The Necessity of Self-Defence Targeting: To What Extent is there a Clear Normative Framework in International Law?

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The Necessity of Self-Defence Targeting: To What Extent is there a Clear Normative Framework in International Law?

Kio Gwilliam

02 September 2013

Contents

Glossary………………………………………………………………………… 2 Abstract …….………………………………………………………………….. 3 Introduction ……………………...…………………………………………….. 3 The Contributions …………………………..………………………………….. 6 Section One: The Core of the Contributions …………………………….……. 11 Section Two: Normative Characterisation of Context …………………...…..... 14 • How to Classify the Conflict? …………………………………………… 17 • Who may be targeted in a “transnational” NIAC? ………………………. 21 • 2010: A departure from the LOAC? ……………………….…………….. 25

Section Three: The PPG ……………………………………………………….. 27 • ‘First, there must be a legal basis for using lethal force’………………….. 27 • ‘The United States will use lethal force only against a target that poses a

continuing, imminent threat to U.S. persons’…………………………….. 34 • ‘It is simply not the case that all terrorists pose a continuing, imminent threat to

U.S. persons’……………………………………………………………… 38 • ‘An assessment that capture is not feasible at the time of the operation’… 39 • ‘Near certainty that non-combatants will not be injured or killed’……….. 43

Section Four: Conclusion……………………….………………………………. 45 Bibliography…………………………………………………………………….. 47

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Glossary CA3 – Common Article 3 of Geneva Conventions CAAF – Continuous Armed Attack Function CCF – Continuous Combat Function DPAA – Direct Participant in Armed Attack DPH – Direct Participant in Hostilities IAC – International Armed Conflict ICCPR – International Covenant on Civil and Political Rights ICJ – International Court of Justice IPS – International Peace and Security IHRL – International Human Rights Law LOAC – Law of Armed Conflict NIAC – Non-International Armed Conflict PPG – (Presidential Policy Guidance) ‘U.S. Policy Standards and

Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’

TAC – Transnational Armed Conflict UNC – United Nations Charter UNSC – United Nations Security Council

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Abstract

This paper shall explore the doctrinal debate surrounding the contours of an

emerging right to have recourse to “self-defence targeting” under the United Nations

Charter1 as a means to prevent those individuals who reside in safe havens and pose

a ‘continuing, imminent threat’2 of armed attack. The aim is to bring some normative

clarity to the vexing legal grey area that exists between the black letter of

international law and the bloody reality that extraterritorial force is being used by

states against non-state actors. This paper seeks to identify the extent to which two

recent contributions to the doctrinal debate can clarify the normative frameworks,

induce intersubjective consensus on appropriate standards that govern against whom,

where and when a specific individual may targeted and, in the process, vindicate the

rule of law in international affairs.

Introduction

As an exception to the prohibition3 on the use of force in international relations a

trend has been observed that states justify the use of force in self-defence under

Article 51 of the UNC4 ‘in virtually every conceivable circumstance’.5 Whilst states

undoubtedly, by virtue of this ‘inherent right’, determine when there is necessity to

have recourse to force, it is however the ‘duty’6 of the international community to

pass judgment on its lawfulness, that is to ‘determine whether, how far, and for how

long, there was a necessity to have recourse to it.’ 7 Writing in 1970, Franck

acknowledged this trend and presciently remarked that the changing nature of warfare

tends to ‘proceed along two radically different lines, one too small and the other too

                                                                                                               1 Hereinafter:.UNC 2 PPG, 2013, para.6. 3 Article 2(4) - ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ 4 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ 5 Bethlehem, 2004,.para.21. 6 Higgins, 1994,.p7. 7 Lauterpacht, 1933,.p180

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large to be encompassed effectively by Article 51’.8 After a legal appraisal of state

and institutional practice in light of such changes Franck concluded that ‘the

exceptions have overwhelmed the rule and transformed the system’9 leading him,

somewhat prematurely,10 to declare the death of Article 2(4).

In light of recent state practice a variety of the publicists have similarly remarked that

the invocation of Article 51 resembles a ‘ritual incantation of a magic formula’.11

Those states specially affected by XXI century terrorism are attempting to squeeze

their pragmatic square-shaped strategies, through the dogmatic round-shaped

loopholes of what constitutes lawful conduct as enunciated lex lata. This manner of

invoking self-defence has resulted in considerable ‘normative drift’ 12 dimming

hitherto bright lines that helped the international community distinguish sovereign

right from sovereign whim.

In recognition of this drift, Glennon has remarked that ‘[t]he international system has

come to subsist in a parallel universe of two systems, one de jure, and the other de

facto.’13 This paper pins the cause of such normative drift and the ensuing de jure-de

facto divide upon the inadequate juridical appreciation of two paradoxes. Such

paradoxes are prevalent to the contemporary international system and concern the

changing nature of warfare: the individuation of responsibility and safe havens.

The first paradox stems from the fact that conventional practices and the black letter

of the laws of war define and justify the use of force against “the enemy” in terms of

categorical judgments based on status. Under such “status-based” regimes neither the

conduct of the individual at the time lethal force was expended, nor evidence of

previous perpetrations of unlawful conduct, was considered dispositive. Rather it was

his status, as a legislative fact, that determined the de jure necessity of the use of

lethal force against him. In contrast, contemporary warfare is some way along a

trajectory whereby the de facto necessity of the use of force is not determined by

                                                                                                               8 Franck, 1970,.p812 9 Ibid.,p811 10 Henkin, 1971,.p544 11 Gray, 2008,.p119 12 Bethlehem, 2004,.para.21. 13 Glennon, 2002,.p540

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status. Rather, state practice illustrates that ‘[a] tremendous premium immediately

comes to be placed on what we might call “adjudicative facts” – is this the person

who did X? – rather than “legislative facts” – is this person a solider in the opposing

army?’14The practice of self-defence targeting, as a form of counterterrorism, neatly

dovetails this conceptual transformation and is ‘commensurate with a fundamental

condition of justified self-defense, namely, that those killed are responsible for the

threat posed.’15 For such preventive operations it is axiomatic that decisions, as to

whether recourse to force is necessary, involve prospective assessments of conduct

that create a some form of future-oriented fact - is the person likely to do X? Such

operations evidence that there has been a necessity in fact for strategic calibrations to

shift from dealing with ‘traditional status-based attacks to more individuated, threat-

based attacks.’16 Therefore a commensurate doctrinal shift is necessary if the laws of

war are to remain apposite.

The second paradox is, as referred to by Judge Koojimans, ‘the almost complete

absence of government authority in the whole or part of the territory of a State’.17

These are the Hobbesian corners of the Grotian system in which the sovereign

authority, the unit of accountability in international society, is unable or unwilling to

exercise effective governance and discharge its primary responsibility18 for the

prevention of international law-breaking activities on its territory. Safe havens are

juridical sanctuaries created by the fact that, in most instances, recourse to force

against terrorists on such territory neither falls within the de jure scope of the Laws of

Armed Conflict 19 nor feasibly within the de facto reach of law enforcement

operations. Such “lawless zones”, referred to by Israel as ‘terrorist enclaves of

murder’,20 denote a zone that, whilst existing outside active hostilities, de facto

‘possesses some of the same attributes as the zone of active hostilities’.21 The

strategic advantage of this is that, as long as such individuals reside beyond the reach

of lawful counter-terrorism operations, the initiative is ceded to the inherently                                                                                                                14 Issacheroff, 2013,.p8 15 Statman, 2004,.para.20. 16 Op.cit., Issacheroff,.p68 17 Armed.Activities.(Separate.Opinion.Koojimans),.para.30. 18 International.Law.Commission,.2001,.120;.Armed.Activities.(Judgment),.para.179. 19 Hereinafter:.LOAC 20 Israel.Ministry.of.Foreign.Affairs,.2006,.para.3. 21 Daskal,.2013,.p24

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unlawful terrorist. ‘They alone would be allowed to decide where the next

"battlefield" will be’22 thus reaping the benefits of occupying this space between the

de jure-de facto divide.

There is a necessity to reconcile this iniquitous de jure-de facto divide in accordance

with the policy goals of the international community. In implicit recognition of this

divide the UNSC, acting under Chapter VII, has deemed terrorism ‘one of the most

serious threats to peace and security’.23 The UNSC however lacks the institutional

progress to reconcile this divide and authorize counterterrorism operations. Thus,

upon the abdication, by both the territorial sovereign and the UNSC, of their

responsibilities for the prevention of terrorism, responsibility for the maintenance of

IPS falls to victim states under the rubric of self-defence.

The Contributions

The ‘opaque’24 nature of state practice pertaining to the use of force against non-state

actors lends credence to the assertion that the UNC is a paradigm of normative

positivism, ‘it is based on the consent (agreement) of States and not what they (or at

least quite a lot of them) do in practice.’25 It is therefore not so much what states do,

but their opinio juris that informs the content of the law. Such legal interpretations

provide a ‘focal point for the crystallization and stabilization of expectations’26 which,

in the form of intersubjective consensus, comprise the yardsticks for the international

community to discharge its duty in prescribing what states should and should not do.

For decades there has been doctrinal disagreement over whether or not there exists a

right to self-defence against unattributable non-state actors under Article 51. Pre-9/11

normative expectations appeared stable on the restrictive interpretation that there was

no such right. However the twin tower attack cleaved a doctrinal chasm in the

interpretive community. As acknowledged by one commentator this chasm is due to

the fact that ‘neither the existing charter interpretation nor a completely new set of                                                                                                                22 Lewis,.2012,.p16 23 S/RES/1566.(2004) 24 Bethlehem,.2012,.p770 25 Müllerson,.2002,.p5 26 Garrett,.1993,.p2

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rules is either possible or even desirable.’ 27 Thus, lacking a comprehensive

international convention for the prevention of terrorism, the doctrinal debate has been

set exclusively within the framework of customary international. To demonstrate the

ensuing normative drift regard need only be had to the following interpretations: on

the one hand, those who regard 9/11 as a ‘Grotian moment’ whereby ‘customary

international law emerge[d] with unusual rapidity and acceptance’.28 On the other,

those who advocate that what we have seen since 9/11 is nothing more than ‘a

political attitude on the part of the majority of states supporting in one case only the

political aims of one state’29 with minimal impact on international law.

‘With the intention of stimulating debate on the issues’30 , Bethlehem made a

contribution in 2012 in which he expounds sixteen ‘Principles Relevant to the Scope

of a State's Right of Self-Defense Against an Imminent or Actual Armed Attack by

Nonstate Actors’. 31 Bethlehem claims that these principles are based on

intergovernmental discussions ‘away from the public gaze’ that ‘have informed the

practice of states and their appreciations of legality’ and therefore ‘carry particular

weight’.32

A second contribution was made by U.S. State Department Legal Advisor Harold

Koh on May 23rd 2013. This document, entitled ‘U.S. Policy Standards and

Procedures for the Use of Force in Counterterrorism Operations Outside the United

States and Areas of Active Hostilities’,33 has been hailed as a ‘significant step towards

increased transparency’34 and a long awaited clarification of what the U.S. claims to

be the existing legal framework that governs recourse to force against non-state actors

outside active hostilities. The language contained in this document is clearly the

language of obligation. It is therefore submitted that the information enclosed be

                                                                                                               27 Müllerson,.2002,.p32 28 Scharf,.2010,.p439 29 Kohen,.2003,.p22 30 Bethlehem,.2012,.p775 31 Ibid., 32 Ibid., 33 Hereinafter:.PPG 34 Emerson,.2013,.para.2.

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regarded as a direct expression of opinio juris, ‘evidence of a belief that this practice

is rendered obligatory by the existence of a rule of Iaw requiring it’.35

The publication of Bethlehem’s principles and the PPG are attempts to reconcile this

doctrinal chasm ‘between those who favor a restrictive approach to the law on self-

defense and those who take the view that the credibility of the law depends ultimately

upon its ability to address effectively the realities of contemporary threats.’36 As will

become apparent, whilst the content of both Bethlehem’s principles and the PPG

share some key resemblance, the authority of the second contribution exceeds that of

the first. The value of Bethlehem’s principles however, for the purposes of this paper,

is that distinguished members of the interpretive community have already made short

thrift of its veracity as either an expression of the law as it is or, in their opinion, the

law as it ought to be.

What is evident from such rejections is that where one sits in this debate reveals the

ontology of international law that the interpreter subscribes to. Those of the restrictive

school apply a positivist, rules-oriented approach believing, as demonstrated by

Special Rapporteur Alston,37 that due to the adequacy of the law as it existed before

9/11, there is no right to self-defence against unattributable non-state actors under

Article 51. Thus, in order to vindicate the rule of law, those operations that fail to

adhere to law enforcement standards in accordance with International Human Rights

law38 should be castigated as an ‘extrajudicial execution’.39

On the other hand, the expansive school applies a policy-oriented approach. As

demonstrated by Koh, they believe that in light of the paradoxes created by the

changing nature of warfare a restrictive interpretation of international law as it existed

before 9/11 cannot effectively deal with the threats posed by contemporary non-state

actors. Up until 2010, this school of thought exclusively believed that, due to the

legitimacy of Operation Enduring Freedom, ‘inquiries related to allegations

stemming from any military operations conducted during the course of an armed                                                                                                                35 North.Sea.Continental.Shelf,.1969,.para.44. 36 Bethlehem,.2012,.p773 37 Alston,.2010,.para.5. 38 Hereinafter:.IHRL 39 Ibid.,

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conflict with [al Qaeda] do not fall within the mandate of the Special Rapporteur.’40

However it ought to be noted that the Obama administration has subsequently

retreated from this exclusive interpretation of an armed conflict with Al Qaeda, an

issue analyzed in due course.

The rejections of Bethlehem’s principles demonstrate that the debate has been driven

into an interpretive cul-de-sac as ‘lawyers following the restrictive view tend to

invoke formal legal arguments, which are the very same legal interpretations the

expansive lawyers dismissed to support a different policy-oriented outcome’.41 This

notion of an interpretive cul-de-sac raises fundamental questions about the identity,

provenance of the sources of international law and process for the law’s development.

Thus, it is worth briefly parsing these rejections.

O’Connell, of the restrictive school, claims that ‘[i]nstead of addressing

noncompliance by a few, Bethlehem offers to…legaliz[e] practices that today are

violations of international law’42 and that, seeking compliance through such means

amounts ‘addressing the problem from the wrong end.’43 It is upon this notion of

addressing non-compliance from a “wrong end” that the meta-narrative of this paper

shall explore the anarchical ‘conundrum of the sources of international legal

obligation - of law being simultaneously "of" and "above" the state’44 . More

specifically within this conundrum exits the meta-paradox of customary international

law that ‘the only way you can propose an amendment to it is by breaking it’.45 Thus,

in instances where states appear to be prima facie non-compliant it is paramount to

recognize that ‘there is a distinction between non-compliance, on the one hand, and

interpretation infra legem to achieve certain outcomes, on the other.’46 It is submitted

that conduct falling within this latter category, does not constitute the “wrong end”

thus vindicating the rules of customary international law and amending its contents

accordingly.

                                                                                                               40 Ibid.,(quoting.U.S..response,.November.15,.2002) 41 Lorca, 2012,.p93 42 O’Connell, 2013,.p380 43 Ibid., 44 Slaughter,.1993,.p5 45 Goodin,.2005,.p225 46 Higgins,.1994,.p219

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The task of this paper is to distinguish whether the normative frameworks as

enunciated by Bethlehem’s principles and the PPG constitute an interpretation infra

legem or mere non-compliance. To do this, and gauge the requirements of legal

objectivity vis-à-vis political subjectivity in an anarchical society, Koskenniemi’s

conception of international law as a process of constant, principled oscillation

between the concrete and the normative,47 will be utilised. In employing the critiques

of ‘apologist’ and ‘utopian’ this paper shall contest the plausibility of claims for the

legal ideas that govern and ought to govern self-defence targeting against non-state

actors. Through this process of interpretation the paper shall attempt to clarify the

appropriate contours of international law in a manner that reconciles two dichotomous

forces that concurrently shape the normative frameworks of international society,

namely ‘the dead but legitimate hand of the past and the distinctly illicit charm of

progress.’48

This paper is organised into four sections:

1. Section One shall briefly examine the core of the contributions.

2. Section Two shall explore the approach taken by the U.S. up until 2010, namely the

conjecture that the exercise of self-defense against non-state actors ipso facto creates

an armed conflict that triggers ius in bello. It shall be demonstrated that, to reconcile

the de jure-de facto divide created by the paradox of individuated responsibility, a

novel interpretation of direct participation in hostilities 49 successfully gained

normative traction. However the attempt to interpret an aspatial global armed

conflict infra legem, to reconcile the de jure-de facto divide created by the paradox

of safe havens, failed to gain this same traction.

3. Section Three shall analyse the normative frameworks as reflected in the PPG and

Bethlehem’s principles for the exercise of self-defence targeting outside active

hostilities, that is, the conjecture that ‘exercise of jus ad bellum self-defense does not

                                                                                                               47 Koskenniemi, 2005, p17 48 Dworkin, 1998, p348 49 Hereinafter:.DPH

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ipso facto trigger the ius in bello’.50 It shall be demonstrated that the juridical

hurdles that hitherto precluded the lawfulness of self-defence against non-state

actors are losing normative traction, reconciling the de jure-de facto divide created

by the paradoxes of individuated responsibility and safe havens.

4. Section Four shall make concluding observations and submit that Bethlehem’s

principles correctly secured negative intersubjective consensus. Conversely recent

opinio juris by the U.S. injects a healthy dose of normative clarity into this area of

law. It aids reconciliation of the de jure-de facto divide by striking a principled

interpretation between the restrictive and expansive schools of thought thus creating

a focal point to foster positive intersubjective consensus that governs those specially

affected by the threat of armed attacks by non-state actors.

Section One: The Core of the Contributions

In 2004 a U.N. High Level Panel on Threats, Challenges and Change declared ‘[w]e

do not favour the rewriting or reinterpretation of Article 51.’ 51 Fundamentally

however, it appears that both Koh and Bethlehem envisage Article 51 so as to read,

“nothing in the present Charter shall impair the inherent right of individual or

collective self-defence if an armed attack occurs against a Member of the United

Nations. In exercise of such an inherent right individuals shall not be subject to the

use of lethal force unless and for such time as they take a direct part in an armed

attack”. By way of justification for such an assertion, regard need only be had to

Bethlehem’s comment, that ‘[t]he concept of direct participation in [armed] attacks

draws on, but is distinct from, the jus in bello concept of direct participation in

hostilities.’52

To complement this, a footnote in the PPG expounds the following: ‘[n]on-

combatants are individuals who may not be made the object of attack under applicable

international law. The term “non-combatant” does not include an individual who is

part of a belligerent party to an armed conflict, an individual who is taking a direct

                                                                                                               50 Corn, 2012,.p64 51 Para.192. 52 Bethlehem, 2012,.p775

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part in hostilities, or an individual who is targetable in the exercise of national self-

defense.’53 This is an entirely novel suggestion due to the fact that, according to the

law as it exists, a majority of the international community considers that all

individuals are non-combatants outside active hostilities subject exclusively to the

rules of law enforcement, and relevant IHRL. For descriptive purposes, and to avoid

confusion with “combatant” as an in bello term of art, individuals targetable in the

exercise of self-defence shall be termed as direct participants in armed attack.54

In the literature such conceptual conflations have emerged. Paust observes that

‘President Obama stressed that Anwar [Al-Aulaki] was targeted because of what I

would term his direct participation in armed attacks (DPAA) and that such was

continuing.’55 Further, Blank observes that ‘[t]he notion of direct participation in

hostilities is much closer in concept to imminent threat as a standard for targeting in

self-defense’.56 In addition, the declaration in the PPG itself that has received instant

criticism, seemingly in a knee-jerk manner, is that ‘the United States will use lethal

force only against a target that poses a continuing, imminent threat to U.S. persons’.57

The use of the pejorative term “knee-jerk” is intentional. It is submitted that the

locution ‘continuing, imminent threat’ deserves more than a dismissal as a (re-

)incantation of the magic formula as per George W. Bush. The PPG is not attempting

to create a concept of ‘elongated imminence’.58 Instead this paper shall investigate the

veracity of the locution as an attempt to stretch the notion of an “armed attack”.59 This

shall be done by conceptually merging two juridical concepts that have recently

gained normative traction in the “War on Terror”, namely a ius ad bellum “doctrine of

accumulation” and the ius in bello concept of a “continuous combat function”. It shall

become apparent that upon merging these two concepts it is becoming more difficult

to deny the lawfulness of self-defence targeting an individual who poses a

‘continuing, imminent threat’ outside active hostilities.

                                                                                                               53 Op.cit.,PPG, p1 54 Hereinafter: DPAA 55 Paust response to Hernandez, 2013, p1 56 Blank, 2012, p1695 57 Op.cit.,PPG 58 Heller, 2013, para.2. 59 Gray, 2008, p165

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In response to such a conceptual merger of ad bellum and in bello one commentator

has observed of Bethlehem’s principles that ‘he does not appear to be reflecting an

established understanding of international law.’60 Indeed, the distinction between ad

bellum and in bello has recently been confirmed as ‘a bedrock principle’61 of the law

of war. However, in bypassing conventional practice, terrorism has blurred the

canonical distinctions between war and peace, military and law enforcement,

combatant and civilian, status and conduct. Neither an ad bellum concept of self-

defence against non-state actors nor an in bello concept of DPH exists that is of

sufficient determinacy to be proclaimed “an established understanding”. Bethlehem

and the PPG pick up the mantle of the expansive school that, given the ‘questionable

viability of applying traditional legal classifications’62 under ad bellum and in bello,

‘[w]e’re going to have to pick elements from each, and then craft the reconstructed

model to fit the facts of the case.’63

Therefore, to recognize the value of the contributions made by Bethlehem and the

PPG one must subscribe to the ontology that ‘international law is not rules, it is a

normative system’.64 The conception of international law as ‘a continuing process of

authoritative decisions’65 permeates the argument of this paper. It is submitted that,

contrary to the opinion of the rules-oriented school, when an erstwhile articulation of

the law no longer serves the interests of the international community then prima facie

non-compliant practice in accordance with a reconstructed model ‘does not contradict

law so much as it informs law as to the global community’s normative

expectations’.66 To understand the normative appeal of such models, the elements

picked from in bello and ad bellum must be analyzed in the context in which they

arose. That is what shall now be done.

                                                                                                               60 Rona, 2013, p387 61 Prosecutor v. Fofana & Kondewa, 2007, para.529. 62 Ben-Naftali, 2003, p238 63 Wedgewood, 2004, p847 64 Higgins, 1994, p1 65 Higgins, 1968, p58-9 66 Schmitt, 2002, p55

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Section Two: Normative Characterisation of Context

Since the time of Grotius international law has been organised around two contrasting

contexts: war and peace. There is however no litmus test67 for determining where one

begins and the other ends. In the context of the ‘War on Terror’ the distinction

between war and peace has led to considerable normative drift. As Ben-Naftali

elucidates ‘understanding…this context is crucial from the perspective of the rule of

law because the applicable law by which the legality of the policy of targeted killings,

or lack thereof, will be determined depends upon the normative characterization of the

context.’68

A cornerstone of the peacetime rules of law-enforcement is that states are obligated to

use lethal force only on a conduct-based assessment of individual responsibility and,

in a temporal sense, as a last resort. It is perceived as dogma by the restrictive school

that the same obligation is incumbent upon states under ius ad bellum. Such

conditions stem from the Caroline incident which, contrary to popular opinion, was a

case of extra-territorial law-enforcement, not anticipatory self-defence. 69 In its

political correspondence, the U.S. articulated a set of requirements that it felt ought to

govern the use of lethal force by one state, exclusively against non-state actors,

‘within the territory of a power at peace.’70 The adage to be taken is that ‘at peace,

nothing less than a clear and absolute necessity can afford ground of justification’.71

Further, the means employed are justified only when the ‘necessity of that self-

defense is instant, overwhelming, and leaving no choice of means, and no moment for

deliberation’72 and that the ‘necessity of self-defence, must be limited by that

necessity, and kept clearly within it.”73

As far as the restrictive school is concerned the principled position is that terrorists

commit crimes in a peacetime context subject to the rules of law enforcement. This

                                                                                                               67 Berman, 2004, p1 68 Ben-Naftali, 2003, p239 69 Dinstein, 2005, p274 70 Treaties and Other International Acts of the Unites States of America, 1934, p446 (Quoting Letter from Webster.) 71 Rogoff, 1990, p447 (Quoting Letter from Webster to Fox) 72 Jennings, 1938, p89 73 Ibid.

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position is reflected by the reservation of the U.K. to Additional Protocol I of the

Geneva Conventions that precluded the application of the LOAC to acts of

terrorism.74 However the principled nature of this approach is refutable given that Al-

Qaeda was, ‘at the time of the 9/11 attacks, already the target of a massive

international law enforcement effort.’75

As far as the expansive school is concerned, when confronted with terrorist

organizations that ‘have military capabilities that exceed those of states’,76 principles

of law enforcement are utopian in their inadequacy. The characteristic that separates

this school from the rest of the interpretive community is that they feel the methods of

counterterrorism ought to reflect the sui generis temporal nature of the threat, given

that ‘the uncertainty refers to time and place of the attack, not to whether an attack

will occur.’77 Accepting the futility of deterrence, against which the incentive to pre-

empt threats could be offset, Webster’s’ requirements are considered ‘so abstractly

restrictive as almost, if read literally, to impose paralysis”.78 To satisfy such

customary requirements of ad bellum necessity against terrorists would render the

inherent right to self-defence meaningless.

Following the occurrence of the 9/11 attacks however the normative context in which

the majority of counter-terror operations took place were characterised as war. The de

facto necessity for the use of force was recognised as legitimate throughout Operation

Enduring Freedom as a generation of lawyers on both sides of the interpretive chasm

accepted that this self-defence operation ipso facto triggered the LOAC, thus ‘ius ad

bellum ceases to be relevant and ius in bello takes control.’79 The LOAC provided the

authority to use lethal force in first resort ‘to prevent and deter further attacks on the

United States’80 and ‘to avert the continuing threat of attacks from the same source’.81

As long as such threats emanated from “active hostilities” in the territory of

Afghanistan Webster’s requirements seemed lawfully circumvented. Due to the

                                                                                                               74 Reservation of the United Kingdom, 2002. 75 Schmitt, 2002, p28 76 Targeted Killings Case, 2006, Judgment para.21. 77 Schmitt, 2012, p83 78 McDougal, 1961, p217 79 Greenwood, 1983, p221 80 UN Doc S/2001/946 81 UN Doc S/2001/947

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successes of this operation however, the Taliban and Al-Qaeda scattered across the

territorial boundaries of Afghanistan and sought refuge in safe havens “outside active

hostilities”.

‘[M]ost uses of force, no matter how brief, limited, or transitory, do violate a state’s

territorial integrity.’82 Thus, unless there is state consent83, fiat of the UNSC or a

separate case of legitimate self-defence then the peacetime proscription of the use of

force under Article 2(4) functions as a means to prevent the precipitous spread of

“active hostilities”. However, as far as the U.S. policy was concerned, the de facto

necessity remained to target those individuated with responsibility for international

law-breaking conduct in first resort, irrespective of geographic location. An erstwhile

articulation of international law that recognised this necessity did not exist, for

consensus abounded that outside active hostilities, pre-emption was inherently contra

legem. 84 For international law to remain apposite a normative framework was

required, the black letter of which would plausibly accommodate an interpretation of

such a policy infra legem. The policy orientation of the two U.S. administrations of

the last decade has been pithily articulated by Brennan ex post, that ‘[t]he United

States does not view our authority to use military force against al-Qa’ida as being

restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an

armed conflict with al-Qa’ida…we have the authority to take action against al-Qa’ida

and its associated forces without doing a separate self-defense analysis each time...’85

As far as any notion of lawfare was concerned an interpretation of in bello had been

deployed to circumvent the strictures of ad bellum.

Doctrinal debate has raged for a decade over whether this “armed conflict with Al-

Qa’ida” is legally cognizable, with the corollary question being which regulatory

framework for the conduct of hostilities applies? The juridical significance of asking

such questions is that it determines the applicable norms to regulate who may be

targeted, when, where and how much targeting may be done.

                                                                                                               82 Higgins, 1994, p240 83 Gray, 2011, p12 - ‘In practice, the argument that targeted killings are justified on the basis of territorial State consent is not clearly invoked by the United States’. 84 AG Lord Goldsmith, 2004, column 370. 85 Brennan, 2011.

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How to classify the conflict?

Under ius in bello what constitutes “inside active hostilities” is determined by conflict

classification. The orthodox approach is to firstly assess whether an armed conflict

exists and then determine which normative framework applies, either an International

Armed Conflict 86 or a Non-International Armed Conflict. 87 For reasons of

succinctness ‘[i]t is indisputable that an armed conflict is international if it takes place

between two or more States’.88 Thus, unless the armed attack of a terrorist group can

be attributed to a state, no IAC can be deemed to exist between a victim state and the

non-state actor. Conversely, the normative frameworks for dealing with a NIAC are

implicitly limited to the territory of one contracting Party. Common Article 3 refers to

an ‘armed conflict not of an international character occurring in the territory of one of

the High Contracting Parties’ and Article 1(1) of Additional Protocol II speaks of an

armed conflict ‘which take[s] place in the territory of a High Contracting Party’.

In addition to these territorial requirements a NIAC is only triggered upon the

satisfaction of various de facto predicates, namely the occurrence of armed violence

between a state and an organised armed group that reaches a certain level of intensity

and protraction.89 The instruments of LOAC have been finely tuned to address the

factual constellation in which armed violence between a state and non-state actor and

an internal armed conflict are synonymous. However a number of recent conflicts

such as Israel in Lebanon 2006, Colombia in Ecuador 2008 and Turkey against the

PKK in Northern Iraq evidence that such a factual constellation no longer exists.

These conflicts are neither inter-national nor are they geographically limited to the

territory of the State who is a party to the conflict. From this it is evident that a de

jure-de facto divide exists whereby the in bello binary for classifying contemporary

armed conflicts is prima facie under-inclusive.90 In light of this under-inclusivity

there is a strong case for deeming that a restrictive interpretation suffers from serious

normative flaws simply due to the fact that the policy objectives that precipitated the

prescriptions of the Geneva drafters cannot have anticipated the prevailing state of

                                                                                                               86  Hereinafter:.IAC  87  Hereinafter:.NIAC  88 Prosecutor v Tädic, 1999, para.84. 89 Prosecutor v. Tädic, 1995, para.70. 90 Corn, 2012, p61

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XXI century affairs.

The relevance of this is that the de facto predicates that trigger the application of

NIAC in effect creates the paradox of a safe-haven. Lawful counter-terror operations

neither fall within the de jure scope of LOAC nor feasibly within the de facto reach of

law enforcement operations. This poses the perplexing ‘question in whose favour

does asymmetry really work if terrorists do not feel bound by the law?’91 A

reconciliation of this divide was required, an interpretation infra legem, so as to

achieve a community goal that does not protect and cede a strategic advantage to the

inherently unlawful.

Some proposed, lex ferenda, the juridical recognition of a new model, a “transnational

armed conflict”, 92 that is trans-border but between a State and non-state party without

the de facto predicates of intensity and protraction. The more appealing reconciliation

for the majority however is instead to squeeze, what is in descriptive fact, a TAC

through the NIAC normative framework since ‘[t]he rules of non-international armed

conflict are precisely designed for conflicts in which one of the parties is a non-state

actor’. 93 This de jure squaring of a de facto circle is done by an expansive

interpretation of CA3, based on the fact that textually CA3 ‘does not prevent a non-

international armed conflict from straddling more than one State’.94 This approach

regards the party-structure interpretation of the conflict as dispositive in its

classification, not the geographic fact that international borders are crossed.95

Two crucial points must be borne in mind when one interprets away the application of

peacetime normative frameworks and supplants them with the LOAC. Firstly,

targeting authority under the LOAC “in no way requires manifestation of actual threat

to the attacking force.”96 This means that, there is absolutely no requirement for a

demonstration of necessity, i.e. neither imminence nor the exhaustion of less injurious

                                                                                                               91 Guiora, 2010, p22 92 Corn, 2009, p46,.Hereinafter:.TAC 93 Wilmshurst, 2012, p440 94 Ibid.,p72 95 Targeted Killings Case, para.18. 96 Corn, 2012, p15

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means,97 before a lawful military objective can be targeted. Thus both constitutive

parts of the IHRL entitlement not to be lethally targeted in first resort are forfeited.

Secondly, an additional set of rights is lost, those of the persons who qualify as

“incidental harm”. The LOAC legitimizes proportionate conduct in which the harm to

civilians is not ‘excessive in relation to the concrete and direct military advantage

anticipated.’ 98 The normative yardsticks of IHRL contemplate no such lawful

conduct. Given that the teleological purpose of LOAC and IHRL is to minimise the

harm to innocent civilians it is therefore implicitly required that areas of “active

hostilities”, where LOAC is triggered, be defined narrowly. This is exactly what the

restrictive school of thought persistently advocated.

The policy that precipitated the U.S. administrations pursuit of a de jure ‘Global War

on Terror’99 was to interpret away such an implied ‘legal geography of war’100 so as

to plausibly reconcile the de jure-de facto divide created by the paradox of terrorist

safe havens. This would justify recourse to lethal force in first resort against

individuals who dwelled beyond feasible application of the rules of law enforcement.

The U.S. Supreme Court decision in Hamden provided such authority.

The tenet of the U.S. argument before the Court was reminiscent of the discredited

positivism of the Lotus principle, namely that which isn’t illegal is legitimate.101 The

U.S. postulated that it was involved in an IAC but, due to the textual under-inclusivity

of the Geneva Conventions, ‘[i]f an armed conflict…does not fall within the

Convention, the Convention simply does not regulate it.’ 102 Thus it appears,

understandably, that the policy that precipitated the Courts prescription was that

unless CA3 applied no normative framework would regulate the conduct of hostilities

against Al-Qaeda.

                                                                                                               97 Parks, 2010, p797 98 Additional Protocol I to the Geneva Conventions, 1977, Article 51(5)(b) 99 White House, 2006, para.2. 100 Anderson, 2011, p14 101 S.S.Lotus,.1927,.p21 102 Hamdan v Rumsfeld, 2006, p26

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Accordingly, the Court declared the U.S. “war” with Al-Qaeda a ‘conflict not of an

international character’,103 but then asserted that a NIAC, to which the privileges of

CA3 applied,104 was automatically triggered residually from an IAC. This decision

has been regarded by the majority of the interpretive community as erroneous, based

on its complete neglect that ‘while it is true that non-international armed conflict can

exist across State borders, and indeed often does, that is only one of a number of

cumulative factors that must be considered for the objective existence of an armed

conflict.’105 Hamden never actually investigated whether the de facto predicates were

satisfied, by virtue of mere judicial fiat, the existence of an armed conflict was simply

assumed,106 the normative framework of CA3 was recognized as applicable and

LOAC targeting privilege could ‘spring up’107 wherever members of Al-Qaeda could

be found, irrespective of intensity, protraction or geographic location. Unsurprisingly,

the Bush ‘Administration read the Hamdan decision to accept that the US is in an

armed conflict – and therefore that the laws of war are appropriate to apply’.108

Such de facto predicates were the very reason that led the International Law

Association in 2008 to deny the normative characterization of counter-terror

operations as armed conflicts.109 In interpreting away the implied geography and de

facto predicates of a NIAC, Hamden raised perplexing juridical questions concerning

the geographical disjunction between active hostilities and what constituted direct

participation therein. Indeed, as O’Connell remarked, this was problematic because

‘[t]he idea of the theater of war or combat zone is closely tied to our thinking

regarding who is a combatant.’110 The practical effect is that wherever the adversary

goes the LOAC goes with them as ‘[t]here is no necessary correlation between the

area where the actual fighting is taking place and the geographical reach of the laws

of war’.111 In determining against whom the U.S. was actually fighting in this armed

                                                                                                               103 Ibid., para.631. 104 Ibid., 105 Alston, 2010, p18 106 Dehn, 2011, p197 107 Corn, 2012, p59 108 Bellinger, 2007, para.4. 109 ILA, 2008, p2 110 O’Connell, 2009, p118 111 Kunarac Appeal Judgment, 2002, para.57.

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conflict, however, another de jure-de facto divide became apparent. The U.S. lacked a

prima facie adversary as a matter of legislative fact, the issue to which we now turn.

Who may be targeted in a “transnational” NIAC?

When addressing the contours of a right to self-defence against non-state actors the

question as to which individuals constitute legitimate targets under the LOAC is

reduced to an interpretation of the terse expression ‘unless and for such time as they

directly participate in hostilities’.112 The indeterminacy of this customary norm is

illustrated by the fact that there is no treaty definition; ‘it has been left open to States’

own interpretation–which States have preferred not to make public’;113 and thus ‘a

clear and uniform definition of direct participation in hostilities has not been

developed in State practice’.114 What is certain is the fact that upon a restrictive

interpretation of this in bello expression, which constituted the majority interpretation

until 2006, ‘the right of self-defence under Article 51 of the UN Charter following an

armed attack by a terrorist group may become meaningless’.115 Again, terrorists

benefited from occupying the space between the de jure-de facto divide. This has

been dubbed elsewhere as ‘reversed conflation’116 and is a clear-cut example of, what

Franck would call, a conflict that is too small for Article 51. It demonstrates the

dialectic nature of the frameworks of ad bellum and in bello, how an interpretation of

one informs the legal parameters of the other. What is created is an ostensible conflict

of norms between the two frameworks that ‘cannot be solved by further rule-

application.’117 Indeed, the ILC118 draft articles expound that self-defence does not

preclude the wrongfulness of LOAC and IHRL violations, yet Article 103 UNC

suggests that the conflict would be resolved in favour of self-defence.

Such a norm conflict is reminiscent of the ICJ’s issuance of a non-liquet when it was

confronted with a form of warfare ostensibly too large for Article 51. To adapt the

                                                                                                               112 Op.cit.,Additional Protocol I, Article 51(3) 113 Alston, 2010, p19 114 ICRC, 2009, p23 115 Kretzmer, 2005, p193 116 Lorca, 2012, p75 117 Ibid.,p76 118 ILC Draft Articles, 2001, p74

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Courts sentiments119 it appears that upon a restrictive interpretation of DPH “self-

defence against non-state actors would generally be contrary to the rules of

international law applicable in armed conflict. However it cannot be concluded

definitively whether recourse to self-defence against non-state actors would be lawful

or unlawful in an extreme circumstance of self-defence”. The notion of self-defence

under Article 51 is premised on the existence of a prima facie perpetrator as a

legislative fact. However, when the exercise of this right ipso facto triggers ius in

bello the lacuna emerges that, in a NIAC with non-state actors, victim states lack a

prima facie adversary against whom targeting would be categorically lawful.

Targeting is based exclusively on the adjudicative facts of individual conduct that

constitutes DPH.

In considering how to resolve such a conflict of norms, and reconcile this de jure-de

facto divide, the Targeted Killings judgment of the Israeli Supreme Court is

informative. The Court set out to remedy the legal paradox of “unlawful combatants”

who persistently violated LOAC by their DPH but then benefited from the restrictive

interpretation of “for such time” by passing through a conceptual revolving door that

reinstated full civilian protections. 120 Up until 2009 the ICRC regarded ‘the

“revolving door” of civilian protection [a]s an integral part, not a malfunction, of IHL.

It prevents attacks on civilians who do not, at the time, present a military threat’.121

This is where the analogy drawn by Blank at the beginning of this paper comes into

play. A restrictive interpretation of the temporal aspect “for such time” closely

resembles the Websterian notion of an imminent threat as a prerequisite for lawful

targeting based on the adjudicative fact of unlawful conduct. Moreover, in the view of

the ICRC, irrespective of the clear indications that the individuals repeated

participation was in fact part of a pattern of conduct, the position was that such

indications did ‘not allow a reliable prediction as to future conduct.’122 To this

paradox Dinstein reflects the view of the majority of the interpretive community,

stating that ‘a person is not allowed to wear simultaneously two caps: the hat of a

                                                                                                               119 Nuclear Weapons Advisory Opinion, 1996, Operative paragraph 2E 120 Parks, 1990, p118 121 ICRC, 2009, p70 122 Ibid.,

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civilian and the helmet of a soldier’.123 It creates a legal inequality to the detriment of

effective counter-terror operations and the protection of bona fide civilians.

As long ago as 1863 Lieber suggested that in order to close this door of protection

‘the preceding hostile activities deprived these individuals of protection on a

continuous basis.’124 In 2006 such a category of “unlawful combatant” did not exist,

however, as the Israeli Supreme Court elucidated, ‘new reality at times requires new

interpretation.’125 Given the contemporary saturation of the battlefield with such

individuals the Court declared that unlawful combatants are those that ‘take active

and continuous part in an armed conflict, and therefore should be treated as

combatants…the rest between hostilities is nothing other than preparation for the next

hostility’.126

The ICRC confirmed this approach in 2009 as a principled oscillation between

apology and utopia in light of the empirical fact that, in terms of the threat posed,

such civilians are ‘approximate equivalents’127 to a state’s armed forces functioning

beyond the purview of feasible law enforcement standards. Similarly, Melzer justifies

the military necessity of attacking them based on the adjudicative fact of their

previous not just present conduct, and that their future threatening conduct can also be

legitimately presumed since each individual is ‘a de facto member assuming a

continuous combat function.’128 This concept of a continuous combat function129 has

gained significant normative traction despite counter-claims by Alston. He argues that

the concept is status-based rather than the conduct-based at the time of targeting, thus

threatening to eviscerate the right to life.130 However, as the Israeli Court clarifies the

‘[f]unction of the individual determines the directness of the part taken in hostilies’131

not his status. 132 Accordingly an accumulation of adjudicative facts creates a de facto

                                                                                                               123 Dinstein, 2004, p35 124 Boothby, 2010, p744 125 Op.,cit.Targeted Killings, para.28. 126 Ibid.,para.39 127 Melzer, 2008, p317 128 Melzer, 2010, p851 129 Hereinafter: CCF 130 Alston, 2010, para.65. 131 Op.cit.,Targeted Killings, para.35. 132 Wilmshurst, 2012, p107

  24  

function as a matter of quasi-legislative fact from which a threat can be presumed and

civilian protection lost ‘until he unambiguously opts out through extended

nonparticipation or an affirmative act of withdrawal’.133

The quasi-legislative presumption of such threat, based on function, is not limited to

individuals at the tactical level. Crucially, the Israeli Court deemed that "direct part,"

and the attendant loss of permanent protection, should be extended to ‘[t]hose who

have sent him…who decided upon the act, and the person who planned it.’134

Similarly, as expert witness Solis recently quoted in Gherebi v. Obama, ‘senior

terrorist leaders and terrorist weapons specialists and fabricators should be considered

to continually be taking a direct part in hostilities’135. To overcome the norm conflict

between ad bellum and in bello, and an absurdly restrictive interpretation of DPH that

is out of touch with operational realities, it is clear that, as far as it feels obligated in

bello, ‘[t]he U.S. would take repeated participation into account in determining

whether the individual is in fact continuously engaged and thus loses protection on a

continuous basis.’136

The costs of reconciling the de jure-de facto divide of the LOAC in favour of the state

invoking self-defence, by removing firstly, the implied geography of war, secondly,

the de facto predicates and thirdly, closing the revolving door of protection by

stretching the temporal understanding of DPH, are numerous. As Kretzmer points out,

‘this licence create[s] an incentive for victim states to jump as soon as possible from

the law-enforcement to the non-international armed conflict model, thus allowing

them to ignore due process guarantees and to enjoy almost unrestricted discretion in

targeting their suspected enemies’. 137 For Eichensehr, the restrictive temporal

requirement of DPH is more than ‘merely a timing issue rather [it is] an evidentiary

matter.’ 138 Such a requirement operated analogously as an in bello variant of

imminence, whereby ‘no choice of means and no moment for deliberation’139

                                                                                                               133 Schmitt, 2008, p525 134 Schmitt, 2004, p529 135 Gherebi v. Obama, 2009, Declaration of Gary D. Solis para.6(g). 136 Boothby, 2010, p758 137 Kretzmer, 2005, p200 138 Eichensehr, 2008, p1877 139 Op.cit.,Webster.

  25  

provided an evidentiary yardstick for the absolute necessity of killing prima facie

civilians. Such an evidentiary function140 protects, not only the suspected terrorist

from incorrect identification but also protects innocent civilians. These civilians, but-

for the ascription of CCF to a terrorist and the attendant permanent application of the

LOAC, would never be considered lawful collateral damage under IHRL.

Fundamentally it comes down to a policy tradeoff positing minimal “collateral harm”

and the evidentiary benefits of a temporal nexus against the goal of reducing the

strategic advantage granted by the black letter of the law to the inherently unlawful

adversary. The Court, the ICRC and the prevailing practice of specially affected states

demonstrate that the pendulum of positive intersubjective consensus has swung in

favour of the latter. In the process, where the exercise of self-defence against terrorists

ipso facto triggers LOAC, such states enjoy ‘a low evidentiary safe haven to justify

targeted killings’.141

2010: A departure from the LOAC?

It has steadily become apparent that ‘[n]ot all U.S. counterterrorism measures fit

within the confines of this armed conflict, however, with the result that many of the

U.S. targeted strikes over the past several years may well fit more appropriately

within the self-defense paradigm.’142 This is due to the fact that the adjudicative acts

of the specific individuals being targeted lack a belligerent nexus to “active

hostilities”.

In 2010 a case was brought before a U.S. Federal Court against the Obama

Administration on behalf of Al-Aulaki. It is clear that the determinant upon which his

case rested, as to whether lethal force could be used in first resort under LOAC or in

last resort under IHRL, was where Al-Aulaki was not who he was. Indeed, in an 11

page document presented to the Court the phrase “outside of armed conflict” appears

17 times.143 At the time of his killing Al-Aulaki resided in the Shabwa province of

Yemen. Consensus has crystallized around the fact that in this safe haven hostilities

                                                                                                               140 Cassese, 2003, para.12. 141 Eichensehr, 2008, p1877 142 Blank, 2012, p1676 143Aulaqi v. Obama, 2010, Complaint of Plaintiff.

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were nowhere near the requisite de facto thresholds of protraction and intensity,144 as

required lex lata, to qualify as a local NIAC thus triggering the application of

LOAC.145 The application of LOAC then residually fell to be determined whether

there was a sufficient nexus between Al-Aulaki’s activities and the ongoing de jure

armed conflict in Afghanistan (and de facto parts of Pakistan due to “spillover”146 that

legitimated the killing of Osama bin Laden). The U.S. official argument was that Al-

Aulaki was ‘either part of al-Qaeda, or is an associated force, or cobelligerent, of al-

Qaeda that has directed attacks against the United States in the NIAC between the

United States and al-Qaeda’.147 The absence of an explicit reference to demonstrate a

belligerent nexus between Al-Aulaki’s conduct and the “active hostilities” in either

Afghanistan 148 is considered dispositive by the majority of the international

community. The context was normatively characterized as peace thus excluding the

applicability of LOAC yardsticks to the targeting of Al-Aulaki.

The case of Al-Aulaki substantiates the principled view, that ‘[t]here has long been a

consensus outside the US legal academia that IHL is inappropriate to regulate the

fight against terrorism, outside specific situations where armed hostilities actually

occur and have a certain level of intensity, as in Iraq or Afghanistan.’149 In response

to such negative intersubjective consensus the Obama Administration has changed

tune. Instead it has pronounced that “[w]e must define our effort not as a boundless

‘global war on terror,’ but rather as a series of persistent, targeted efforts....’150 In

retracting the interpretation of a “global NIAC” the legal paradox of terrorist safe

havens beyond the reach of lawful counterterrorism operations re-emerges. The new

tact to deal with this paradox is evident in the declaration of the PPG that it may make

the following individuals the object of attack: ‘an individual who is taking a direct

part in hostilities, or an individual who is targetable in the exercise of national self-

defense.’151 Thus, counter-terror operations are now justified on alternate grounds.

                                                                                                               144 Ramsden, 2011, p390 145 Dehn, 2011, p183 146 Daskal, 2013, p27 147 Al-Aulaqi v Obama, 2010, Opposition to Plaintiff’s Motion for Preliminary Injunction. 148 Op.cit.,Dehn, p198 149 Milanovic, 2010, para.4. 150 Obama’s Speech on Drone Policy, 2013. 151 Op.cit.,PPG

  27  

The first ground applies when an individual has a belligerent nexus to active

hostilities that satisfy the de facto predicates that trigger CA3. Alternatively the

second ground exists under the rubric of Article 51 and applies to those,

conceptualised as DPAA’s, outside active hostilities who pose a ‘continuing,

imminent threat.’

Bethlehem’s principles and the PPG, rebut the presumption that the exercise of ius ad

bellum self-defense ipso facto triggers ius in bello. Anderson, one commentator who

lauds the PPG notion of self-defence targeting, emphasises that this is the whole point

of the endeavour; ‘each of these operations is planned and executed in ways that, if

the operation goes as intended, will never reach the level of any of those criteria’152

required to trigger the LOAC. In light of this it is anticipated that the U.S. shall retreat

from LOAC and henceforth prevent threats that emanate “outside active hostilities”

exclusively through the means of self-defence targeting under the PPG. However,

does the fact that the PPG applies outside active hostilities mean that individuals are

protected by the revolving door of Websterian imminence? Or can the normative

traction gained on the notion of protection being lost on a quasi-permanent basis by

individuals with a CCF be interpreted infra legem under an ad bellum variant?

Section Three: The PPG

This section shall be structured in a manner using each of the pertinent parts of the

PPG as subheadings.

‘First, there must be a legal basis for using lethal force…’

The juridical hurdles of the restrictive school, that hitherto precluded the lawfulness

of self-defence against non-state actors, are losing normative traction. In the process

of this transformation the opportunity is being crafted for an “accumulation doctrine”,

an ad bellum variant of a CCF, to reconcile the de jure-de facto divide created by the

paradoxes of individuated responsibility and safe havens. Thus, it appears plausible,

lex lata, to interpret the aim of self-defence targeting as expounded by the PPG, ‘to

                                                                                                               152 Anderson, 2011, p6

  28  

prevent or stop attacks against U.S. persons,’153 infra legem.

From the outset the PPG must be distinguished from the views of some of those on

the expansive side of the interpretive chasm. Anderson has persistently advocated that

where threats emanate from “outside active hostilities” the invocation of ‘naked self-

defence’,154 comprising nothing more than ad bellum necessity and proportionality,

sufficiently precludes the wrongfulness of lethally targeting a specific individual. This

interpretation evidences an imperfect interpretation of Article 51. To demonstrate this,

one commentator posits a simple question: ‘what is the actual wrongfulness that is

being precluded with self-defense, and can self-defense even conceivably do it?’155

For conceptual clarity in answering this question it is assumed arguendo, that human

rights apply extraterritorially.156 Thus when any individual is targeted by a state

“outside active hostilities” two distinct acts are committed that constitute wrongful

conduct and, unless two distinct necessity tests are satisfied, will incur liability under

state responsibility. The first is the necessity of the use of force and the attendant

violation of territorial sovereignty prohibited under Article 2(4). The second is the

necessity of the use of lethal force and the violation of the right to life as enunciated

in the relevant human rights treaty. It is submitted that ‘naked self-defence’ can only

preclude the wrongfulness of the former violation. This separation of ius ad bellum

and IHRL is explicitly endorsed by the draft articles on state responsibility when it

states 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.’157

Having made that conceptual clarification it must be noted however that an

underlying assumption that rationalized the (successful) restrictive interpretation of a

“legal geography of war”, whereby LOAC could not supplant the applicable IHRL

norms “outside active hostilities”, was that IHRL was even applicable

extraterritorially. Melzer has expanded upon this questionable assumption advocating

                                                                                                               153 Op.cit.,PPG, para.4. 154 Anderson, 2011, p8 155 Milanovic, 2010, para.8. 156 The Wall Case, 2004, para.109. 157 Op.cit.,ILC, p74

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that ‘sufficient factual control or power to carry out a targeted killing’158 triggers the

jurisdictional application of IHRL standards. However the unprincipled nature of this

standard is cogently demonstrated by the U.S. position. This position has persistently

been 159 that, as evidenced by the terms of its travaux preparatoire 160 , ‘[t]he

conjunctive reference both to a state’s “territory” and to its “jurisdiction” plainly

implies that the ICCPR is not extraterritorially applicable’161. Furthermore, and

contrary to Melzer, in the context of extraterritorial targeting there is considerable

support from the Courts of comparable human rights regimes162 that only effective

control over the individual triggers the application of IHRL.

However, crucially to the argument of this paper it is submitted that, to bridge the

interpretive chasm and ensure that Koh’s reconstructed model of self-defence

targeting fosters positive intersubjective consensus, the PPG makes an unprecedented

concession. It blurs the use of interstate force with the use of interpersonal force by

the inclusion of what can only be described as, a human rights-inspired, less-injurious

means test. However, to retain conceptual clarity they shall be kept separate for now

and the use of inter-state force shall be dealt with first.

In support of the restrictive position that Article 51 remains exclusively inter-state, an

appropriate departure point is the ICJ pronouncement in 2005 that ‘Article

51…recognizes the existence of an inherent right of self-defence in the case of armed

attack by one State against another State’.163 The Court however then proceeds to

distinguish the case at hand noting that, as the threat originates from occupied

territory over which ‘Israel exercises control…[t]he situation is thus different from

that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001).’164

By implication this shrouds Operation Enduring Freedom in legitimacy and seems to

support the school of thought claiming that the right to self-defence, following 9/11,

has been expanded in principle. However the juridical significance of UNSC practice

                                                                                                               158 Melzer, 2008, p138 159 U.N. Doc. CCPR/C/21/Rev.1/Add.13, 2004, p10 160 Dennis, 2005, p124 161 Delahunty, 2010, p323 162 Banković, 2001, para.75; R (On the Application of Al-Skeini), 2007, para.109. 163 Wall Advisory Opinion, para.139. 164 Ibid.,

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pertaining to the legitimation Operation Enduring Freedom remains ambiguous.165 In

light of this, what shall be assessed is the veracity of a moderate statement, that ‘in

contrast to where the law stood in 1986…it is a ‘fair’ today that self-defence may be

invoked against non-state actors.’166 To understand this inference it is necessary to

understand what, in 1986, would have precluded lawful recourse to self-defence

against such actors.

From UNSC practice it can be deduced that, preceding 9/11, self-defence against

unattributable non-state actors was categorically unlawful.167 The high-water mark

was the Israeli attack on Tunis in 1985. By a vote of 14-0-1 UNSC Resolution 573

‘condemn[ed] vigorously the act of armed aggression perpetrated by Israel against

Tunisia in flagrant violation’ of international law. This consensus was due to three

seemingly insurmountable de jure thresholds that precluded a demonstration of the

necessity for self-defence against non-state actors. Firstly, the ICJ’s imposition of an

attribution standard meant that, in effect, self-defence was only justified ‘if an armed

attack by another State occurs’.168 Secondly the Court considered it ‘necessary to

distinguish the most grave forms of the use of force (those constituting an armed

attack) from other less grave forms’.169 Thirdly the use of force in self-defence was

limited by a ‘functional argument’170, that is, the only legitimate aim of self-defence

was to ‘halt and repel’171 an armed attack. These juridical hurdles shall briefly be

taken in turn and the continuing authority of the law’s prescriptions shall be tested

against contemporary opinio juris, state practice and the factual constellation

prevailing in international affairs.

Firstly, it appears that following Operation Enduring Freedom two interpretations are

possible to justify the violation of a sovereign states’ territorial integrity. One

explanation is that of the restrictive school that, as expounded in Nicaragua172, Article

                                                                                                               165 Myjer, 2002, p7 166 Johnstone, 2005, p370 167 Gazzini, 2005, p191 168 Tams, 2009, p369 169 Nicaragua, 1986, para.191. 170 Tams, 2009, p370 171 Cannizaro, 2006, p782 172 Nicaragua, 1986, para.115.

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51 requires an armed attack by the non-state actor be attributable to a state.173

Alternatively, the expansive schools explanation is that Article 51 does not require

attribution; rather it is the conduct of the territorial state that justifies the lawful

violation of its sovereignty.174

In regards to this second explanation it is interesting to note that in 1985 fourteen

members of the UNSC rejected the following argument in legal principle:175 ‘[a]

country cannot claim the protection of sovereignty when it knowingly offers a piece

of its territory for terrorist activity against other nations’.176 This argument was

regurgitated by O’Connell in 2011 following the bin Laden raid when she forthrightly

stated that ‘under international law there is no right to engage in cross-border military

force based on the argument that a state is unable or unwilling to deal with the threat

themselves.’177

The juridical effect of this restrictive approach dovetails the requirement of

attribution. According to this approach, in response to recent US state practice, neither

Yemen nor ‘Pakistan is…responsible for an armed attack on the United States and so

there is no right to resort to military force under the law of self-defense.’178 However,

in regards to justifying a territorial transgression, this appears to conflate two vitally

distinct concepts, that of responsibility and attribution. O’Connell states that,

regarding the lawfulness of Operation Enduring Freedom, ‘[t]he most important piece

of evidence concerned the state responsibility of Afghanistan’.179 It is assumed that

O’Connell is referring to the demonstrable fact that the de facto Taliban government’s

conduct, in being neither unable nor unwilling to discharge the positive duties180

placed on it by international law, justifies the violation of its sovereignty. This is

assumed on the basis that despite the fact that no evidence was adduced181 that Al-

                                                                                                               173 Cassese, 1989, p596 174 Dinstein, 2005, p206 175 UNSC Res.573. 176 UN Doc. S/PV.2615, para.86–87. 177 O’Connell, 2011, para.7. 178 O’Connell, 2013, p21 179 Ibid., 180 Declaration on Principles of International Law Concerning Friendly Relations, 1970, p121 181 Paust, 2010, p249

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Qaeda was sent ‘on behalf of’182 the Taliban, to the majority Operation Enduring

Freedom remains legitimate.

In 2005 the ICJ ‘missed a chance to fine-tune’183 and confirm the continued authority

of its attribution standard. In speculation, the geopolitical and normative appeal of

proxy wars that prevailed at the time of the Nicaragua decision rationalizes the

imposition of an almost insurmountable threshold to prevent the attribution of non-

state actors to their sponsors and sources of assistance. The ICJ struck a pragmatic

balance between utopia and the state practice that was prevailing irrespective of the

normative limits of international law. The policy aim was to avoid a direct

superpower clash, ‘[t]he result was creation of a legal fiction that States that were

clearly party to a conflict…weren’t.’184 The utility of such a legal fiction is evidently

lacking where terrorists reside in safe havens beyond the rules of law enforcement.

Axiomatic in this notion of a ‘political vacuum’185 is that there is not necessarily a

sovereign state to whom attribution can be ascribed.

Indeed the Israeli self-defence incursion into Lebanon in 2006 is demonstrable upon

this point. It was consistently stated that ‘Israel is not fighting Lebanon but the

terrorist element there…who have made Lebanon a hostage’.186 This validates the

expansive explanation that, irrespective of attribution, the fact that Lebanon was

unable or unwilling justifies the necessity of self-defence. Paradoxically the

Nicaragua decision itself is the authority for undermining the veracity of its standard

of attribution and confirming that the conduct of the territorial state is now

dispositive. The Court held that ‘[r]eliance by a State on…an unprecedented

exception…might, if shared in principle by other States, tend towards a modification

of customary international law’.187 The fact that, in 2006, the majority of the Security

Council explicitly recognized the right for Israel to defend itself188 implies that, in

legal principle, attribution is no longer a sine qua non for recognising the de jure

                                                                                                               182 Article 3(g) Definition of Aggression 183 Op.cit.,Armed Activities Koojimans, para.25. 184 Schmitt, 2002, p103 185 Antonopoulos, 2008, p169 186 Op.Cit.,Israel Ministry of Foreign Affairs. 187 Nicaragua, 1986, para.207. 188 S/PV.5489 (2006)

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necessity of violating the territorial integrity of a sovereign state who is unable or

unwilling.189

Corroboration that positive intersubjective consensus has been achieved on this

interpretation can be found in both Chatham House and Leiden Policy

recommendations, the military manuals190 of states and the recent invocation of such a

standard by Russia, Israel and Turkey.191 Such a position vindicates the prescription

of Judge Koojimans’ that ‘[i]f armed attacks are carried out by irregular bands from

such territory against a neighbouring State, they are still armed attacks even if they

cannot be attributed to the territorial State.’192

Secondly, in distinguishing between “grave” and “less grave” forms of the use of

force the ICJ in Nicaragua created a restrictive lex specialis as to what constitutes an

‘armed attack’ in effect creating a conceptual hiatus between Article 51 from Article

2(4) that prohibits any use of force. This has been subject to persistent criticism,193

not least in the current context, given the fact that most terrorist attacks, assessed

individually, will struggle to trigger the de minimis requirement of the requisite ‘scale

and effects’194 rendering the ‘dividing line drawn…no longer tenable, if ever it

was.’195

Frustrated by this juridical hurdle Israel has persistently advocated an alternative

expansive doctrine under the premise that ‘continuous pin-prick’ assaults create a de

facto necessity for countermeasures in self-defence. Where such assaults form a

distinctive pattern, Israel argued that the de jure threshold ought to accordingly

‘appraise them in their totality as an armed attack.’196 However, the Security Council,

up until 2006, persistently rejected any form of “accumulation doctrine”.197

                                                                                                               189 Franck, 2001, p839 190 U.K. Ministry of Defence, 2004, p20 191 Deeks, 2011, Endnote 3. 192 Armed Activities, para.30. 193 Higgins, 1994, p250 194 Nicaragua, para.195 195 Müllerson, 2002, p180 196 Dinstein, 2005, p231 197 Tams, 2009, p370

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The ICJ has confirmed the de minimis threshold drawn in Nicaragua,198 an approach

reflected in the 2010 Leiden Recommendations.199 However, and crucially for the

purposes of this paper, in the 2003 Oil Platforms case the ICJ made the statement that

‘[e]ven taken cumulatively…these incidents do not seem to the Court to constitute an

armed attack on the United States, of the kind that the Court…qualified as a "most

grave" form of the use of force.’200 This pronouncement opens a window to interpret

the de facto necessity of self-defence against pin-prick assaults infra legem. This has

fundamental ramifications for the relationship between Article 51 and Article 2(4) and

is the foundation upon which the notion of ‘continuous, imminent threat’ in the PPG

is interpreted.

‘The United States will use lethal force only against a target that poses a

continuing, imminent threat to U.S. persons’

The fourth of Bethlehem’s principles expounds that, ‘[t]he term "armed attack"

includes both discrete attacks and a series of attacks that indicate a concerted pattern

of continuing armed activity. The distinction between discrete attacks and a series of

attacks may be relevant to considerations of the necessity to act in self-defense and

the proportionality of such action.’201 Others have been more explicit in recognising

the ramifications for necessity and proportionality, declaring that such a doctrine,

‘while closing the gap between Articles 2(4) and 51 UNC…produces serious side-

effects: it undermines the temporal dimension of self-defence and risks turning a

temporal right into an open-ended license to use force.’202 In a similar manner to

Franck’s pronouncement in 1970, for states to exploit such an interpretive window

runs the genuine risk of the exception overwhelming the rule.

Indeed, the Leiden Recommendations confirm that ‘in assessing the scale, account

may be taken of a series of attacks emanating from the same territory and the same

terrorist group.’203 This normative shift also has evidence in practice, as it was

                                                                                                               198 Oil Platforms, 2003, para.64; Armed Activities, 2005, para.147. 199 Schrijver, 2010, p584 200 Oil Platforms, 2003, para.64. 201 Bethlehem, 2012, p775 202 Tams, 2009, p389 203 Op.Cit.,Schrijver, p584

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observed that the Hezbollah attacks in 2006 ‘immediately preceding the Israeli

reaction against Lebanon seem to be very similar to the type of conduct which,

according to the Court’s [Nicaragua] ruling, does not justify recourse to an armed

response’.204

One reason for this burgeoning acceptance205 of an “accumulation doctrine” is that the

laws increasingly permissive prescriptions are precipitated by a strong international

policy to achieve the community goal of preventing terrorist attacks. Affirmation of

such a policy can be found in Annan’s declaration that ‘a terrorist attack on one

country is an attack on humanity as a whole’.206 Furthermore, on a spectrum of

legitimacy ranging from self-help, through self-defence to UNSC authorisation, since

Kosovo a doctrine of ‘neo-unilateralism’ seems to have gained normative traction.

Complementing territorial state inertia, upon abdication of the UNSC’s primary

responsibility victim states ‘arrogate to themselves a unilateral right of reaction to the

lack of accompanying institutional progress’207 and accordingly act in lieu but

nonetheless in support of UNSC resolutions.

The 2004 conduct of Russia is a practice in point. There was no principled

denunciation of Russia’s proclamation that it had a right to use force given the fact

that Georgia ‘had been unable to establish a security zone in the area of the border,

continues to ignore Security Council Resolution 1373 and does not put an end to the

bandit sorties and attacks on adjoining areas of Russia.’ 208 Both the unable/unwilling

test and doctrine of neo-unilateralism are contemporary manifestations of this nascent

international policy corroborating a doctrinal shift from sovereign equality to

equilibrant sovereignty. The juridical protections afforded to states are now

contingent upon their net contribution to systemic and social stability in an

interdependent international society.209

                                                                                                               204 Cannizaro, 2006, p782 205 Ruys, 2010, p174 206 UN Doc. S/PV.4370. 207 Pellet, 2000, p391 208 UN Doc. S/2002/1012. 209 Gow, 2000, p297

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Thirdly, the acceptance that states may treat discrete attacks cumulatively in order to

satisfy the de minimis threshold of an “armed attack” also has fundamental

ramifications for the function of ad bellum proportionality which turns on two

assessments: firstly what is the aim? Secondly were the means necessary to achieve

those ends? The doctrinal dispute over the legitimate aim of self-defence is

demonstrably acute in the case of ex post or ex ante self-defence, that is, the use of

countermeasures once an armed attack has already occurred or when an armed attack

is anticipated. The appeal of a restrictive interpretation whereby the exclusive aim of

legitimate self-defence is to ‘halt and repel’ the occurrence of an armed attack, gives a

bright line indication between defensive and reprisal, lawful and unlawful, self-

defence and self-help. However, the modus operandi of terrorism is unpredictability,

launched without warning and in most instances over before the victim state has the

opportunity to react. Such a restrictive interpretation creates an implausibly minute

margin of appreciation between ‘the Scylla of anticipatory self-defence and the

Charybdis of reprisals’210 rendering the right to self-defence meaningless. What is

created in effect is an ad bellum variant of the revolving door of protection for

terrorists who attack and then retreat to the juridical safe haven beyond the purview of

the rules of law enforcement.

However, as Kretmzer demonstrates, acceptance of an accumulation doctrine whereby

an attacked state ‘may take action to prevent such an attack occurring again

necessarily rejects the ‘halting and repelling’ theory’.211 This remedies the paradox of

an ad bellum revolving door of protection by broadening the margin of appreciation in

which states can defend themselves. The effect of rendering DPAA’s legitimate

targets of preventive counterterror operations for the duration of their campaign is that

it creates an ad bellum low evidentiary safe haven for victim states to justify targeted

killings.

The doctrinal debate pertaining to lawful counter terrorism seems to have shifted from

pre-emption to accumulation congruent with Gray’s contention that ‘[i]n practice

States prefer to argue for an extended interpretation of armed attack and to avoid the

                                                                                                               210 Müllerson, 2002, p179 211 Kretzmer, 2013, p261

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fundamental doctrinal debate [about anticipatory self-defence]’. 212 Whilst the

adjectives “continuous imminence” appear prima facie oxymoronic and temporally

oriented, it shall now be demonstrated that what the PPG does in fact attempt is to

stretch the notion of an “armed attack” and blur it with a right to use lethal

interpersonal force against specific individuals. Such blurring accommodates the

fundamental transformation of individuated responsibility and conduct-based

assessments under the normative framework of ius ad bellum.

The appraisal undertaken on a case-by-case basis to judge the lawfulness of ad bellum

self-defence targeting now bears a striking resemblance to the appraisal undertaken of

the lawfulness of targeting civilians with a CCF in bello. Al-Aulaki is the practice in

point. A full account of Al-Aulaki’s adjudicative facts of international law-breaking

involvement with, inter alia, Umar Farouk Abdulmutallab the “Christmas underwear

bomber”, is beyond the scope of this paper. One thing however is clear: there existed

a de facto necessity for the U.S. to intervene in Al-Aulaki’s ‘strategy of a thousand

cuts’, which had the stated aim to ‘bleed the enemy to death’.213 It is clear from U.S.

Attorney General Holder’s letter, justifying the targeted killing of Al-Aulaki, that the

adjudicative facts of his previous, perhaps less-grave, continuous conduct outside

active hostilities were accumulated to create a de facto function, analogous to that of

an in bello CCF. As Holder described, ‘it was al-Aulaqi's actions - and, in particular,

his direct personal involvement in the continued planning and execution of terrorist

attacks against the U.S. homeland - that made him a lawful target and led the United

States to take action.’ 214 Descriptively speaking what has been created is an

individualized accumulation doctrine, a continuous armed attack function,215 from

which the legitimate expectation can be made, as a quasi-legislative fact, that Al-

Aulaki posed an inevitable, as opposed to temporally proximate, threat to the U.S.

Accordingly, given that the modus operandi of terrorist attacks is uncertainty, ‘a state

need not necessarily have plot-specific evidence where there is substantial evidence

which points to the inevitability of future attacks.’216

                                                                                                               212 Gray, 2008, p165. 213 Reuters, 2010, para.5. 214 White House, Attorney General Holder’s Letter, 2013,para.9. 215 Hereinafter: CAAF 216 Ramsden, 2011, p400

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‘It is simply not the case that all terrorists pose a continuing, imminent threat to

U.S. persons; if a terrorist does not pose such a threat, the United States will not

use lethal force.’

This proclamation does not mirror the accepted position in bello whereby any terrorist

to whom a CCF is ascribed is liable to be targeted. Thus, it appears that the PPG

creates a peacetime de minimis threshold. This is despite the fact that, given the de

facto resemblance between “lawless zones” and active hostilities, the difference

between the conduct of terrorists inside and outside active hostilities may be nominal.

The activities of a CCF, according to the PPG, do not necessarily constitute a CAAF.

This appears to reflect a principled policy in which only the upper echelons of

terrorist organisations are liable to self-defence targeting; mere membership to Al-

Qaeda would not suffice.217 Such a threshold seems to be, to adapt the position of

Solis, that ‘senior terrorist leaders and terrorist weapons specialists and fabricators

should be considered to continually be taking a direct part in [an armed attack]’218.

In contradistinction to this view, Bethlehem suggests that, despite copious discussion

behind closed doors, there remains ‘little consensus on who may properly be

targetable within the non-state-actor continuum of those planning, threatening,

perpetrating, and providing material support essential to an armed attack.’219 In his

seventh principle Bethlehem errs on the side of apologia. He proposes that the legal

Rubicon of an ‘irreversible course of action’220 will be considered to have been

crossed by not only by those ‘actively planning, threatening, or perpetrating armed

attacks’ but also ‘those of whom there is a strong, reasonable, and objective basis for

concluding that they are taking a direct part in those attacks through the provision of

material support essential to the attacks.’221 However, as Rona points out, ‘Bethlehem

does not define the term material support’.222 In light of such descriptive dearth, it

appears yet again judicious to lean on the an in bello variant for some operational

clarity. The ICRC makes a distinction between direct and indirect participation,

                                                                                                               217 Chesney, 2011, p48 218 Op.cit.,Gherebi v. Obama 219 Bethlehem, 2012, p775 220 Dinstein, 2005, p179 221 Bethlehem, 2012, p775 222 Rona, 2013, p388

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namely that ‘preparatory measures aiming to carry out a specific hostile act qualify as

direct participation in hostilities, whereas preparatory measures aiming to establish

the general capacity to carry out unspecified hostile acts do not.’223 What is required

is a principled threshold that oscillates between apology and utopia. This threshold

exists below Bethlehem’s apologetic interpretation of preparatory measures aiming to

establish general capacity, but above a utopian threshold that renders the inherent

right to self-defence meaningless in a similar manner to the phenomenon of “reverse

conflation” in bello. It appears that, in accordance with Solis and to the exclusion

Bethlehem’s interpretation, the PPG justifiably renders anyone other than leaders,

weapons specialists, planners and perpetrators beyond its lawful scope.

‘An assessment that capture is not feasible at the time of the operation;’

As far as incantations of self-defence are concerned it is interesting to note that the

restrictive school has implicitly recognized the intersection between the right to self-

defence and the adjudicative fact that individuals are capable of triggering it. This is

evident from O’Connell’s response to Bethlehem’s principles that ‘we understand

increasingly the importance of regarding all killing by governments through the prism

of human rights law.’224 Indeed, Bethlehem’s reconstruction of self-defence targeting

is not too dissimilar to Anderson’s discredited “naked self-defence.” Even Anderson

bore a retreat from such a model, for the simple reason that ‘even assuming the

exercise of national self-defense was legitimate, what law regulated the tactical

execution of the operation?’225 The ad bellum legal tests of necessity, proportionality

and immediacy alone were inadequate to simultaneously preclude the wrongfulness

of both the interstate and interpersonal uses of force outside active hostilities. Such a

model brought significant criticism from the human rights community and, writing in

2012, Ramsden notes that ‘in the only public justification to date by the US

government, no response was given to allay these human right-specific fears.’226 As

far as the international community was concerned it was assumed that, after 2010 but

before the PPG, Koh justified targeted killings exclusively on the alternate bases of

LOAC and “naked self-defence”.                                                                                                                223 ICRC, 2009, p66 224 O’Connell, 2013, p381 225 Corn, 2012, p58 226 2012, p387

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This assumption led Alston to declare that under IHRL ‘[o]utside the context of

armed conflict…targeted killing is almost never likely to be legal.’227 To substantiate

his point Alston draws an analogy between the ticking bomb hypothetical for the

necessity of torture and the peacetime necessity requirement that self-defence be

“instant, overwhelming, and leaving no choice of means, and no moment of

deliberation.” In his opinion, to interpret away the latter test would be as unlawful as

the former. However, this is a disanalogy for the simple reason that the two rights are

qualitatively distinct. The right not to be arbitrarily deprived of ones life228 is relative;

the right not to be tortured is absolute. As Dehn points out, in extraordinary cases

‘extrajudicial use of lethal force becomes an unavoidable part of law enforcement.’229

The means that, as enunciated by the European Court of Human Rights, killing

someone can be justified if proportionate230 and necessary to the legitimate end, that

of preventing terrorist attacks and saving innocent lives.231

Blank, in an outright rejection of the plausibility of interpreting “naked self-defence”

targeting infra legem, opines that ‘[t]he potential spillover between status-based

targeting and direct participation in the armed conflict framework and imminence and

necessity (but without belligerent nexus) in the self-defense framework provoke

consternation…’.232 However this consternation can only legitimately be directed at

the models of “naked self-defence” and Bethlehem’s principles. This is illustrated

when another publicist comments that ‘[p]erhaps the most troubling aspect of

Bethlehem’s proposal is the impact that it could have on protections otherwise

provided by international human rights law.’233 Bethlehem completely bypassed the

operational and doctrinal issues pertaining to the tactical level of operations and the

application of IHRL outside active hostilities.

In regards to such protections it is well known that Websterian imminence is the first

prong of the self-defence necessity test under both ius ad bellum and IHRL. However,                                                                                                                227 Alston, 2010, p25 228 Article 6(1) ICCPR 229 Dehn, 2011, p190 230 McCann v UK,1996, para.149. 231 Isayeva v Russia, 2005, para 70. 232 Blank, 2012, p1698 233 Rona, 2013, p389

  41  

as demonstrated above from the Israeli incursion of 2006 and the case of Al-Aulaki,

there is a cogent argument that, in blurring an “accumulation doctrine” with the

concept of CCF to create a CAAF, ius ad bellum has been humanized to

accommodate the paradox of individuated responsibility. The consequence of this is

that the revolving door of protection, created by imminence, is legitimately

circumvented.

The second prong of this necessity test outside active hostilities, is less-injurious

means, the beneficiary of which is the actual target. It is the neglect of this

requirement that obstructed positive intersubjective agreement on Bethlehem’s

interpretation of contemporary opinio juris. It appears that no-one, not even

Bethlehem who claims to have been privy to such intergovernmental discussions,

anticipated that the U.S. felt obligated under an IHRL standard of proportionality. It

shall now be demonstrated that the inclusion of this requirement, in which an

assessment shall be made that capture is not feasible, prima facie removes all the

criticisms leveled at Bethlehem’s principles and the model of “naked self-defence.”

As far as the argument of the restrictive school is concerned it must be accepted that,

notwithstanding the extraterritorial application of IHRL in principle, in safe havens a

fundamental premise of law enforcement is invalid.234 By definition no-one has the

requisite governing capacity to effect arrest. Indeed the invalidity of this premise is

even acknowledged by U.N. Basic Principles on the Use of Force and Firearms by

Law Enforcement Officials. Under Principle 9 states are obligated not to use lethal

force unless in self-defence ‘against the imminent threat of death or serious injury, to

prevent the perpetration of a particularly serious crime involving grave threat to

life…and only when less extreme means are insufficient to achieve these

objectives.’235 Brennan has persistently expressed an ‘unqualified preference’236 for

such an assessment to be made but ample practice demonstrates that in “lawless

zones” the risks posed to law enforcement operations raise the requirement for actual

exhaustion of less-injurious means utopian beyond reach. Indeed, to bridge the gap

between war and peace, the Israeli Supreme Court famously inserted an IHRL

                                                                                                               234 Kretzmer, 2005, p179 235 1990, Principle 9. 236 Brennan, 2011, para.38.

  42  

proportionality standard into the normative framework that governs the Israeli IAC

with Hamas. The Court went so far as to declare this a manifestation of the policy that

‘democracy ought to fight with one hand tied behind her back’237 but crucially

acknowledged that ‘at times it involves a risk so great to the lives of the soldiers, that

it is not required.’238 Indeed, the law enforcement efforts in the tribal Marib province

of Yemen in 2001 preceding the targeted killing of Al-Harethi, demonstrate the

utopian nature of this requirement. Yemeni law enforcement agents, in a display of

willingness to capture al-Harethi, were engaged at the crucial moment by an

unassociated local hostile faction, it is reported that ‘[a] disastrous battle ensued,

leaving at least 18 soldiers and four tribesmen dead, but the suspects escaped.’239

In light of this reality the second prong of the necessity test, the exhaustion of less-

injurious means only ‘constitutes evidence that a legal requirement has been met, not

a legal requirement in itself’.240 As implicitly substantiated by the Chatham House

rule, ‘[t]here must be no practical alternative to the proposed use of force that is

likely to be effective in ending or averting the attack’.241 In effect, in such safe havens

there exists a ‘strategic vacuum’.242 Due to the fact that the non-state actor has placed

himself beyond the de facto reach of law enforcement operations, lethal force is not a

last resort but the only feasible resort, thus rationalizing the normative appeal243 of

targeting in a ‘window of opportunity’.244

As has been discussed in expert meetings in the ICRC, as long as the individual has ‘a

subjective “intent” to cause harm that was objectively identifiable, there would also

be an objective “likelihood” that he or she would cause such harm.’245 Such an

objective likelihood, a future-oriented quasi-legislative fact, manifests itself by virtue

of the subjective intent evidenced by a CAAF outside active hostilities. The principled

approach is therefore that the revolving door of protection offered by “imminence” is

                                                                                                               237 Targeted Killings Case, 2006, para.64. 238 Ibid.,para.40. 239 Whitaker, 2002, para.4. 240 Green, 2000, p84 241 Wilmshurst, 2006, p966 242 Verdirame, 2006, p104 243 Schmitt, 2002, p110 244 Brennan, 2011. 245 ICRC, 2008, para.66.

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closed “for such time” as the individual places himself, of his own volition, beyond

the feasible application of the rules of law enforcement. He is quasi-permanently

liable to self-defence targeting, as an exception to both Article 2(4) and the right to

life, as long as he remains in the safe haven. This rationalisation, by removing

temporal imminence, indicates that ‘a quasi-permanent state of self-defence’246

inexorably overwhelms the rule and transforms the system. However the PPG

includes one more controversial requirement.

‘Near certainty that non-combatants will not be injured or killed;’

This is a ‘blatant lie’247 according to Heller, one of the few commentators who has

parsed the PPG. Such sentiments identify those who believe that, due to the

contextual resemblance, “lawless zones” ought to be normatively characterized as

active hostilities. Accordingly, ‘Obama should not enforce the standard, because it is

fundamentally inconsistent with his obligation…to protect the U.S.…The loss of

innocent civilian life, though regrettable, is not always unjustified.’248

Corn, who has persistently proposed a TAC model to deal with the paradoxes of

individuated responsibility and safe havens, takes an alternative tact. He rejects the

notion of self-defence targeting on the policy grounds that ‘when a State employs

combat power in a manner that indicates it has implicitly invoked LOAC principles

(by employing deadly force as a measure of first resort), it is engaged in an armed

conflict. As a result, it is bound to comply with core LOAC principles.’249 Indeed,

uses of force taken in a window of opportunity when less-injurious means are not

feasible will inevitably indicate, to those not privy to the actual assessment that

capture is not feasible, that the use of force has actually been taken in first resort.

However, notwithstanding such indications, for humanitarian reasons it is highly

desirable for the core LOAC principles not to apply.

The PPG recognizes this by precluding the application of the LOAC principle of

proportionality outside active hostilities. This is likely to foster positive

                                                                                                               246 Tams, 2009, p390 247 Heller, 2013, para.2. 248 Heller, 2013, p1 249 Corn, 2012, p74

  44  

intersubjective consensus and bridge the interpretive chasm especially with those in

the human rights community. After all, it was this community that cogently argued

against the notion of a global armed conflict. Their argument was based upon the fact

that, when a CCF, and ensuing permanent loss of protection, was ascribed to an

individual in bello anywhere in the world, the privilege to target such individuals

subject to LOAC proportionality was also granted, reportedly to the detriment of

thousands of innocent civilians.250 By interpreting away the ‘legal geography of war’

Hamden created a legal fiction that legitimated the supplanting of IHRL with the

LOAC, namely that the U.S. wasn’t eviscerating the right to life of suspected

terrorists and the innocent collateral victims when clearly it was. Thus, it was this

“incidental harm”, legitimated by a legal fiction, outside active hostilities that

obstructed any reconciliation between the opposing interpretive schools. Under the

PPG however, permanent loss of protection and the attendant privilege for LOAC

proportionality are severed. Therefore, whilst those of an extreme expansive

persuasion may ‘fail to see why the US would want to essentially give up IHL as

providing an independent justification for the use of lethal force’251 outside active

hostilities, it appears that Koh has taken heed of the majority of the interpretive

community. The PPG does not recognize any legitimate incidental harm in strict

accordance with analogous IHRL norms. It is submitted that, along with a bona fide

‘assessment that capture is not feasible at the time of the operation’, this is the

condition precedent that prevents the exception, of self-defence targeting, from

overwhelming the rule. In neatly dovetailing the conceptual transformation in the

nature of warfare, targeted killing under ius ad bellum, can be interpreted infra legem,

‘commensurate with a fundamental condition of justified self-defence, namely, that

those killed are responsible for the threat posed.’252

                                                                                                               250 Bureau of Investigative Journalism, 2013. 251 Heller, 2013, para.4. 252 Statman, 2004, para.20.

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Section Four: Conclusion

Instances of prima facie non-compliance are immanent to our anarchical society as

states, out of bona fide necessity, deal with changing factual constellations in

international affairs. Given the opaque nature of state practice in the context of

warfare too small for Article 51, the process of international law in a system of

normative positivism necessarily hinges upon opinio juris. This paper subscribes to

the view of the ICRC when it opines that the requisite opinio juris for the creation of

customary international law is ‘qualitative rather than quantitative’.253 In dealing with

a form of warfare too large for Article 51 this view is reflected by the ICJ in stating

that, ‘a customary rule specifically prohibiting the use of nuclear weapons as such is

hampered by the continuing tensions between the nascent opinio juris on the one

hand, and the still strong adherence to the practice of deterrence on the other.’254

Deterrence was the only strategy for dealing with this form of warfare. Analogously,

those states ‘specially affected’255 by terrorism reside in a strategic vacuum. When

faced with armed attacks, perpetrated by unattributable non-state actors emanating

from safe havens, adherence to the practice of self-defence targeting is necessarily the

only feasible option, irrespective of the normative limits of international law.

Accordingly a vindication of the rule of law in international affairs is not mutually

inclusive with the vindication of law over power. Rather, and contrary to rules-

oriented jurisprudence, ‘[t]he authority which characterises law exists not in a

vacuum, but exactly where it intersects with power.’256 Thus, for the law to remain

apposite Wendt’s adage257 ought to be adapted to expound: “anarchy is what those

states specially affected make of it.” The opinio juris contained within the PPG is the

new point at which the authority, which characterises law, intersects with power.  

Hamden, in interpreting away the “legal geography of war”, created a legal fiction

that attempted to legitimate the supplanting of IHRL with the LOAC. In a similar

manner, Bethlehem’s principles merely supplant IHRL with an expansive

interpretation of ad bellum self-defence incapable of precluding the wrongfulness of                                                                                                                253 Henckaerts, 2005, xliv 254 Op.cit.,Nuclear Weapons, para.73. 255 North Sea Continental Shelf, 1969, para.74. 256 Higgins, 1994, p4 257 Wendt, 1992, 391

  46  

lethally targeting an individual. In rejecting both interpretations as apologetic and thus

non-compliant the restrictive school and majority of the international community

assumed that Bethlehem was illicitly attempting to ‘substitute the opinio juris of the

powerful for the practice of all.’258 However, beyond the conceptual merger of

stretching the notion of an armed attack with a CCF to create a CAAF under ius ad

bellum, Bethlehem did not reflect the opinio juris of the powerful. What distinguishes

the PPG is that upon creating a CAAF it justifies the attendant low evidentiary safe

haven, for victim states to target such individuals, by expressing that it is legally

obligated to use lethal force only when an assessment that less injurious means are not

feasible. This difference may in practice be nominal given that, by definition, this is a

normative framework applicable below the de jure threshold of an armed conflict but

beyond the de facto reach of law enforcement operations. However with the

additional obligation not to use force unless there is near certainty non-combatants

shall not be harmed, it is submitted that, to the extent of inducing positive

intersubjective consensus in a system of normative positivism, this is enough. Thus, a

specific individual with a CAAF may be targeted in territory beyond the feasible

application of law enforcement principles for such time as he remains there.

The incantation of PPG self-defence targeting under the ius ad bellum, by striking a

principled oscillation between apology and utopia, enunciates appropriate standards to

govern against whom, where and when a specific individual may targeted outside

active hostilities. It reconciles the de jure-de facto divide, created by the legal

paradoxes of individuated responsibility and safe havens, in a manner that plausibly

constitutes an interpretation infra legem thus reconciling ‘the dead but legitimate hand

of the past with the distinctly illicit charm of progress’259 and bringing some clarity to

the normative frameworks that comprise international law.

                                                                                                               258 Glennon, 2013, p378 259 Dworkin, 1986, p348

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Bibliography

Books Dinstein, Yoram. The conduct of hostilities under the law of international armed conflict. Cambridge, UK: Cambridge University Press, 2004. Dinstein, Yoram. War, aggression, and self-defense. 3rd ed. Cambridge [England: Cambridge University Press, 2005. Dworkin, R. Law's empire. Cambridge: Belknap Press of Harvard University Press 1986. Henckaerts, Jean, Louise Beck, and Carolin Alvermann. Customary international humanitarian law. Cambridge: Cambridge University Press, 2005. Higgins, Rosalyn. Problems and process: international law and how we use it. Reprint ed. Oxford: Clarendon Press, 1994. Garrett, Geoffrey & Weingast, Barry R. Ideas, Interests and Institutions Constructing the EC's Internal Market, in Goldstein, Judith, and Robert O. Keohane. Ideas and foreign policy: beliefs, institutions, and political change. Ithaca: Cornell University Press, 1993. Gazzini, Tarcisio. The changing rules on the use of force in international law. Huntingdon, New York: Juris, 2005. Gray, Christine D. International law and the use of force. Oxford: Oxford University Press, 2008. Green, Leslie C. The Contemporary Law of Armed Conflict, Manchester University Press, Manchester, 2nd edn, 2000 McDougal, Myres Smith, and Florentino P. Feliciano. Law and minimum world public order; the legal regulation and international coercion,. New Haven: Yale University Press, 1961. Melzer, Nils. Targeted killing in international law. Oxford: Oxford University Press, 2008. Müllerson, R. A.. Ordering anarchy: international law in international society. The Hague: M. Nijhoff, 2000. Kohen, ‘The Use of Force by the United States after the End of the Cold War, and its Impact Upon International Law’ in M Byers and G Nolte (eds), United States Hegemony and the Foundations of International Law. Cambridge University Press, Cambridge 2003.

Koskenniemi, Marti. From apology to Utopia the structure of international legal argument. Cambridge: Cambridge University Press, 2005

  48  

Lauterpacht, Hersch. The Function of Law in the International Community. Oxford: Clarendon Press, 1933. Ruys, Tom ‘Armed Attack’ and Article 51 of the UN Charter. Cambridge: Cambridge University Press, 2010. Schmitt, Michael N. Counter-terrorism and the use of force in international law. Garmisch-Partenkirchen, Deutschland: George C. Marshall European Center for Security Studies, 2002. Schmitt, M. N. ‘Targeted Killings and International Law: Law Enforcement, Self-Defense, and Armed Conflict’,International Humanitarian Law and Human Rights Law, Towards a New Merger in International Law. R. Arnold and N. Quenivet eds., 2008 Schmitt, Michael N. Essays on law and war at the fault lines. Hague: T.M.C. Asser Press, 2012. Wilmshurst, Elizabeth. International law and the classification of conflicts. Oxford: Oxford University Press. 2012

Articles Anderson, Kenneth, (2011) Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’. FUTURE CHALLENGES IN NATIONAL SECURITY AND LAW, Peter Berkowitz, ed., Hoover Institution, Stanford University, Forthcoming; American University, WCL Research Paper No. 2011-16. Antonopoulos, Constantine, (2008) Force by Armed Groups as Armed Attack and the Broadening of Self-Defence, Netherlands International Law Review, Vol 55, Iss. 02, August, pp 159-180 Akehurst, Michael. (1973) Custom as a Source of International Law, 47 British Yearbook of International Law 1 Ben-Naftali Orna and Michaeli, Keren R. (2003) ‘We must not make a scarecrow of the law’’: a legal analysis of the Israeli policy of targeted killings’, Cornell International Law Journal, Vol. 36, Bethlehem, Daniel. (October 2012) Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors. The American Journal of International Law Vol. 106, No. 4, pp. 769-777 Blank, Laurie R., (2012) Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications. William Mitchell Law Review, Vol. 38. Berman, N. (2004) Privileging Combat? Contemporary Conflict and the Legal Construction of War 43 Columbia Journal of Transnational Law 1.

  49  

Boothby, Bill. (2010) “And For Such Time As”: The Time Dimension To Direct Participation in Hostilities” New York University Journal of International Law and Policy. 741 Cannizaro, (2006) ‘Contextualizing Proportionality: Jus ad bellum and jus in bello in the Lebanese War’, 88/864 Int’l Rev Red Cross 782 Cassese, Antonio (1989) ‘The International Community’s “Legal” Response to Terrorism’ (1989) 38 International Comparative Law Quarterly 589. Chesney, Robert, Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force (February 2, 2011). Yearbook of International Humanitarian Law, Vol. 13, M.N. Schmitt et al, eds., 2010; U of Texas Law, Public Law Research Paper No. 189. Corn, G. and E. Talbot Jensen, (2009) ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’ (2009) 42 Israeli Law Review 46. Corn, Geoffrey S. (2012) ‘Self Defense Targeting: Conflict Classification or Willful Blindness?’, in 88 NAVAL WAR C. INT’L L. STUD., available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1947838 Corn, Geoffrey S., (2012) Self-Defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello. International Law Studies, Vol 88, pp57-92 Daskal, Jennifer C., (2013) The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone (June 1, 2012). 161 University of Pennsylvania Law Review 1165. Deeks, Ashley. (2011) Pakistan's Sovereignty and the Killing of Osama Bin Laden, Americal Society of International Law Insights, May 5, Volume 15, Issue 11 Dehn JC and Heller, K.J. (2011) ‘Debate, Targeted Killing: The Case of Anwar Al-Aulaqi’ (2011) 159 University Pennsylvania Law Review 175, <http://www.pennumbra.com/debates/pdfs/TargetedKilling.pdf> Dennis, Michael J. (2005) Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 American Journal of International Law. 124 Delahunty, Robert J. and Yoo, John Choon, (2010) What is the Role of International Human Rights in the War on Terror? DePaul Law Review, Forthcoming; U of St. Thomas Legal Studies Research Paper No. 10-16; UC Berkeley Public Law Research Paper No. 1595148. Available at SSRN: http://ssrn.com/abstract=1595148 Eichensehr, Kristen, (2008) On Target? The Israeli Supreme Court and the Expansion of Targeted Killings (June 20,) Yale Law Journal, Vol. 116, No. 8.

  50  

Franck, Thomas. (1970) Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States The American Journal of International Law , Vol. 64, No. 5 pp 809-837 Franck, Thomas (2001) ‘Editorial Comments: Terrorism and the Right of Self-Defence’, 94 American Journal of International Law 839 Glennon, Michael J. (2002) "The Fog of Law: Self-Defense, Inherence, and Incoherence in the United Nations Charter." Harvard Journal of Law and Public Policy 25, no. 2: 539-559. Glennon, Michael J. (2013) Law, Power, and Principles The American Journal of International Law Vol. 107, No. 2 (April), pp. 378-380 Goodin, Robert E. (2005) Toward an International Rule of Law: Distinguishing International Law-Breakers from Would-Be Law-Makers The Journal of Ethics , Vol. 9, No. 1/2, Current Debates in Global Justice, pp. 225-246 Gow, James. (2000) A Revolution in International Affairs? Security Dialogue, September 31: 293-306, Gray, Christine (2011) President Obama’s 2010 United States National Security Strategy and International Law on the Use of Force 10 Chinese Journal of International Law, 35–53 Greenwood, Christopher. (1983) The Relationship Between Ius ad Bellum and Ius in Bello, 9 Review of International Studies. 221 Guiora, Amos N., (2010) Targeted Killing as Active Self-Defense, Case Western Research Journal International Law, Vol. 36. Henkin, Louis. (1971) “Reports of the Death of Article 2(4) are Greatly Exaggerated.” American Journal of International Law, Vol. 65 pp544-548. Higgins, Rosylynn. (1968) ‘Policy Considerations and the International Judicial Process’ 17 International Comparative Law Quarterly 58. Issacharoff, Samuel and Pildes, Richard H., (2013) Targeted Warfare: Individuating Enemy Responsibility. New York University Law Review, Forthcoming; NYU School of Law, Public Law Research Paper No. 12-40. Available at <SSRN: http://ssrn.com/abstract=2129860 or http://dx.doi.org/10.2139/ssrn.2129860> Jennings, R. Y. (1938) The Caroline and McLeod Cases, 32 American Journal of International Law 82 Johnstone, Ian. (2005) The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-terrorism, 43 Columbian. Journal of Transnational Law 337.

  51  

Kretzmer, D (2005) ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ 16 European Journal of International Law 171 Lewis, (2012) Michael W., Drones and the Boundaries of the Battlefield (June 2, 2012). 47 Texas International Law Journal 293. Lorca, Arnulf Becker. (2012) Rules for the “Global War on Terror”: Implying Consent and Presuming Conditions for Intervention, 45 New York University Journal of International Law and Policy. 1. Melzer, Nils. (2010) “Keeping the Balance between Military Necessity and Humanity – a response to four critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities”, NYU Journal of International Law and Politics(Vol. 42:3). Müllerson, Rein. (2002) Jus ad bellum and international terrorism. Israel Yearbook on Human Rights; Vol. 32: pp1-51 Myjer, Eric & White, Nigel. (2002) The Twin Towers Attack: An Unlimited Right to Self‐Defence? Journal of Conflict Security Law 7(1): 5-17. O'Connell, Mary Ellen, (2009) Combatants and the Combat Zone. University of Richmond Law Review, Forthcoming; Notre Dame Legal Studies Paper No. 08-39. Available at SSRN: http://ssrn.com/abstract=1332096 or http://dx.doi.org/10.2139/ssrn.1332096 O’Connell, Mary Ellen. (2011) The bin Laden aftermath: Abbottabad and international law, Foreign Policy May 4, Available at <http://afpak.foreignpolicy.com/posts/2011/05/04/the_bin_laden_aftermath_abbottabad_and_international_law> O'Connell, Mary Ellen. (2013) Dangerous Departures The American Journal of International Law Vol. 107, No. 2 (April), pp. 380-386 O'Connell, Mary Ellen, (2013) Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009. SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT, Simon Bronitt, ed., Forthcoming; Notre Dame Legal Studies Paper No. 09-43. Available at SSRN: http://ssrn.com/abstract=1501144 Parks, Hays W. (1990) ‘Air War and the Laws of War’, 32 Air Force Law Review 1. Parks, Hays. W. (2009) Part IX of the ICRC “Direct Participation in Hostilies” Study: No Mandate, No Expertise, and Legally Incorrect New York University Journal of International Law and Policy. Vol. 42 pp770-799 Paust, Jordan J., (2010) Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan. Journal of Transnational Law & Policy, Vol. 19, No. 2.

  52  

Paust, Jordan J., (2011) Permissible Self-Defense Targeting and the Death of Bin Laden. Denver Journal of International Law and Policy, Vol. 39, No. 4. Pellet, Alain. (2000) Brief Remarks on the Unilateral Use of Force, European Journal of International Law, Vol.11 No. 2 pp385-392 Ramsden, Michael. (2011) Targeted Killings and International Human Rights Law: The Case of Anwar Al-Awlaki. Journal of Conflict & Security Law Vol. 16 No. 2, 385–406 Rogoff, Martin A. & Collins, Edward Jr., (1990) The Caroline Incident and the Development of International Law, 16 BROOK. J. INT’L L. 497 Rona, Gabor and Wala, Raha (2013) No Thank You to a Radical Rewrite of the Jus ad Bellum The American Journal of International Law Vol. 107, No. 2 (April), pp. 386-390 Scharf, Michael P., (2010) Seizing the ‘Grotian Moment’: Accelerated Formation of Customary International Law in Times of Fundamental Change (April 12). Cornell International Law Journal, Vol. 43. Schmitt, Michael N. (2002) ‘Preemptive Strategies in International Law’ 24 Michigan Journal of International Law. Vol, 4. Schmitt, Michael N. (2002) ‘Counter-Terrorism and the Use of Force in International Law’ Israel Yearbook on Human Rights; Vol. 32. Schmitt, Michael N. (2004) Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chicago Journal of International Law 511. Schrijver, Nico and van den Herik, Larissa (1 April 2010) Leiden Policy Recommendations on Counter-terrorism and International Law, Netherlands International Law Review, vol. 54 (2007), no. 3, pp. 571-587 Slaughter, Anne-Marie. (1993) International Law and International Relations Theory: A Dual Agenda The American Journal of International Law, Vol. 87, No. 2 (April), pp. 205-239 Statman, (2004) ‘Targeted Killing’, 5 Theoretical Inquiries in Law 179. Tams, Christian. (2009) The Use of Force Against Terrorists. European Journal of International Law Vol.20 (2): pp359-397. Verdirame, Guglielmo. (2006) 'The Sinews of Peace: International Law, Strategy and the Prevention of War', 78 British Year Book of International Law (2006) 83-162. Wedgewood, Ruth. (2004) “Comment” in “Symposium: America Fights Back: The Legal Issues, Cardozo Journal of International and Comparative Law 831.

  53  

Wendt, Alexander. (1992) Anarchy is what States Make of it: The Social Construction of Power Politics, International Organization, Vol. 46, No. 2. (Spring,), pp. 391-425 Wilmshurst, Elizabeth. ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence’ (2006) 55 International Comparative Law Quarterly 963

National and International Jurisprudence (Armed Activities) Armed Activities on the Territory of the Congo (DRC–Uganda case), [2005] ICJ Rep 201. available at: <http://www.refworld.org/docid/4040b38e4.html> [accessed 21 August 2013] Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C 2010) (No. 10-01469) Banković and Others v Belgium and Others (Decision as to Admissibility), App No 52207/99, ECtHR Grand Chamber (2001); Caroline Incident, 1840, 29 BFSP 1137-8; 30 BFSP 19-6. Gherebi v. Obama, 609 F. Supp. 2d 43, 64 n.15 (D.D.C. 2009) Hamdan v. Rumsfeld, US Supreme Court, 548 U.S. ___ (2006); 126 S. Ct. 2749; 2006 U.S. LEXIS 5185 Isayeva v Russia (2005) 41 EHRR 791. (Kunarac Appeal Judgment) Judgment, Kunarac, Kovac and Vukovic (IT-96-23-A), Appeals Chamber, 12 June 2002, ss 57. McCann v UK (1996) 21 EHRR 97. (Nicaragua Case) Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, available at: http://www.refworld.org/docid/4023a44d2.html [accessed 21 August 2013] North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) , I.C.J. Reports 1969, p.3, International Court of Justice (ICJ), 20 February 1969, available at: http://www.refworld.org/docid/50645e9d2.html [accessed 21 August 2013] (Nuclear Weapons Advisory Opinion) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, available at: http://www.refworld.org/docid/4b2913d62.html [accessed 21 August 2013]

  54  

(Oil Platforms) Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America, International Court of Justice (ICJ), 6 November 2003, available at: http://www.refworld.org/docid/414b00604.html [accessed 27 August 2013] Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Inter- locutory Appeal on Jurisdiction (Oct. 2, 1995), available at http://www.icty.org/x/ cases/tadic/tdec/en/100895.htm. Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, available at: http://www.refworld.org/docid/40277f504.html [accessed 21 August 2013] R (On the Application of Al-Skeini) v Secretary of State for Defence (Redress Trust Intervening) [2007] UKHL 26 at 189 (opinion of Lord Bingham) S.S. “Lotus” (France. v. Turkey.), 1927 P.C.I.J. (ser. A) No. 10, at 14 (Sept. 7). (Targeted Killings Case) - The Public Committee against Torture in Israel et al v. The Government of Israel et al, Supreme Court of Israel sitting as the High Court of Justice, Judgment, 11 December 2006, HCJ 769/02, available at: http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM The Prosecutor v. Moinina Fofana, Allieu Kondewa (the CDF Accused) (Sentencing Judgment), SCSL-04-14-T, Special Court for Sierra Leone, 9 October 2007, available at: http://www.refworld.org/docid/470dd5a02.html [accessed 21 August 2013] (The Wall) Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html [accessed 21 August 2013]

Treaties of United Nations and Documentation Alston Philip, UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Study on targeted killings, 28 May 2010, A/HRC/14/24/Add.6, available at: http://www.refworld.org/docid/4c0767ff2.html [accessed 21 August 2013] Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), pmbl., U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028, at 121, (Oct. 24, 1970) Letter dated 7 Oct. 2001 from the Permanent Representative of the USA to the UN addressed to the President of the Security Council, UN Doc S/2001/946 Letter dated 7 Oct. 2001 from the Chargé d’affaires a.i. of the Permanent Mission of the UK to the UN addressed to the President of the Security Council, UN Doc S/2001/947.

  55  

U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 27 August 2013] UN General Assembly, Definition of Aggression, 14 December 1974, A/RES/3314, available at: http://www.refworld.org/docid/3b00f1c57c.html [accessed 26 August 2013] U.N. General Assembly, Note [transmitting report of the High-level Panel on Threats, Challenges and Change, entitled "A more secure world : our shared responsibility"], 2 December 2004, A/59/565, available at: http://www.refworld.org/docid/47fdfb22d.html [accessed 25 August 2013] (ICCPR) UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 27 August 2013] U.N. Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, P10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (Mar. 29, 2004). UN Security Council Doc. S/PV.2615 4 October 1985. U.N. Security Council Doc. S/PV.4370 12 September 2001. U.N. Security Council Doc. S/PV.5489 14 July 2006. U.N. Security Council Doc. UN Doc. S/2002/1012. UN Security Council, Resolution 573 (1985) Adopted by the Security Council at its 2615th meeting, on 4 October 1985, 4 October 1985, S/RES/573 (1985), available at: http://www.refworld.org/docid/3b00f175c.html [accessed 26 August 2013] UN Security Council, Security Council Resolution 1566 (2004) Concerning Threats to International Peace and Security Caused by Terrorism, 8 October 2004, S/RES/1566 (2004), available at: http://www.refworld.org/docid/42c39b6d4.html [accessed 21 August 2013] SPECIAL RAPPORTEUR ON EXTRAJUDICIAL EXECUTIONS, Use of Force During Armed Conflict, in UN SPECIAL RAPPORTEUR ON EXTRAJUDICIAL EXECUTIONS HANDBOOK 11 (2010), available at http://www.extrajudicialexecutions.org

  56  

Disclosures of the United States Bellinger, J. Legal Adviser in the Department of State. Discussion at the Opinio Juris weblog, ‘‘Armed conflict with al Qaida: a response’’, 16 January 2007, available at http://www.opiniojuris.org/posts/1169001063.shtml (last visited 12 May 2007). Brennan, John. O. Assistant to the President for Homeland Security and Counter- terrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept. 16, 2011), http://www .whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our -security-adhering-our-values-an. Obama’s Speech on Drone Policy, May 23, 2013, New York Times Transcript available at: http://www.nytimes.com/2013/05/24/us/politics/transcript-of-obamas-speech-on-drone-policy.html?pagewanted=all&_r=0 White House, (6 September 2006) ‘President’s Speech on the Global War on Terror’ The White House, Office of the Press Secretary <http://www.america.gov/st/texttrans- english/2006/September/20060906155503eaifas0.8319666.html> White House, (22 May 2013) Attorney General Holder Letter: Available at http://www.justice.gov/slideshow/AG-letter-5-22-13.pdf White House, (23 May 2013): U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities. Available at http://www.whitehouse.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism U.S. National Security Strategy 2002 available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/

Treaties and Documentation of International Organizations International Committee of the Red Cross (ICRC), Summary Report, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities 66 (Feb. 6, 2008), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-re- port_res/$File/2008-05-report-dph-2008-icrc.pdf. International Committee of the Red Cross (ICRC), Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, May 2009, available at: http://www.refworld.org/docid/4a670dec2.html [accessed 21 August 2013] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, available at: http://www.refworld.org/docid/3ddb8f804.html [accessed 21 August 2013]

  57  

International Law Association, Committee on the Use of Force, Initial Report on the Meaning of Armed Conflict in International Law 1–2 (2008), http://www.ila-hq.org/download.cfm/docid/ 0C19D883-3312-4731-92C4A18A55147597 (Accessed 21/08/13) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 U.N.T.S Reservation of the United Kingdom to Arts 1(4) and 96(3) July 2 2002 of Additional Protocol I. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Miscellaneous Sources

Anderson, Kenneth, ‘Blog for Harold Koh’s ASIL Speech’ Opinio Juris Blog (25 March 2010) <http://opiniojuris.org/2010/03/25/bleg-for-harold-kohs-asil-speech> accessed 8 August 2013. Attorney General Lord Goldsmith http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo040421/text/40421-07.htm Bethlehem ‘International Law and the Use of Force: the Law as It Is and as It Should Be’ (written evidence to the Select Committee on Foreign Affairs – Minutes of Evidence, 8 June 2004), available at: <www. publications.parliament.uk/pa/cm200304/cmselect/cmfaff/441/4060808.htm> Bureau of Investigative Journalism, 2013, Covert War on Terror – The Datasets, http://www.thebureauinvestigates.com/category/projects/drone-data/ Cassese, Antonio. (2003) Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law, 20, available at: <http://www.stoptorture.org.il//eng/images/uploaded/publications/64.pdf> Emerson 24 May 2013 UN rapporteur Emmerson hails 'historic' Obama drone vow Accessed at http://www.bbc.co.uk/news/world-asia-22653476 Heller, Kevin. J. The DoJ White Paper’s Confused Approach to Imminence (and Capture) Opinio Juris Blog (5 Feb 2013) <http://opiniojuris.org/2013/02/05/the-doj-white-papers-confused-approach-to-imminence-and-capture/> Heller, Kevin J. Two Problems with the “Near Certainty” Standard Opinio Juris Blog (24 May 2013) <http://opiniojuris.org/2013/05/24/a-thought-experiment-concerning-the-near-certainty-standard/>

  58  

Hernandez, Gleider. Obama’s Counter-Terrorism Speech: A Turning Point or More of the Same? EJIL: Talk! (27 May 2013) <http://www.ejiltalk.org/obamas-counter-terrorism-speech-a-turning-point-or-more-of-the-same/#more-8289> Israel Ministry of Foreign Affairs, Cabinet Communique, 16 July 2006. http://www.mfa.gov.il/mfa/pressroom/2006/pages/cabinet%20communique%2016-jul-2006.aspx (Accessed 25/05/13) Milanovic, ‘Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?’ EJIL: Talk! (10 January 2010) <http://www.ejiltalk.org/drones-and- targeted-killings-can-self-defense-preclude-their-wrongfulness> Reuters ‘Qaeda unveils “strategy of a thousand cuts”’ (Dubai, 21 November 2010) <http://www.reuters.com/article/2010/11/21/us-yemen-qaeda-plot- idUSTRE6AK2CU201011214 accessed 3 July 2011.> U.K. Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict 20 (2004) Treaties and Other International Acts of the Unites States of America 363. Hunter Miller edition.,1934. Whitaker, B. ‘Al-Qaida Suspect Killed in Yemen Car Blast’ The Guardian (London, 5 November 2002) <www.guardian.co.uk/world/2002/nov/05/alqaida.terrorism>