Self-Defense and Non-International Armed Conflict in Drone Warfare

by Kenneth Anderson

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.<!–more–>

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met for a non-international armed conflict not already underway.  But this is in the context of understanding that, in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views today is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds, in my view, in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  ”No safe havens” has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and evidenced by consistent state practice.

At this moment, strategically, safe havens for both AQ and the Taliban in Pakistan are at the center of the storm, because they represent the intersection of Petraeus’s counter-insurgency strategy as well as what Woodward terms the Biden “counterterrorism-plus” strategy of attacking the safe havens in Pakistan as the locus of the terrorist groups; there is convergence on attacking the safe havens from every strategic view, combined with a view that the real source of the threat is not just <em>in</em> Pakistan, for leading players in the adminstration’s strategic team, it <em>is</em> Pakistan, far more than Afghanistan.  And finally, if one adds to this the John Brennan view, the safe havens already have largely shifted to Yemen and Somalia and will continue to shift into other places in Africa.  If that is the Obama administration’s strategic lens in a nutshell, then the traditional and consistently held US view that safe havens are not immune from attack will not remotely be up for discussion, whether on an armed conflict view or an independent self-defense view of targeted killing and drone strikes.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

(Added:  Thanks to the comments below.  Two quick thoughts.  First, with respect to Alan’s comment on assassination, my understanding of the legal meaning of the assassination ban at this point, as a descriptive legal matter, is that it is indeed only the restatement of the illegality of something that was already illegal; Koh’s speech restates Sofaer’s 1989 statement that the ban applies to acts that would already be illegal.  Hence it does not add a new category of previously illegal things, and in that sense says that the original executive order was hortatory or a restatement of existing US law and policy.  I understood Koh to be reaffirming precisely that interpretation in his speech.  Second, to Nathan, no worries.  But I’d add that I don’t think my factual view of AQAP from two years is correct, on the basis of what has been publicly shown; I had been inclined as a matter of factual characterization to see it as “inspired” by but not coordinated with AQ in any substantial way, and that was, I believe, not actually the case, and not the case now in any event.)

http://opiniojuris.org/2010/10/22/self-defense-and-non-international-armed-conflict-in-drone-warfare/

6 Responses

  1. I think your idea to look at this issue through the prism of self defense unrelated to territorial geography even outside of an armed conflict is a useful one for analysis.  So much of law — not just international law, but the law of search and seizure, as well, for example — seems to require knowledge of “who and where” as thresholds for analysis and action.  In the 21st century networked world, however, the reality is that “where” can be “in the cloud,” and “who” can be very difficult to ascertain with certainty (thinking here of cyber activity).  So thinking through a new paradigm for uses of force that is not tied soley to territorial geography, but perhaps to other criteria, is a useful endeavor, it seems to me.   Sometimes we know “who,” but the where is disqualifying; other times we have trouble knowing with certainty either “who,” or “where,” but we know “what:”  we can see the damage ocurring (think cyber) …..

    But, there is this, it seems to me:  when is “targeted killling” assasination, and when isn’t it?  Or does it, should it, even matter?  It can be a slippery slope.

    Currently, Executive Order 12333 states, at section 2.11:

    “Prohibition of Assassination:  No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.”

    As you yourself have pointed out previously on this blog, the word “assassination” is left undefined in the EO.

    Your comments are dead on, and worth repeating here:

    “That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended — and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it.”
    . . .

    “The assassination ban, on this reading, argues that in order to be an assassination, the killing must already be unlawful on some independent ground — because it is murder, for example, or cannot be justified under international law of self-defense.  The result is that the ban on assassination becomes coincident with killing that would be unlawful under domestic or international law in any case.  The assassination ban does not include lawful acts of self-defense.”

    I have to say that I find all of this rather tautalogical, however, and remind so me of the Nixonian concept about law and the President’s word.

    When is assassination not a lawful act of self defense?

    When it’s not assassintion, apparently.

  2. Certainly we can exclude from “assassination” the targeting of anyone who is a legitimate military target under IHL. This refers to members of the regular armed forces of an enemy state, members of armed units of parties to an armed conflict who are engaged in continuous combat function, and civilians who are directly participating in combat.

    Even in a recognized armed conflict, an attack on an individual who is engaged in civilian political activity instead of military operations (a spokesman or fund raiser for al Qaeda) would reasonably be defined as assassination. Attack on an AQ military commander is not. Then there is a vast gray area in the middle where one uses military force against the armed units of an enemy whose activities have not yet risen to the level of an armed conflict (preemptive strikes against Kenneth’s hypothetical Peruvian Maoists). This may be an area of academic interest, but it is unrelated to current affairs.

  3. I recognize this may be considered a bit gauche to say in this time, but let me insist that the state’s predicating detaining/killing people on self-defense grounds (outside of imminence) is not a space with which I would wish that we join.  For me, it is very quickly “enemies lists” and “who can we disappear and whack” because “we” think they are bad people.  We are not far from “thought crime” here. In fact, we are there I would suggest.  Given the capacity of state actors to “freak out” (term from the Margolis paper) I hope that those thinking in these terms have some at least sensitivity to how a state can be oppressive on its citizens or others in the way that use to be a big part of human rights practice.  Sorry to seem so old school in these times of being enamored with killing.
    Best,
    Ben

  4. I think I perceive correctly that this shift in your thinking is driven as much by the niceties of justifying the targeted killing of terrorists under present domestic law – i.e. especially the AUMF – as by any real sense of where custom, text, and precedent put international law.  The administration prefers the non-international armed conflict rationale because it is cleaner, more helpfully defined in its precedents, and ultimately less risky in terms of the outcome of litigation than is the self-defense rationale.

    All well and good.  I am strong for the national security of the United States.  I believe in the terrorist danger as you do.  And I recognize that the work you are doing is to legalize to the world the actions of necessity.  But even so, there is something – forgive me – a bit tawdry about it.  This latest is too much grasping after the most convenient justifications.  This is too much wrenching of laws written without any concept of the present counterterrorism landscape to do things they were never designed to do.  This is, in short, too much legislating masquerading as interpretation.

    The law follows necessity; I accept that.  In fact it lags necessity, catching up only post hoc.  But the proper venue for what you are doing is Congress, and perhaps even international treaties – not this distortive wrenching.  Propagandists, financiers, and even bomb-makers are civilians under the laws of war – not combatants.  What does it do the to application of the laws of war under more traditional settings if we have wrenched them to justify targeting these sorts of people in counterterrorism operations?  Are you certain that is what you want to do?

    And, supposing you do not – or if efforts to do so fail – then you are on the horns of a dilemma.  Justify targeted killing as part of a non-international armed conflict, and you are bound by the restrictions on who may be considered a combatant; justify it as self-defense, and the legal landscape looks more risky.

    Leave off the dilemma, we need to legislate.  Quite simply, Counterterrorism is a New Thing.  It requires New Rules.  The specific risk of mass casualty attacks requires that we do things we would not do in traditional law enforcement and not do in conventional war.  Because we want to keep doing the Old Things in law enforcement and war, it behooves us to keep counterterrorism as separate as possible – which is something that can only be done through legislation.

    And It can be done.  It can be done conceptually: we limit and constrain authorization to do those things we need to do in counterterrorism by tying such authorization tightly to proven specific risk of mass casualty attacks.  We do not grant blanket powers.

    It can be done politically.  The next congress is likely to be more friendly to new national security legislation.  The administration is driven by the mind-focusing daily awareness of the dangers facing the country.  An environment for legislating on a broad bottom is in the offing.

    Draft laws, Ken.  Put legislative ideas out there to be criticized and refined.  Almost no one is doing it, and it needs desperately to be done.

  5. Apologies for my presumption in the foregoing post.  It’s not my place to tell you what to do.  Writing while animated, I can get ahead of myself.

  6. Interesting.  How does your theoretical framework fit within the Caroline criteria (or do you reject the application of those criteria to the U.S.)?  In particular, how can the use of drones meet the requirement that the necessity of anticipatory force be “instant, overwhelming, leaving no choice of means, and no moment of deliberation.” (see this 2002 article by professor Byers about the historical roots of the Caroline criteria — http://www.crimesofwar.org/expert/bush-byers.html )

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