The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone
Jennifer C. Daskal
Georgetown University Law Center
June 1, 2012
University of Pennsylvania Law Review, Vol. 161, 2013, Forthcoming
The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and detain without charge. To date, the legal and policy discussion on this issue has been locked in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict and broad detention and targeting authorities extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, human rights groups, and other scholars, fearing the creep of war, counter that the conflict and related authorities are geographically limited to Afghanistan and possibly northwest Pakistan. Based on this view, state action outside these areas is governed exclusively by law enforcement, tempered by international human rights norms.
This Article breaks through the impasse. It offers a new and comprehensive law of war framework that mediates the multifaceted security, liberty, and foreign policy interests at stake. Specifically, the Article recognizes the state’s need to respond to the enemy threat wherever it is located, but argues that the rules for doing so ought to distinguish between the so-called “hot” battlefield and elsewhere. It proposes a set of binding standards that would limit and legitimize the use of targeted killings and law of detention outside zones of active hostilities – subjecting their use to an individualized threat assessment, a least harmful means test, and significant procedural safeguards. The Article concludes by describing how and why this approach should be incorporated into U.S. and international law and applied to what are likely to be increasingly common threats posed by transnational non-state actors in the future.
Number of Pages in PDF File: 49
Keywords: targeted killing, detention, law of war, hot battlefield, conflict zone, international humanitarian lawAccepted Paper Series
Date posted: May 2, 2012 ; Last revised: December 30, 2012
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