Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan

45 Pages Posted: 11 Dec 2009 Last revised: 30 Oct 2010

Jordan J. Paust

University of Houston Law Center

Date Written: December 8, 2009

Abstract

This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality.

Keywords: Afghanistan, armed attack, captures, Caroline incident, drones, life, human right, indiscriminate, law enforcement paradigm, NATO, necessity, non-state actor, Pakistan, proportionality, Security Council, self-defense, self-defense paradigm, targeted killing, war, war paradigm

Suggested Citation

Paust, Jordan J., Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan (December 8, 2009). Journal of Transnational Law & Policy, Vol. 19, No. 2, p. 237, 2010; U of Houston Law Center No. 2009-A-36. Available at SSRN: https://ssrn.com/abstract=1520717

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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