47 Pages Posted: 8 Jan 2012 Last revised: 5 Aug 2015
Date Written: 2012
Targeted strikes – predominantly using drones – have become the operational counterterrorism tool of choice for the United States over the past few years. Targeted killing can be used both within armed conflict and in the absence of armed conflict, as a means of self-defense, usually as operational counterterrorism. Indeed, this duality lies at the heart of the United States justifications for drone strikes from Afghanistan to Somalia. Within armed conflict, parties to the conflict have the right to use lethal force in the first resort against enemy forces, which includes, as detailed below, members of the regular armed forces, members of organized armed groups or civilians directly participating in hostilities. International law also recognizes the right of states to use force in self-defense in certain circumscribed circumstances.
For the past several years, the United States has relied on both armed conflict and self-defense as legal justifications for targeted strikes outside of the zone of active combat in Afghanistan. Challenging questions arise from the use of both justifications at the same time, without careful distinction delimiting the boundaries between when one applies and when the other applies. This article will focus on the consequences of the United States consistently blurring the lines between the armed conflict paradigm and the self-defense paradigm as justifications for the use of force against designated individuals. In particular, there are four primary categories in which the use of both paradigms without differentiation blurs critical legal rules and principles: geographical issues surrounding the use of force; the obligation to capture rather than kill; proportionality; and the identification of individual targets, namely the conflation of direct participation in hostilities and imminence. On a broader level, there are three areas in which this blurring of legal justifications and paradigms has significant contemporary and future consequences for the application of international law in situations involving the use of force. In particular, this blurring undermines efforts to fulfill the core purposes of the law, whether the law of armed conflict or the law governing the resort to force, hinders the development and implementation of the law going forward, and risks complicating or even weakening enforcement of the law.
Keywords: targeted killing, self-defense, law of armed conflict, IHL, Geneva Conventions, drones, al Qaeda, counterterrorism
Suggested Citation: Suggested Citation
Blank, Laurie R., Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications (2012). William Mitchell Law Review, Vol. 38, 2012; Emory Public Law Research Paper No. 11-182; Emory Legal Studies Research Paper No. 12-217. Available at SSRN: https://ssrn.com/abstract=1981379
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