About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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.
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).
' 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


What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most