Permissible Self-Defense Targeting and the Death of Bin Laden
16 Pages Posted: 20 Oct 2011 Last revised: 27 Oct 2011
Date Written: November 11, 2010
This essay addresses several points made during a presentation at the Sutton Colloquium at the University of Denver College of Law on November 6, 2010 concerning the permissibility of use of responsive force in self-defense either in the context of war or outside of a relevant armed conflict when non-state actors such as members of al Qaeda engage in continual armed attacks on the United States, its embassies abroad, and its nationals abroad (especially continual attacks for several years on U.S. military personnel in Afghanistan). The essay refers to and quotes from my article in FSU’s Journal of Transnational Law & Policy, Vol. 19 (2010), also available at SSRN. The essay notes that lawful measures of self-defense can occur outside the context of war and without foreign state consent against non-state actors who are directly participating in the armed attacks (DPAA) and, in the context of war, against persons who are directly participating in hostilities (DPH). In either context, general principles of distinction among persons, reasonable necessity, and proportionality will condition lawful uses of force. Indiscriminate uses of force either in self-defense or during war are impermissible.
Keywords: Al Qaeda, Pakistan, Yemen, armed attack, breach of neutrality, drones, human right, indiscriminate, law of war, mens rea, necessity, non-state actor, principle of distinction, proportionality, self-defense, self-defense paradigm, targeted killing, theatre of war, war paradigm
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