Professor Michael Lewis writes in with the following guest post:
Why IHL and not Self-Defense Should be Considered the Legal Basis for the Awlaki Operation
Anwar al-Awlaki is dead, apparently killed by a US drone strike in Yemen. From the speeches given by Harold Koh and John Brennan on the subject of such operations, the legal justification for this action rests upon either the US authority under IHL or upon an exercise of self-defense. In his speech Brennan spoke of the practical convergence between US and European views on the subject of where the use of lethal force is appropriate because of flexibility within the term “imminence”. This emphasis on “imminence” implies a greater reliance upon the self-defense rationale than is perhaps wise or healthy for international law.
A primary criticism of these operations is their unilateral nature. The claim that the US may respond with military force across international borders if it feels “imminently” threatened plays directly into the hands of critics that bemoan the fact that “the US is treating the whole world is a battlefield” and warn that similar claims will be made against US interests (perhaps in places like Georgia, the Baltic states or the South China Sea) in the near future. This is particularly true if our stated intention is to finesse the term “imminence” to properly meet our situational needs.
A preferable approach is to rely upon US authority under IHL. It is broadly accepted that the US is involved in a non-international armed conflict (NIAC) with al Qaeda. Bobby’s recent article makes a strong case that AQAP could be seen as part and parcel to that conflict. Even if that is not the case, there is also an argument that AQAP and the government of Yemen are involved in a NIAC and that the US was operating with the permission of the Yemeni government in this instance.
While reliance upon IHL may satisfy the al-Awlaki operation, what about scenarios in which the “host” nation is not involved in an internal armed conflict, has not given consent and is unwilling or unable to effect the incapacitation of a dangerous individual? Doesn’t that situation require reliance upon a claim of self-defense? Not necessarily. The reason why this situation is arguably beyond the scope of IHL and requires resort to a self-defense argument is that the standard for measuring the scope of IHL in transnational armed conflicts (such as the conflict between the US and al Qaeda) is flawed.
As I argue in more detail here (pp. 7-15) the scope of IHL in NIAC’s has generally been determined by threshold of violence or Tadic factors that are not present in the scenario described above. Based upon the absence of such factors there are many who would argue that strikes in Yemen or Pakistan are occurring outside the context of IHL (or outside “hot” battlefields as Brennan termed it). While the use of such factors to determine IHL’s scope in internal NIAC’s is perfectly appropriate, using threshold of violence factors to determine the scope of IHL in transnational armed conflicts leads to anomalous results (such as the privileging of terrorist organizations that IHL in all other ways disfavors) which can be readily avoided if IHL’s scope were instead determined by neutrality law.
It is, after all, neutrality law that has traditionally determined IHL’s scope in international armed conflicts and the “unable or unwilling” standard that usually makes its way into the conversation at this point is essentially derived from the question of whether a neutral party has properly discharged its responsibilities that allow it to retain its neutral status. A nation unable or unwilling to incapacitate Osama bin Laden or Anwar al-Awlaki is failing to discharge its responsibilities as a neutral nation (as Afghanistan failed to do in 2001), technically making that nation a co-belligerent with al Qaeda.
While it is understandable that the US government would not want to take such a position because of the diplomatic constraints it places upon US freedom of action, such an approach is not only consistent with our actions up to the present time, but also far better for international law than attempting to justify our actions by pointing to a malleable definition of “imminence” that will most assuredly be used to our detriment in the near future.