Dangerous Proportions: Means and Ends in Non-Finite War

Abstract

Philip Alston’s deep worries about the institutionalization of the tactic of targeting killing, the ensuing extension of warfare and its corrosive consequences for any meaningful possibility of scrutinizing the legality of such strikes, proved far-sighted. The chapter focuses on the accompanying re-articulation of the right of self-defense by states active in the war on terror and demonstrate that it has fashioned a set of interconnected legal propositions that we call “revisionist.” This revisionist framework, we show, cumulatively engenders a highly permissive framework for the preventive, extraterritorial, use of lethal force against individuals and non-state groups, with a geographically and temporally expansive scope. We do not argue that this permissive version of self-defense is now lex lata or even de lege ferenda. We also distinguish ourselves from the view that the revisionist framework departs from “the ‘old days’ when the law was allegedly certain” – that is, when the law required a high threshold of effective control by the territorial state over the non-state armed group. Instead, building on Robert Brandom’s Hegelian account of the determinateness of legal concepts, we frame the revisionist framework as a historically-embedded process of determination of the new content of the concept of self-defense. The chapter shows that these conceptual revisions bring with them a reconfiguration of the structure of legal relationships presupposed by the jus ad bellum’s concept of proportionality, and a new (in)determinacy which renders the concept more permissive than constraining.

Keywords: jus ad bellum, jus in bello, targeted killing, war on terror, proportionality, self-defense, international court of justice, Nicaragua, legal concepts, (in)determinacy

JEL Classification: K33