Hate Obama’s Drone War?

Remember "sovereignty"?

Kiss it goodbye.

There’s been much comment on the Obama administration’s recently leaked Justice Department white paper on the targeted killing of U.S. citizens overseas, but most of the debate has focused on the administration’s Orwellian interpretation of the term "imminence." Less remarked upon has been its equally elastic theory of sovereignty.

In a nutshell, the U.S. legal theory of sovereignty is this: "We have it; you don’t."

Sovereignty has long been a core concept of the Westphalian international legal order. The basic idea is simple: In the international arena, all states are formally considered equal and possessed of the right to control their own internal affairs free of interference from other states. That’s what we call the principle of non-intervention — and it means, among other things, that it’s generally a big international law no-no for one state to use force inside the borders of another sovereign state.

There are some well-established exceptions, but they are few in number. A state can lawfully use force inside another sovereign state with that state’s invitation or consent, or when force is authorized by the U.N. Security Council, pursuant to the U.N. Charter, or in self-defense "in the event of an armed attack."

The principle of sovereignty might appear to pose substantial problems for U.S. drone policy: How can the United States lawfully use force to kill suspected terrorists inside Pakistan, or Somalia, or Yemen, or — hypothetically — in other states in the future? Obviously, the United States does not have Security Council authorization for drone strikes in those states, so the justification has to rest either on consent or on some theory of self-defense. Thus, the DOJ white paper blithely asserts that targeted killings carried out by the United States don’t violate another state’s sovereignty as long as that state either consents or is "unwilling or unable to suppress the threat posed by the individual being targeted."

As I noted last week, that sounds superficially plausible, but since the United States views itself as the sole arbiter of what constitutes an imminent threat and whether a state is "unwilling or unable" to suppress that threat, the logic is in fact circular.

It goes like this: The United States — using its own infinitely malleable definition of "imminent" — decides that Person X, residing in sovereign State Y, poses a threat to the United States and requires killing. Once the United States decides that Person X needs to become deceased, the principle of sovereignty presents no barriers, because either 1) State Y will consent to the U.S. use of force inside its borders, in which case the use of force presents no problem (except for Person X, of course), or 2) State Y will not consent to the U.S. use of force inside its borders, in which case — by definition! — the United States will deem State Y to be "unwilling or unable to suppress the threat" posed by Person X and the use of force again presents no problem.

Needless to say, this is a legal theory that more or less eviscerates traditional notions of sovereignty, and it has the potential to significantly destabilize the already shaky collective security regime created by the U.N. Charter.

But neither the Obama administration nor the Bush administration before it can really be blamed for this anemic understanding of what we might call "other states’ sovereignty." The principles of sovereignty and non-intervention have unquestionably eroded in recent years — but that erosion has been driven by technological and normative changes that go far beyond counterterrorism concerns. Specifically, human rights norms have done as much to erode traditional ideas of sovereignty as have more U.S.-centric theories of counterterrorism. In fact, for all their criticism of U.S. drone policy, those in the human rights community often embrace a theory of sovereignty remarkably similar to the theory that undergirds current U.S. counterterrorism policy.

In essence, both the human rights community and the U.S. counterterrorism community increasingly view sovereignty — and the accompanying right to be free of foreign intervention — as a privilege states can earn or lose, rather than an inherent right of statehood. (I have discussed this issue in my more academic writing, and the following discussion draws both on a previously published journal article and a forthcoming article; anyone interested in seeing either piece can contact me by email.)

In many ways, the big international law story of the last 70 years has been the erosion of traditional legal ideas of sovereignty. This has been driven in part by technological change and globalization: It’s one thing to embrace the principle of non-intervention when events in one state are unlikely to affect events in other states, but another thing altogether in an era in which money, viruses, chemical pollutants, and missiles can move across state borders in hours or minutes, rather than weeks or months. But international law’s embrace of human rights also represents a deep challenge to sovereignty, reflecting a shift away from the notion that what a state does inside its own borders is solely its own concern.

The U.N. Charter struggled to balance traditional principles of sovereignty and non-intervention with a commitment to the maintenance of international peace and a nascent commitment to universal human rights. Over the decades following its adoption, the creation of international human rights treaties increasingly "internationalized" many matters once seen as solely of domestic concern — causing some states to insist that international inquiries into their human rights practices violated their sovereignty.

By the late 1990s, the principle of non-intervention had come under sustained assault by the human rights community. The Balkan wars and the Rwandan genocide had demonstrated that non-intervention could carry a heavy moral price tag, and in 1998, when reports of Serbian "ethnic cleansing" in Kosovo began to emerge, human rights advocates urged the international community to take action to prevent a possible new genocide.

The United States and other NATO members responded with an aerial bombing campaign against Serbian targets within the Federal Republic of Yugoslavia (as it was still then called). This military action was not authorized by the Security Council, and NATO could make no plausible claim relating to state consent or self-defense. As a result, many international law experts viewed the Kosovo intervention as illegal — or, at best, "extra-legal." Nevertheless, it was generally viewed as morally legitimate, and it received what amounted to retrospective endorsement in later Security Council resolutions.

Commenting on the tensions between sovereignty and human rights, then-U.N. Secretary General Kofi Annan asserted in 1999, "State sovereignty, in its most basic sense, is being redefined — not least by the forces of globalization and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa….When we read the [U.N.] Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them. The genocide in Rwanda showed us how terrible the con­sequences of inaction can be….But this year’s conflict in Kosovo raised equally important ques­tions."

Those questions — initially framed mainly as questions about the legality of "humanitarian intervention" — were soon recast as questions about the rights and duties of sovereignty. In 2001 — within months of the 9/11 attacks — the International Commission on Intervention and State Sovereignty released a report asserting that the most fundamental duty of sovereign states was the protection of their populations. "State sovereignty implies respon­sibility….Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwill­ing or unable to halt or avert it, the principle of non-interven­tion yields to the international responsibility to protect."

This notion of a "responsibility to protect" was embraced by the international community — including the United States — with surprising rapidity. In every way, it represents a radical assault on traditional legal concepts of sovereignty. The "responsibility to protect" doctrine — often now referred to as R2P — suggests that when a state fails to protect its own population, it can no longer claim any right to be free of external intervention (including, in extreme cases, military intervention) if intervention is needed to secure the safety of a threatened population.

And by implication, that intervention need not necessarily be authorized by the U.N. Security Council. If the Security Council "fails to discharge its responsibility to protect in conscience-shocking situations crying out for action…concerned states may not rule out other means to meet the gravity and urgency of that situation," observed the 2001 ICISS report. The logic is clear enough: If failure to protect its population delegitimizes a state’s legal claim to sovereignty, then the failure of collective security structures (such as the UNSC) to take appropriate corrective action would similarly delegitimize those collective institutions. Put a little differently, the Responsibility to Protect logically implies that both "the international community" and individual states have a right and a duty to intervene — militarily, if necessary — when another state is "unwilling or unable" to protect its own population.

If the language justifying drone strikes in sovereign states appears to directly parallel the language of the Responsibility to Protect, it’s no accident. Although the R2P doctrine was developed in response to genocide and other mass atrocities, the language of R2P was easily turned to other purposes. That’s not entirely inappropriate, either: R2P’s underlying logic is equally applicable to terrorism, which is itself a form of human rights abuse (and one that can have devastating consequences for civilian populations).

As I have argued elsewhere, you "might even say that the R2P coin ought logically to be seen as having two sides. On one side lies a state’s duty to take action inside its own territory to protect its own population from violence and atrocities. On the other side lies a state’s duty to take action inside its own territory to protect other states’ populations from violence. Either way, a state that fails in these duties faces the prospect that other states will intervene in its ‘internal’ affairs without its consent." In a sense, then, it was the human rights community’s critique of sovereignty that helped pave the way for drone strikes.

I don’t mean to overstate this, or suggest that this necessarily legitimizes drones strikes or similar cross-border uses of force. There are plenty of non-sovereignty-related reasons (both strategic and rule-of-law-based) to object to current U.S. drone policy. And the parallel between R2P and unilateral U.S. counterterrorist drone strikes is inexact, for two reasons. First, R2P proponents may acknowledge hypothetical situations in which unilateral military interventions not authorized by the Security Council might be justified, but in practice, R2P advocates have demonstrated a strong commitment to viewing force as a last resort and to building Security Council — or at least strong multilateral — support for any interventions. Neither of these commitments appears fully shared by the Obama administration, or the Bush administration before it.

Second, arguments premised on the Responsibility to Protect are transparent: Evidence that a state is unwilling or unable to protect its population from egregious harm can be examined by all, and R2P-based interventions are publicly proclaimed, making it possible to hold interveners accountable for errors or abuses.

Nonetheless, the parallels between R2P and the understanding of sovereignty that undergirds U.S. drone policy are troubling. I’m no fan of the traditional legal conception of sovereignty, which has been used to mask many abuses. But in a world with no meaningful international governance structures, sovereignty — even a weak and hypocritical conception of sovereignty — is one of the few bulwarks against unilateral overreaching by great powers.

Our fragile international order rests less on "law" than on implicit bargains between states, and insofar as U.S. drone policy further undermines traditional norms relating to sovereignty and the use of force, it risks undermining those tenuous bargains. It risks sending the message — to friends and foes alike — that we will no longer even offer much pretence of respecting sovereignty. As a result, it risks undermining the fragile order we so desperately need.

If we toss sovereignty into history’s dustbin, what will replace it?