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107 Am. J. Int'l L. 380 (2013)
Dangerous Departures

handle is hein.journals/ajil107 and id is 432 raw text is: THE AMERICAN JOURNAL OF INTERNATIONAL LAW in my view, is to look first to empirical data to see what consensus actually exists- by, for exam- ple, giving states a list of concrete, specific incidents in which force was used against nonstate actors and then asking in which cases they believe the use of force to have been justified. In other words, find the common ground first, then describe it, and only afterward seek states' assent to the formulation. In the short term, an empirical approach will produce less grandiose norms than those set out in the League of Nations Covenant, the Kellogg-Briand Pact, or the United Nations Char- ter. It could necessitate choosing more explicitly between a coercion-based system run by the powerful or a consent-based system run by the weak. Yet it could also produce law that works. And in the long term, it could provide a foundation on which broader law can be built to man- age the use of force generally-not merely force used by powerful states against nonstate actors located in less powerful states. DANGEROUS DEPARTURES By Mary Ellen O'Connell* Daniel Bethlehem has proposed a series of principles relating to a state's use of military force against nonstate actors (NSAs). He believes that his proposals will lead to the formulation of a clear set of principles that effectively address the specific operational circumstances faced by states.' While Bethlehem's intentions may be laudable, his effort is founded on the mis- conception that the international legal system lacks sufficiently clear principles to govern the use of military force against NSAs. The system already has such principles, as this comment will show. Where the debate is needed is with respect to another point that he makes: Bethlehem believes that our scholarship in this area of international law is not shaping the operational thinking of those within governments and the military who are required to make decisions in the face of significant terrorist threats emanating from abroad.2 Judging by actual practice, however, scholarship respecting the current law is shaping government thinking. Few states use military force against nonstate actors on the territory of other states to counter terrorist threats. Nevertheless, the international legal community could profit from a debate on why the current rules are being ignored by some military and government officials in these few states. Instead of addressing noncompliance by a few, Bethlehem offers to rewrite the rules, legalizing prac- tices that today are violations of international law. Rewriting the rules will certainly get these states into compliance, but so would rewriting the rules on torture. Seeking law compliance by all is, again, a laudable intention, but doing so by changing the rules is addressing the problem from the wrong end.3 * Robert and Marion Short Professor in Law and Research Professor of International Dispute Resolution-Kroc Institute, University of Notre Dame. 'DanielBethlehem, Self-DefenseAgainstan Imminent orActualArmedAttack byNonstateActors, 106 AJIL 769, 773 (2012). 2Id ' Other efforts of this kind should also be challenged for undermining the law, but as Elizabeth Wilmshurst and Michael Wood point out in their commentary, Self-Defense Against NonstateActors: Reflections on the Bethlehem Principles, 107 AJIL 390,393-95 (2013), Bethlehem's proposals depart even more radically from the law than the [Vol. 107:378 380

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