JURIST Guest Columnist Laurie Blank of Emory University School of Law says that the current US policy of justifying all targeted strikes with reference to both armed conflict and self-defense has a detrimental effect on both current implementation and future development of the law…

US targeted strikes on al Qaeda and other terrorist operatives outside Afghanistan and the border regions of Pakistan have triggered extensive debate about the lawfulness of such strikes, the strategic effectiveness of drone strikes, the political and diplomatic ramifications and other questions. Within the framework of international law, several questions loom large, including: what are the limits of self-defense against non-state actors; who falls within the definition of enemy in an armed conflict with terrorist groups, and what and where are the parameters of such a conflict with terrorist groups — to name a few.

These questions are challenging and significant, without a doubt. Unfortunately, the current US posture of justifying all targeted strikes with reference to both armed conflict and self-defense does nothing to advance efforts to resolve those questions. Indeed, this blurring of legal lines and legal paradigms has a detrimental effect on both current implementation and future development of the law.

From the perspective of the policymaker, the use of both justifications without further distinction surely offers greater flexibility and potential for action in a range of circumstances. To the extent such flexibility does not impact the implementation of the relevant law or hinder the development and enforcement of that law in the future, it may well be an acceptable goal. That is not the case here, however.

Defense Secretary Leon Panetta’s response during an interview on 60 Minutes earlier this week offers a telling example of these problems. When asked the legal justification for killing Anwar al-Awlaqi, he responded that al-Awlaqi is a terrorist whose goal is to kill Americans and that if he were in the US, he would be entitled to due process; but that if a terrorist is out on the battlefield and threatening the US, he is an enemy combatant. If an enemy combatant “holds a gun to your head, you fire back.”

Here the mixing of paradigms and blurring of legal authority is particularly acute. On one level, the language is of armed conflict: “battlefield;” “enemy combatant.” At the same time, the explanation seems to draw on the international law of self-defense and questions of imminence and necessity: “due process;” “threat;” “holds a gun to your head.” Beyond the fact that no precise justification is offered for any individual strike in the current approach, the immediate consequence of this blurring of lines is to inappropriately mix legal authorities with unfortunate effects.

First, the law of war allows for targeting of enemy personnel on the basis of status as a first resort; questions of imminence and threat do not come into play. In contrast, outside of armed conflict — and even when using force in self-defense — international law does not provide for the use of force as a first resort. Thus, targeting in self-defense depends entirely on the application of key principles of imminence, necessity and alternatives, in addition to the obligations of distinction, proportionality and precautions.

Without more, the contrast in the nature of targeting authority poses a stark picture when the lines are blurred. Where can the US use force as a first resort under law of war targeting authority? And against whom? These are the essential questions of the day, in many ways, and yet the use of both armed conflict and self-defense justifications does nothing to help resolve these questions. In fact, it may well exacerbate the challenges.

Other examples include whether there is an obligation to capture rather than kill, as was highlighted in the debates after the killing of Osama Bin Laden. Although that particular incident raised little questions in that regard — as the operational leader of al Qaeda, Bin Laden was a legitimate target in the course of an armed conflict — the existence of the debate demonstrates how blurring the lines can cause obligations and parameters from one framework to bleed into the other.

For example, imagine the consequences for units on patrol if, after coming under fire from enemy forces, they were required to first offer those forces an opportunity to surrender before firing back. At the same time, the insinuation that the whole world is a battlefield in a global armed conflict puts millions of innocent civilians in harm’s way. The law of war accepts incidental casualties as the result of attacks on lawful targets, within the bounds of the principle of proportionality; human rights law, which is the relevant paradigm governing all uses of force outside of armed conflict, contemplates no such casualties. The difference between the two — as simple as whether someone lives in an area considered part of the “battlefield” — can literally mean the difference between life and death.

The US may be seeking flexibility in using both legal justifications at the same time without careful delineation. Flexibility has its benefits, to be sure. But the failure to engage directly with the tough issues that lie at the heart of the distinction between where a state is acting as part of an armed conflict and where it is acting solely in legitimate self-defense against a terrorist or other threat is, ultimately, a wasted opportunity to promote greater development in the law going forward. Non-answers to hard questions may be easy, but they are rarely productive in the end.

Laurie Blank is the Director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in 2007. Previously, she was a program officer in the Rule of Law Program at the US Institute of Peace in Washington, DC, where she ran a working group on New Actors in the Implementation and Enforcement of International Humanitarian Law.

Suggested citation: Laurie Blank, Blurring the Legal Lines on Targeted Strikes, JURIST – Forum, Feb. 1, 2012, http://jurist.org/forum/2012/02/laurie-blank-targeted-strikes.php.