Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen. It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks. Here is his
comment at Lawfare; the draft paper is up on SSRN
at this link.
My comments on an initial read? First, I agree with the overall structure of the analysis — the questions and the order of raising them. One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action). This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns — safe havens — gives up its sovereignty and right to territorial integrity to that extent. Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, it seems to me a far more important legal principle in addressing terrorist groups than sovereign consent. The politics and diplomacy of that might be a very different matter, of course.
My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category. However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise as more facts have emerged. In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground. It would in my view be on firm ground either way. However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances.
