Laurie Blank on the Rationales for Targeted Killing

I want to call readers’ attention to a very useful new essay written by Emory’s Laurie Blank, which is forthcoming in the William Mitchell Law Review.  Here is the abstract:

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.

To the best of my knowledge, this is the first essay by an American scholar that carefully distinguishes between the two potential violations of international law involved in an extraterritorial targeted killing: (1) a violation of the attacked state’s sovereignty; and (2) a violation of the attacked individual’s right to life.  As Blank shows, “self-defense” is relevant only to the first violation; contrary to the assertions of the U.S. government and scholars like Ken Anderson — whom Blank cites as an example of the position she is criticizing — whether an extraterritorial use of force is legitimate under the jus ad bellum says nothing about whether the targeted killing legitimately deprives the target of his or her right to life.  The latter question must be determined with reference to the jus in bello (if the targeted killing takes place in armed conflict) or international human rights law (if it does not) — a position recognized more than a decade ago by the International Law Commission, which noted in its commentary to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts that, “[a]s to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct.”

I do, however, have one problem with Blank’s essay: her uncritical acceptance of the idea that self-defence permits the use of extraterritorial force if the attacked state is “unwilling or unable” to prevent a terrorist group from using its territory to launch armed attacks.  In her words, the attacking state must “either act with the consent of the territorial state or on the grounds that the territorial state is unwilling or unable to take action to remove the threat posed by the non-state actor and repel future attacks.”  Blank offers precisely one citation for the “unwilling or unable” test, and that citation will not surprise you: Ashley Deeks’ forthcoming article in the Virginia Journal of International Law.  As I have pointed out before, Deeks not only fails to establish that the “unwilling or unable” test reflects customary international law, she even admits that she found “no cases in which states clearly assert that they follow the test out of a sense of legal obligation.”  It is thus regrettable that Blank offers no other evidence in support of the “unwilling or unable” test.  This is, of course, how mistaken ideas get traction in the academy: one scholar makes an unsubstantiated claim; other scholars cite the first scholar for the unsubstantiated claim, without assessing whether it is correct; and eventually it’s just “common knowledge” that the unsubstantiated claim is, in fact, substantiated.

That quibble aside, Blank’s essay is excellent and well worth a read.  So go read it.