Notre Dame Law Professor – Mary Ellen O’Connell

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This interview was originally published by Rob Grace at Law and Security Strategy, a part of the Foreign Policy Blog Network.

Rob Grace  chose Mary Ellen O’Connell as his  Person of the Year for 2010.  She’s the Robert and Marion Short Professor of Law at Notre Dame, an opponent of the CIA’s drone program, and a strong proponent of international law.  Check out Rob’s interview below.  Thanks Rob for allowing me to re-post this here.

 

GRACE: Explain to my readers why the CIA’s drone program is illegal.  To what sources of law should one look to make a determination?

O’CONNELL: The CIA program is unlawful because members of the CIA have no right under international law to engage in intentional killing.  International law accepts that regular members of a sovereign state’s armed forces may kill during armed conflict hostilities so long as they comply with the law of armed conflict.  Members of the CIA are not members of our regular armed forces.  Since CIA drone operations are outside of the United States, international law is the relevant law.

Your readers might find my short article of interest:, The International Law of Drones (Nov. 12, 2010.)  It is available at asil.org/files/2010/insights/insights_101112.pdf

GRACE: You have expressed that your goal is to bring the Obama administration’s actions into the realm of legality.  What can I, and my readers, do to help bring about this change?

O’CONNELL: Thank you for asking.  There is much that we all can do.  We should contact our members of Congress and the President.  We should be writing for the media, the Web, and in scholarly journals.  We should be asking the leaders of our places of worship to speak out.  In 2006, faculty at the Princeton Theological Seminary founded the National Religious Campaign against Torture.  That effort and others like it should now be expanded to campaigns against torture and targeted killing.  Most of us would agree that unlawful killing is as serious a moral, ethical, and legal issues as torture.

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have assisted a father in bringing a law suit to prevent the targeted killing of his son, an American citizen in Yemen.  (The U.S. has carried out targeted killing in Yemen in the past with drones operated by the CIA.)  The ACLU and CCR can use financial assistance.  I expect we will see more such lawsuits filed in this country and abroad.

One of my neighbors has a bumper sticker she bought on the Internet that reads: “Stop the drones!”

GRACE: Why have international law’s enforcement mechanisms been thus far unsuccessful in bringing the drone program to an end?  Couldn’t one point to this as an example of international law’s ineffectiveness?

O’CONNELL: You are right that until now international law has not had the pull of compliance for America’s leaders.  It is worth pointing out that the Bush administration tried to keep the drone program largely secret.  It has only been with the high number of attacks in the Obama administration that the issues have come to light.  The Obama administration has attempted to justify the attacks on the basis of international law.  Both of these facts impede the usual pressure that can be brought to bear to end illegal conduct.  It took a few years in the case of torture, too.  The U.S. ended the use of torture, and I am confident that when the facts are more widely understood and the weakness of the proffered legal arguments, the U.S. will comply with the law against targeted killing.

GRACE: In The Power & Purpose of International Law, you critique Jack Goldsmith and Eric Posner’s The Limits of International Law.  They argue that international law is not very effective or relevant, you disagree.  Have they responded?  Are you interested in continuing the debate?

O’CONNELL: I am not aware of any response at all by Goldsmith or Posner to my book.  Indeed, Eric Posner has continued to attack international law in a new book called, The Perils of Global Legalism (2009), yet he does not respond in the book to either my book  or other devastating reviews of his book with Goldsmith.  If these authors have no adequate answers to the criticism–and they may not–then in the academy one remains silent.

GRACE: The early realists openly acknowledged the limits of their school of thought.  Thucydides, considered the grandfather of realism, wrote about realism only in the context of a dialogue in which one side completely rejected realist ideas.  E. H. Carr wrote that the “necessity recognized by all politicians, both in domestic and international affairs, for cloaking interests in the guise of moral principles is in itself a symptom of the inadequacy of realism.”  Why do you think, in the second half of the 20th century, that realists abandoned these caveats?  Why did they start to believe that realism was actually real?

O’CONNELL: Another good question that  I discuss this to some extent in The Power and Purpose of International Law.   Part of the problem is that many American realists remain wedded to the 1960s views of Hans Morgenthau and his students that life is only about the drive for power.  Morgenthau concluded that in the important area of limiting the use of force, U.S. leaders should pursue military power even if it meant ignoring the law.  It makes for a simple recipe in foreign policy but not one that is creating a the kind of world most of us want.

GRACE: You frequently reference ICJ rulings in your arguments.  Benjamin Wittes, in your debate with him last year, criticized this for reasons that, in my opinion, you successfully refuted.  But what about Article 59 of the ICJ Statute?  Since ICJ decisions are only binding for the parties involved, should we be careful about presenting ICJ rulings as precedential?  Can we safely assert, for example, that the ICJ’s Congo v. Uganda ruling on the scope of Article 51 applies to the U.S. in Pakistan?

O’CONNELL: You are right that the holding of a particular ICJ decision is only binding on the parties before the court.  Only Uganda owes damages to Congo as a result of the Congo v. Uganda decision.  But the ICJ is interpreting international law in these cases and international law applies to all states, international organizations, and to individuals to some extent.  The ICJ said in Congo v. Uganda that using armed force in another state’s territory is lawful only if there is a significant armed attack on a state.  That rule does apply to U.S. drone attacks in Pakistan–drone attacks are armed force.  The U.S. is using them often without the consent of Pakistan even though Pakistan has never attacked the U.S.

GRACE: Rousseau wrote scathingly about the emergence of law, stating that it “gave new powers to the rich,” “destroyed natural liberty,” and “converted clever usurpation into unalterable right.”  Many writers have applied this idea – that the powerful shape law to serve their interest – to international law.  In your book, you are dismissive of this view, as argued by critical legal theorists.  Why?  Is this not a useful lens through which we can examine international law?

O’CONNELL: The main problem with the argument is that it does not apply only to international law.  Everyone in America knows that the wealthy get a better deal in our legal system than the poor.  It is a problem of all law and is no basis for dismissing international law.  And, on the other hand, look at what international law has helped accomplish for people, especially the weakest in society–the very idea of human rights, of equality before the law is understood worldwide, largely because of international law.  A small, weak country like Nicaragua could successfully sue the United States for unlawful use of force in the International Court of Justice.  The U.S. speaks to China in terms of international law to seek the improvement of the conditions of work, of respect for freedom of conscience, and other fundamental rights.

GRACE: At the end of Chapter 4 of Power and Purpose, you suggest expanding the UN Charter’s Article 2(4), which proscribes the use of force, to include internal armed conflict.  Can you elaborate on this idea?  Is there a budding movement to bring this idea to fruition?

O’CONNELL: I know of no movement, yet, to develop a norm against civil war.  But it makes sense as the next important development in law against war.  More people die in civil war than any other kind.  International law has the promotion of peace as a fundamental goal.  It has the capacity, the power to create a norm against internal war, as it has against inter-state war.  The time is right for us to work for this.

GRACE: My sense is that the debate about international law is here to stay.  What do you think?  Will critiques of international law continue to resonate?  Or do you expect the tables to turn?

O’CONNELL: International law, like all law, is a human construct and so it is flawed and will always need our efforts to improve it.  But I do think that Americans who had a great commitment to international law at the founding of this country and have returned to it in time of need–the Civil War, after World War I and II, for example, will turn to it again as we see the rise of China and the need to respond to problems that only international law can solve: problems of peace, prosperity, human rights, and protection of the natural environment.

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