New Imminence in the Time of Obama: The Impact of Targeted Killings on the Law of Self Defense

Abstract

President Barak Obama's authorization to use unmanned aerial vehicles, or drones, to lethally incapacitate persons he believes constitute a threat to the US has become a hallmark of his Administration. Consider that President Barak Obama oversaw fifty-three drone missile attacks during his first year in office, which is more than the total number of similar strikes carried out during the eight years of President George W. Bush's two terms. The Obama Administration justifies its use of force as self-defense in anticipation of an inevitable attack, whose time and place is uncertain. While international law recognizes the legitimacy of anticipatory self-defense, the Obama Administration's targeted killing practice, redefines the traditional meaning of imminence by relaxing its temporal standards. The Obama Administration, purports that modern day warfare characterized by adversarial non-state actors coupled with access to devastating weaponry makes the traditional meaning of imminence inappropriate and anachronistic in dealing with these particular threats. Its contention reflects similar concerns raised by US Administrations dating back to Ronald Reagan in the mid-eighties. Indeed, the U.S. has steadily shifted the meaning of imminence for nearly three decades in its response to terrorist threats, not least of which during the George W. Bush Administration, which explicitly declared a “war on terror.” More broadly, the definitional shift of imminence implicates the regulation of the use of force by states. The concept of "new imminence" is highly susceptible to abuse because it can neither be externally regulated nor restrained. To mitigate the risks posed by new imminence, states must either affirm and/or establish an oversight mechanism of the use of force. Alternatively, states should preserve the traditional law of self-defense and insist that states adopt a political, as opposed to a legal, framework to respond to terrorist threats.