Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

31Jan/130

Elongated Imminence

One of the common complaints about the speeches by John Brennan, Eric Holder, Harold Koh and other officials about the U.S. position on the use of force outside the hot battlefield has been that the concept of "imminent" threat has been give too loose a meeting.  Professor Michael Lewis of Ohio Northern University's Petit Colege of Law has an interesting post at Opinio Juris discussing this issue:

First of all it must be recognized that, like the term “proportionality”, “imminence” is an important term in two different areas of international law, and it carries different meanings in these different contexts.  Imminence is at the core of the jus ad bellum concept of self-defense based on its use in the Caroline standard.  Since the adoption of the UN Charter there has been debate about whether the “inherent right” of self-defense contained in Article 51 is broader or narrower than the Caroline standard.  While that question has not been definitively settled, it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 “imminence” is broader than Caroline “imminence”.  If for over 40 years most states believe that they are not required to “take the first punch”, how different is the imminence standard proposed by Brennan and others, particularly if the punch they are likely to take is directed at their civilian population?

A different version of imminence is also central to determining the threshold for lethal force in IHRL.  Law enforcement may only employ lethal force in response to an imminent threat of harm to others.  This version of imminence is generally regarded as being extremely narrow in terms of both time and space.  Classic uses of lethal force scenarios involve self-defense or defense of others by police against armed attackers that are actively threatening people.  Yet there are examples where even IHRL’s version of imminence becomes “elongated”.  Using lethal force in a hostage situation need not be based on the belief that the hostage taker will harm a hostage in seconds or even minutes if lethal force is not used, but may take into account the broader context of the standoff and the state of negotiations.  Even less imminent is the use of lethal force against a fleeing violent criminal (a mass murderer or serial rapist) who continues to flee and appears likely to escape if lethal force is not employed.  While such an incident would be investigated and questions about the basis for law enforcement’s identification of the target and the feasibility of capture would certainly be raised it is easy to imagine scenarios in which such a use of lethal force, even outside the context of an armed conflict under a strictly IHRL regime, would be considered justified.  The biggest difference between this standard and the one articulated by Brennan and others is probably in the transparency of the investigation rather than in the standards that are used to determine whether the use of lethal force was justified.  While the lack of transparency is certainly a concern, it is hard to describe this standard as being an unrecognizable extension of imminence.

Read it all here.  What do you think?  Has the concept of imminence been given appropriate integrity?

Charles A. Blanchard
General Counsel
United States Air Force