always told the truth” about connections between the Trump campaign and Russia, saying that he had “no recollection” of a campaign round-table at which the aide George Papadopoulos was present until he saw the news reports and added that he had “pushed back” against the aide’s suggestion of a meeting between Trump and the Russian President Vladimir Putin. Matt Apuzzo and Nicholas Fandos report at the New York Times.

Sessions addressed the apparent discrepancies between his recent recollections and his previous testimonies about Trump-Russia connections. Democrats on the committee questioned Sessions on his interactions with Papadopoulos and the former Trump campaign foreign policy adviser Carter Page, who had testified before the House Intelligence Committee over a week ago and said that he had told Sessions of his plan to travel to Moscow in 2016. Matt Zapotosky and Sari Horowitz report at the Washington Post.

The four key points from Sessions’ hearing are provided by Amber Phillips at the Washington Post.

Rep. Jim Jordan (R-Ohio) asked Sessions about the dossier alleging connections between the Trump campaign and Russia, Jordan drawing attention to the Clinton campaign and Democratic National Committee (D.N.C.) partially funding the dossier, the F.B.I.’s apparent payment of the author of the document – the former British Intelligence officer Christopher Steele – and the apparent cooperation between the Democratic Party and the federal government to secure a warrant to spy on Trump campaign officials; Sessions’ responded that the apparent connections were “not enough basis to appoint a special counsel.” Aaron Blake explains at the Washington Post, saying that the Attorney General’s comments would probably irk the president.

The F.B.I. is scrutinizing more than 60 money transfers the Russian foreign ministry sent to embassies around the world “to finance election campaign of 2016,” it is not clear how the funds were used by the embassies and the Russian embassy and foreign ministry have denounced the story. Jason Leopold, Anthony Cormier and Jessica Garrison reveal at BuzzFeed News.

The co-founder of opposition research firm Fusion G.P.S., Glenn Simpson, appeared before the House Intelligence Committee yesterday in a closed session, the firm was behind the controversial Steele dossier and a lawyer for Simpson criticized the Trump administration for its attempts to discredit Fusion G.P.S., Olivia Beavers reports at the Hill.

Russia’s lower house unanimously voted in favor of legislation allowing the government to designate international media outlets as foreign agents today, making the move after the Russian state-funded R.T. television channel complied with a request from the U.S. Justice Department to register as a foreign agent. Vladimir Isachenkov reports at the AP.

Did Sessions’ changing testimony amount to perjury? Jan Wolfe provides an analysis at Reuters.

Republicans on the Judiciary committee attempted to deflect from the Russia investigations and Sessions’ hearing was dominated by his inability to recall events “that one would think most people would,” the New York Times editorial board writes, asking “what else are you forgetting, Mr. Attorney General?”

“It’s hard to overstate the mind-blowing stupidity” of Donald Trump Jr.’s posts on Twitter about his communications with WikiLeaks, an organization that was affiliated with the Russians during the 2016 presidential election, Jill Filipovic writes at CNN.

JUSTICE DEPARTMENT

The Attorney General Jeff Sessions confirmed that he had directed Justice Department prosecutors to “evaluate” the concerns raised by Republicans about Clinton, an Obama-era uranium deal with Russia and other issues in his testimony to the House Judiciary Committee yesterday. Katie Bo Williams reports at the Hill.

A decision to appoint a special counsel to investigate former presidential candidate Hillary Clinton and Clinton-related issues would “shatter post-Watergate norms” and would suggest that the Justice Department has been further politicized and weaponized by the Trump administration. To date, Sessions has largely resisted Republican pressure to appoint a special counsel, but he has been put in a difficult position, Peter Baker explains at the New York Times. Continue Reading »

How the Trump Administration Deals With Detainees Can Provide Insight Into its Counterterrorism Priorities

U.S. Army Military Police escort a detainee to his cell Jan. 11, 2002 in Camp X-Ray at Naval Base Guantanamo Bay, Cuba.

What is the US going to do with the “enemy combatants” it picks up during counterterrorism operations?  How will we strike the difficult balance between protecting national security and the rights of individuals?  If these feel like questions that have already been answered—several times over and at length—it’s for good reason.  From the Bush administration’s first fumbling steps to the use of the Guantanamo Bay detention facility through to the Obama administration’s prosecution of domestic ISIS supporters, the disposition of detainees has presented some of the most pronounced legal inflection points for America’s post-September 11 operations overseas.

Now it’s the Trump administration’s turn.  So far, bombastic campaign rhetoric has translated into marked silence on many legal issues around national security, including detention.  Despite rumblings that an executive order on detention was (or may still be) forthcoming, none has yet been issued.  The delay could be for reasons as simple as interagency disagreement on the finer points (which bogged down a number of Obama-era national security initiatives), or it could reflect the difficulty of reconciling campaign rhetoric with the national security and diplomatic realities that experienced civil servants and even a number of Trump’s appointees (such as those with significant military experience) have surely advised must be taken into account.

But the administration will eventually have to speak, at least through its actions.  These questions are very much a part of current news cycles.  The recent attack in downtown Manhattan prompted Donald Trump to renew his call to send more detainees to Guantanamo Bay.  Two of the individuals accused of masterminding the Benghazi attacks are in US custody and have been charged in federal court.  And as Steve Vladeck and others have detailed, US forces in Iraq are holding an American citizen who allegedly turned himself in while fighting for ISIS in Syria.

So far, there has been no clear indication of a concerted administration approach to detainees.  Will Trump, in fact, increase the number of “bad dudes” held at Guantanamo Bay and perhaps tried by military commission?  Or will the administration pursue other avenues for prosecuting these detainees, whether in our domestic federal courts or in another state?  Continue Reading »

Lethal Autonomous Weapons and Policy-Making Amid Disruptive Technological Change

(In Part I of this post on UN talks on lethal autonomous weapons, I discussed how the underlying artificial intelligence that enables autonomous systems is improving rapidly. In this Part II, I will examine different policy approaches for dealing with this uncertainty.)

This week, countries are meeting at the United Nations to discuss lethal autonomous weapons and the line between human and machine decision-making. One complicating factor in these discussions is the rapid pace at which automation and artificial intelligence are advancing. Nations face a major challenge in setting policy on an emerging technology where the art of the possible is always changing.

When nations last met 18 months ago, DeepMind’s AlphaGo program had recently dethroned the top human player in the Chinese strategy game Go. AlphaGo reached superhuman levels of play by training on 30 million moves from human games, then playing against itself to improve even further. But that wasn’t enough. Just last month, DeepMind unveiled a new version called AlphaGo Zero that trained itself to play Go without any human input at all – only access to the board and the rules of the game. It defeated the 2016 version of AlphaGo 100 games to zero after only three days of self-play. This rapid pace of progress means nations face tremendous uncertainty about what might be possible with artificial intelligence even a few years into the future.

How should policymakers deal with this uncertainty?

One way to approach this problem is to shift the focus from the technology, which is constantly changing, to the human, who does not change. Rather than ask what technology we should or should not have, another way to frame the issue is to ask what role humans ought to play in war.  Continue Reading »

Full Text (Photo Images) of Donald Trump Jr and Wikileaks Correspondence

Following The Atlantic‘s Julia Ioffe ‘s scoop revealing the private correspondence between Donald Trump Jr. and Wikileaks, the President’s son released, over Twitter, the photo images of what he described as “the entire chain of messages with @wikileaks … which one of the congressional committees has chosen to selectively leak.” The images are a bit cumbersome to read on Twitter. For ease of reference, we thought to provide larger screen shots of the series of 10 images for readers.

Continue Reading »

The Early Edition: November 14, 2017

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP-RUSSIA

Donald Trump Jr. communicated with WikiLeaks during the 2016 presidential campaign via direct messages on Twitter, the messages advised Trump Jr. of the launch of a Political Action Committee (P.A.C.) run website that would draw attention to connections between the Trump campaign and Russia. Trump Jr. responded to the message saying that he was unaware of the P.A.C. or the website but offered to “ask around” and emailed top Trump campaign officials that WikiLeaks had made contact, Julia Ioffe reveals at the Atlantic.

WikiLeaks was behind the leak of damaging Democratic Party emails during the 2016 campaign, the U.S. intelligence community concluded that WikiLeaks was acting as a conduit for Russian operatives when it published the hacked emails. Trump Jr. published screenshots of a selection of his conversations with WikiLeaks on Twitter last night and the WikiLeaks founder Julian Assange said on Twitter that he could not confirm whether his group had corresponded with Trump Jr. Michael S. Schmidt and Nicholas Fandos report at the New York Times.

“Strongly suggest your dad tweets this link if he mentions us,” the WikiLeaks account wrote to Trump Jr. and included a link to hacked documents from the Clinton campaign chairman John Podesta; although Trump Jr. did not answer, shortly after the message, Trump senior tweeted about WikiLeaks and the information it had revealed about the Democratic Party. Carol D. Leonnig and Rosalind S. Helderman report at the Washington Post.

The communication had been handed over to congressional investigators by Trump Jr.’s lawyers and the president’s son sought to play down his contact with WikiLeaks, referring to his “whopping 3 responses” which “one of the congressional committees has chosen to selectively leak.” Sophie Tatum reports at CNN.

“The Vice President Mike Pence was never aware of anyone associated with the campaign being in contact with WikiLeaks,” Pence’s press secretary said in a statement yesterday, marking another instance where the Vice President has sought to distance himself from the investigations into Russian interference during the election campaign. Matthew Nussbaum reports at POLITICO.

The C.I.A. Director Mike Pompeo’s remarks about Russian interference in the election have sought to silence former C.I.A. officers, however former officers must have the space to speak out about threats to national security. Three former C.I.A. officers – Cindy Otis, Ned Price and John Sipher – write at the New York Times.

The Russian-backed R.T. television station registered as a “foreign agent” in the U.S. with the Department of Justice yesterday, the channel was described as “Russia’s state-run propaganda machine” by the U.S. intelligence agencies in a report published in January 2017. Jack Stubbs and Ginger Gibson report at Reuters.

TRUMP ASIA TRIP

Human rights issues were largely ignored during Trump’s tour of Asia, the president has not yet mentioned the situation in Myanmar, he did not challenge Chinese President Xi Jinping’s authoritarianism or the Philippine President Rodrigo Duterte’s extrajudicial war on drugs, and his neglect of human rights reflected the approach he took when visiting leaders in the Middle East in May. David Nakamura and Emily Rauhala explain at the Washington Post.

Trump stayed largely on message during the 12-day trip, which many were concerned would take its toll on the president. Jonathan Lemire and Jill Colvin provide an overview of the visit at the AP.

While the trip went better than expected, and Trump’s speech in South Korea was particularly well-received, expectations were low and confusion remains over the Trump administration’s strategy in the region. Julian Borger explains at the Guardian.

The six key takeaways from Trump’s trip, which ended today, are provided by Dan Merica at CNN. Continue Reading »

Sessions’ Recusal, the Clinton Foundation, and Uranium One

 

When Attorney General Jeff Sessions testifies before the House Judiciary Committee Tuesday, he will face questioning on the Uranium One deal. As Special Counsel Robert Mueller’s investigation has intensified, President Donald Trump and some congressional Republicans, including Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa), have called on Sessions to investigate Hillary Clinton’s role in what they contend is the real Russia collusion scandal. The 2010 deal allowed Russian state-owned firm Rosatom to obtain a majority stake in Canada’s Uranium One, which owned about 20 percent of U.S. uranium recovery production. A New York Times investigative report found that a Uranium One official donated to the Clinton Foundation before and after the 2010 sale.

But if Sessions were to launch a Uranium One investigation, that might violate the promise he made during his Senate confirmation hearings to recuse himself from Clinton Foundation-related matters, if not his official statement of recusal from all 2016 election-related matters. Important to consider here is that the scope of Sessions’ promise to recuse himself, which he made during his confirmation hearing in January, was broader in part and narrower in part than the scope of his actual recusal in March. Violating any of those commitments would be a major breach of Sessions’ relationship to the Congress, his department, and the public. Continue Reading »