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Published online by Cambridge University Press: 24 June 2016
The laws of war and international human rights law (IHRL) overlap, often with competing obligations. When two or more areas of the law overlap, political agents attempt to address these areas of ambiguity with interstitial rules. However, a lack of consensus on interstitial rules can destabilise the law, leading to increased contestation of legal norms and principles. Such is the case for international law in counterterrorism. Prior to the 11 September 2001 attacks (9/11), international agreements and US domestic practices placed counterterrorism within the framework of law enforcement. After 9/11, the Bush Administration replaced law enforcement with armed conflict and the laws of war as the dominant paradigm for counterterrorism, but this decision, among other legal justifications in the War on Terror, has been contested by the international legal community. As IHRL still applies in law enforcement operations, international law in counterterrorism now sits within a contested overlap of IHRL and the laws of war. The contestation of US policies in the War on Terror, including the use of drone strikes in particular, is a product of this unresolved overlap and the lack of clear interstitial rules. Lacking these rules, US counterterrorism policies risk undermining the rule of law.
1 See ‘Testimony of WC Banks’ in House of Representatives, Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (Rise of the Drones II: Examining the Legality of Unmanned Targeting, 28 April 2010, available at <https://fas.org/irp/congress/2010_hr/drones2.pdf> accessed 9 February 2016).
2 Similarly, a report from the Stimson Center on US drone policy states that ‘The legal norms governing armed conflicts and the use of force look clear on paper, but the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice.’ Gen. JP Abizaid, and R Brooks, Recommendations and Report of the Task Force on US Drone Policy (2nd edn, Stimson Center, April 2015) 12 available at <http://www.stimson.org/sites/default/files/file-attachments/recommendations_and_report_of_the_task_force_on_us_drone_policy_second_edition.pdf> accessed 8 March 2016; and Brooks states that ‘Thirteen years after the 9/11 attacks, we’re still going around in circles, unable to find satisfactory answers to even the most basic legal questions.’ R Brooks, ‘Duck-Rabbits and Drones: Legal Indeterminacy in the War on Terror’ (2014) 28 Stanford Law & Policy Review 302. For further discussion of strains on international law in the War on Terror see M Schmitt, ‘21st Century Conflict: Can the Law Survive?’ (2007) 8 Melbourne Journal of International Law 443; M Schmitt, ‘Asymmetrical Warfare and International Humanitarian Law’ (2008) 62 The Air Force Law Review 1. For a contrasting argument see Rona, G, ‘Interesting Times for International Humanitarian Law: Challenges from the “War on Terror”’ (2005) 17(1-2) Terrorism and Political Violence 157.CrossRefGoogle Scholar
3 This version of interstitial law was first articulated by Lowe. As Lowe notes, interstitial rules are those ‘operating in the interstices between … primary norms’. In this sense, interstitial rules are secondary norms which modify primary norms, a distinction first articulated by Hart. For similar concepts in international law scholarship, see Arosemena on meta-rules, or Reinold and Zürn on secondary rules in international law, which they say are similar to ‘concepts such as legalization, procedural politics, interstitial lawmaking, etc’. See Lowe, V, ‘The politics of law-making: are the method and character of norm creation changing?’ in Byers, M (ed), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press, New York, NY, 2000) 213 Google Scholar; Hart, HLA, The Concept of Law (Oxford University Press, Oxford, 1961)Google Scholar; Arosemena, G, ‘Conflicts of rights in international human rights: A meta-rule analysis’ (2013) 2(1) Global Constitutionalism: Democracy, Human Rights and the Rule of Law 6 CrossRefGoogle Scholar; Reinold, T and Zürn, M, ‘“Rules about rules” and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making’ (2014) 3(2) Global Constitutionalism: Democracy, Human Rights and the Rule of Law 247–8.CrossRefGoogle Scholar
4 Evangelista, M, ‘Introduction: The American Way of Bombing’ in Evangelista, M and Shue, H (ed), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press, Ithaca, NY, 2014) 2.Google Scholar
5 For a discussion of international law in counterterrorism in Israel, see G Blum and P Heymann, ‘Law and Policy of Targeted Killing’ (2010) 1 Harvard National Security Journal 145.
6 For references to interstitial law, see Lowe (n 3); Reinold and Zürn (n 3); M Finnemore and SJ Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2001) 55(3) International Organization 743; B Simmons, ‘International Law’ in W Carlsnaes, T Risse-Kappen and BA Simmons (eds), Handbook of International Relations (Sage Publications, London, 2002); F Kratochwil and JG Ruggie, ‘International Organization: A State of the Art or an Art of the State’ (1986) 40(4) International Organization 770; H Farrell and A Héritier, ‘Introduction: Contested Competences in the European Union’ (2007) 30(2) West European Politics (Special issue: Contested Competences in Europe: Incomplete Contracts and Interstitial Institutional Change) 227. Reus-Smit has also identified an ‘interstitial’ conception of politics tied to ‘multiple “demands for institutions”’, and the sources of those institutions’ legitimacy, see C Reus-Smit, ‘Politics and International Legal Obligation’ (2003) 9(4) European Journal of International Relations 594.
7 This distinction of primary and secondary rules comes from Hart (n 3). Also see Lowe (n 3) 212–13.
8 J Dill, ‘The Informal Regulation of Drones and the Formal Legal Regulation of War’ (2015) 29(1) Ethics and International Affairs 57.
9 For undermining of the rule of law and legal restraints on force, see MJ Boyle, ‘The legal and ethical implications of drone warfare’ (2015) 19(2) The International Journal of Human Rights 105; GS Corn, ‘Self-defense Targeting: Blurring the line between the jus ad bellum and the jus in bello’ in K Watkin and AJ Norris (eds), Non-international Armed Conflict in the Twenty-first Century (Naval War College, Newport, RI); Brooks (n 2); R Brooks, ‘Drones and the International Rule of Law’ (2014) 28(1) Ethics and International Affairs 83. For undermining of human rights norms, see R Heller, M Kahl and D Pisoiu, ‘The “dark” side of normative argumentation—The case of counterterrorism policy’ (2012) 1(2) Global Constitutionalism: Human Rights, Democracy and the Rule of Law 278. For undermining the efficacy of counterterrorism, see House of Representatives, Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1, testimony of ME O’Connell) 23.
10 Lowe (n 3) 212–21.
11 ibid 213–14.
12 This process draws similarities to normative contestation outlined by Wiener. See A Wiener, ‘Contested Compliance: Interventions on the Normative Structure of World Politics’ (2004) 10(2) European Journal of International Relations 189; A Wiener, ‘Contested Meanings of Norms: A Research Framework’ (2007) 5(1) Comparative European Politics 1. For another perspective on the ‘interpretive’ aspects of international law, see I Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, Oxford, 2012).
13 For ambiguity in law applicable to counterterrorism, see Brooks (n 9) 84, 88; DR Brunstetter and A Jimenez-Bacardi, ‘Clashing over drones: the legal and normative gap between the United States and the human rights community’ (2015) 19(2) The International Journal of Human Rights 181, 185. For ambiguity in international law in general, see M Byers, ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’ (2004) 10 Global Governance 165.
14 For a similar argument regarding the significance of context for international law, see M Hirsch, ‘The Sociology of International Law: Invitation to Study International Rules in Their Social Context’ (2005) 55(4) The University of Toronto Law Journal 891.
15 The view that change can occur outside of treaty creation when the law is contested is accepted by the New Haven School of International Law, constructivist international relations and critical legal studies. This approach is in contrast to textualist approaches to international law, which see law as cemented in its written word, or legalist approaches, which assume that legal rules are reflective of reality. However, in some areas of international law, particularly in highly technical or one-off agreements, the possibility of changing legal meanings may be less relevant. This is, for example, a criticism that Gardiner notes of MacDougal and the New Haven School’s approach to treaty interpretation. In such cases, the laws have been written so as to avoid potential reinterpretation or to find it unnecessary. For further discussion of the importance of interpretation in international law, see Gardiner, R, Treaty Interpretation (1st edn, Oxford University Press, Oxford, 2008) 65–6Google Scholar; MS MacDougal, HD Lasswell and JC Miller, The interpretation of international agreements and world public order: Principles of content and procedure (New Haven Press, New Haven, CT, 1994); I Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1990) 12 Michigan Journal of International Law 371; Johnstone, I, The Power of Deliberation: International Law, Politics and Organizations (Oxford University Press, New York, NY, 2011).CrossRefGoogle Scholar
16 United States v Little Lake Misere Land Co., Inc., 412 U.S. 580, U.S. Supreme Court, No. 71-1459 (18 June 1973).
17 The legal interpretations of international courts, such as the International Court of Justice, the International Criminal Court and the European Court of Justice, contribute to the process of legal interpretation, but do not have the same form of institutional authority compared to domestic courts. The international context lacks a singular, agreed upon ‘impartial interpreter of the law’, see Johnstone, ‘Treaty Interpretation’ (n 15) 372.
18 For a discussion of institutional replacement in international law, see MP Cottrell, ‘Legitimacy and Institutional Replacement: The Convention on Certain Conventional Weapons and the Emergence of the Mine Ban Treaty’ (2009) 63(2) International Organization 217.
19 For a discussion of the importance of argumentation in law, see S Toope, ‘Emerging Patterns of Governance and International Law’ in M Byers (n 3). For a discussion of the various political actors relevant to legal interpretation and contestation, see Johnstone’s theory of interpretive communities, Johnstone, ‘Treaty Interpretation’ (n 15); Johnstone, The Power of Deliberation (n 15). For a discussion of contestation in social norms, see Wiener, ‘Contested Compliance’ (n 12).
20 C Reus-Smit, The Politics of International Law (Cambridge University Press, Cambridge, 2003). Discourse and language have long been at the centre of the constructivist approach to international law: Onuf identified law as ‘commitment rules’ produced through the commissive speech-acts of political agents, and Kratochwil argued that the force of international law is dependent upon its place in communicative reasoning processes. Onuf, N, World of Our Making: Rules and Rule in Social Theory and International Relations (Routledge, New York, NY, 2013)Google Scholar; Kratochwil, F, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press, New York, NY, 1989).CrossRefGoogle Scholar
21 Kratochwil (n 20).
22 Kratochwil, F, The Status of Law in World Society: Meditations on the Role and Rule of Law (Cambridge University Press, Cambridge, 2014) 65–6.CrossRefGoogle Scholar
23 For constructivist perspectives on the relationship of language to context, see Searle, J, The Construction of Social Reality (The Free Press, New York, NY, 1995);Google Scholar Onuf (n 20); Kratochwil (n 20); Kratochwil (n 22). For a discussion of how political actors argue to construct agreed definitions of an underlying context and applicable social laws and rules, see T Risse, ‘“Let’s Argue!”: Communicative Action in World Politics’ (2000) 54(1) International Organization 1; Reus-Smit (n 6); I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’ (2003) 14(3) European Journal of International Law 437.
24 The notion that customary international law is based in interpretation is contested, as public international law scholarship would instead describe this process in terms of the ‘ascertainment’ of customary law, see JL Kunz, ‘The Nature of Customary International Law’ (1953) American Journal of International Law 662–9.
25 Lowe makes this point, arguing that the employment of interstitial law ‘does not depend upon it having normative force of the kind held by primary norms of international law’ as does the employment of customary international law. Lowe (n 3) 217.
26 Sir A Watts, ‘The Importance of International Law’ in M Byers (n 3) 15. It is also important to note that custom is based in state practice, separate from opinio juris. However, Price argues that the distinction between these two elements is not as clear as it is made out to be. R Price, ‘Emerging customary norms and anti-personnel landmines’ in C Reus-Smit (n 20).
27 See Legal Information Institute at Cornell University, Opinio juris (international law), available at <https://www.law.cornell.edu/wex/opinio_juris_international_law> accessed 22 September 2015.
28 ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (International Law Commission, Report of the Study Group of the International Law Commission, 13 April 2006) available at <http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf> 65–101 accessed 19 February 2016. For a discussion of this report and the conflict of legal ‘regimes’, see Cassimatis, AE, ‘International Humanitarian Law, International Human Rights Law, and Fragmentation of International Law’ (2007) 56(3) International and Comparative Law Quarterly 14–17.CrossRefGoogle Scholar
29 For a discussion of the Gabcikovo Case see Lowe (n 3) 215–16. For a discussion of the overlap and contestation of trade and environmental, labour, women’s rights and other interests, see ’Brien, R O, Goetz, AM, Sholte, JA and Williams, M, Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (Cambridge University Press, Cambridge, 2000).Google Scholar
30 Blum and Heymann provide an overview of the legal and strategic implications of choosing the war paradigm versus the law enforcement paradigm, and the difficulties of choosing either. As they note, the individualised character of targeting in counterterrorism operations, particularly in the use of drone strikes against a specific target, is more reminiscent of a law enforcement approach. Likewise, they note that the killing of an individual based on ‘blame rather than status’, the difficulties in identification of a target, and the use of targeted killing outside of a clearly defined battlefield all suggest the war paradigm is not a perfect fit. Nonetheless, they find that the ‘continuous and systematic’ nature of the US targeted killing campaign, in particular, is better suited to the war paradigm, and that applying peacetime law to counterterrorism might erode those rules. See Blum and Heymann (n 5) 147–8, 156, 168.
31 GS Corn, ‘Triggering the Law of Armed Conflict’ in GS Corn et al. (eds), The War on Terror and the Laws of War: A Military Perspective (Oxford University Press, New York, NY, 2014) 36.
32 The powers and duties afforded to States in pre-September 11 counterterrorism agreements infer the use of criminal proceedings against a suspected terrorist. This includes The Convention on offences and certain other acts committed on board aircraft, signed at Tokyo on 14 September 1963 (see art 15, section 1); the Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking) of December 16, 1970 at the Hague (see art 7); the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of September 23, 1971 at Montreal (see art 7); the Convention of the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents adopted by the General Assembly of the United Nations on December 14, 1973 at New York (see art 7); the International Convention Against the Taking of Hostages adopted by the General Assembly of the United Nations on December 17, 1979 at New York (see art 8); and the Resolution Adopted by the United Nations General Assembly to Prevent International Terrorism of December 9, 1985 (see note 7).
33 ‘Texts of the Statements Adopted by Leaders of Seven Industrial Democracies (At the Tokyo Summit Meeting Concerning Terrorism)’ in Reisman, M and Antoniou, CT, The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict (Vintage Books, New York, NY, 1994) 304–6.Google Scholar
34 J Dugard, ‘Bridging the gap between human rights and humanitarian law: The punishment of offenders’ (1998) 324 International Review of the Red Cross 445.
35 Ibid.
36 See ‘International Legal Protection of Human Rights in Armed Conflict’ (United Nations, Office of the High Commissioner for Human Rights, HR/PUB/11/01, November 2011) available at <http://www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf> accessed 20 February 2016; P Kennedy and GJ Andreopoulos, ‘The Laws of War: Some Concluding Reflections’ (1994) in M Howard, GJ Andreopoulos and MR Shulman (eds), The Laws of War: Constrains on Warfare in the Western World (Yale University Press, New Haven, CT, 1994) 215; R Kolb, ‘The relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human rights and the 1949 Geneva Conventions’ (1998) 324 International Review of the Red Cross 409; Dugard (n 34); Geneva Academy of International Humanitarian Law and Human Rights, Rule of Law in Armed Conflicts Project, available at <http://www.geneva-academy.ch/RULAC/interaction_between_humanitarian_law_and_human_rights_in_armed_conflicts.php> accessed 31 January 2016; C Garraway, ‘The Law Applies, But Which Law? A Consumer Guide to the Laws of War’ in M Evangelista and H Shue (n 4); L Hill-Cawthorne, ‘Humanitarian Law, Human Rights Law and the Bifurcation of Armed Conflict’ (2015) 64(2) International and Comparative Law Quarterly 293; Brunstetter and Jimenez-Bacardi (n 13); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep, 1996; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America, Merits, Judgement, ICJ Rep, 1986); V Chetail, ‘The Contribution of the International Court of Justice to international humanitarian law’ (2003) 85(850) International Review of the Red Cross 235.
37 ‘Protection of the human rights of civilians in armed conflict’ (United Nations Human Rights Council, A/HRC/RES/9/9, 18 September 2008) available at <http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_9_9.pdf> accessed 20 February 2016.
38 ‘International Legal Protection of Human Rights in Armed Conflict’ (n 36).
39 Ibid 54.
40 Ibid 59.
41 Ibid 61.
42 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949; 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.
43 Pictet et al., writing commentary for the ICRC, describe IACs as ‘any difference arising between two states and leading to the intervention of members of the armed forces’. The ICRC states that an accepted understanding of NIACs is that they apply to confrontations between the armed forces of a state and a non-governmental armed group. J Pictet et al., ‘Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary’ (International Committee of the Red Cross, Geneva, 1952); ‘How is the Term “Armed Conflict” Defined in International Humanitarian Law?’ (International Committee of the Red Cross, Opinion paper, Geneva, 2008) available at <https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf> 32, accessed 20 February 2016.
44 The ICRC Opinion paper (n 43) identifies two judgments from the International Criminal Tribunal for the former Yugoslavia – The Prosecutor v Dusko Tadic and The Prosecutor v Fatmir Limaj – as the root of these definitions.
45 Hamdan v Rumsfeld, U.S. Supreme Court, Case no. 126 S. Ct. 2749, decided 29 June 2006.
46 For long-range artillery, exploding bullets and drone warfare, see S Carvin, ‘Getting drones wrong’ (2015) 19(2) The International Journal of Human Rights 127. For chemical weapons see RM Price, The Chemical Weapons Taboo (Cornell University Press, Ithaca, NY, 1997). For cyber warfare see J Maogoto, Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century (Routledge, New York, NY, 2015).
47 Buchanan and Keohane, and Banks discuss the difficulties of the law in ‘irregular’ or ‘asymmetric’ warfare. However, whether or not this development is new is open for debate, as is the neutrality of the terms ‘irregular’ or ‘asymmetric’, which Winter argues helps to legitimise the position of the powerful state vis-à-vis the ‘irregular’ and weaker opponent. See Buchanan, A and Keohane, RO, ‘Toward a Drone Accountability Regime’ (2015) 29(1) Ethics and International Affairs 19–20 Google Scholar; Banks, WC, ‘Introduction: Toward an Adaptive International Humanitarian Law: New Norms for New Battlefields’ in Banks, WC (ed), New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare (Columbia University Press, New York, NY, 2011);Google Scholar Y Winter, ‘The Asymmetric War Discourse and Its Moral Economies: A Critique’ (2011) 3(3) International Theory 488.
48 See K Ryan, ‘What’s Wrong with Drones? The Battlefield in International Humanitarian Law’ in Evangelista and Shue (n 4) 209, 211.
49 See Kreps, S and Kaag, J, ‘The Use of Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis’ (2012) 44(2) Polity 265–6.CrossRefGoogle Scholar
50 See D Luban, ‘The War on Terrorism and the End of Human Rights’ (2002) 22(3) Philosophy & Public Policy Quarterly 13.
51 See C Zoli, ‘Humanizing Irregular Warfare: Framing Compliance for Nonstate Armed Groups at the Intersection of Security and Legal Analyses’ in Banks (n 47).
52 See GS Corn (n 31) 66–8; J Pejic, ‘Extraterritorial targeting by means of armed drones: Some legal implications’ (2015) International Review of the Red Cross 8, 12; 31st International Conference of the Red Cross and Red Crescent, ‘Strengthening legal protection for victims of armed conflicts’ (International Committee of the Red Cross, Geneva, 2011) available at <https://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-strengthening-legal-protection-11-5-1-1-en.pdf> 48–9 accessed 20 February 2016; ‘Testimony of ME O’Connell’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1) 18–19, 23.
53 M Braun and DR Brunstetter, ‘Rethinking the criterion for assessing CIA-targeted killings: Drones, proportionality and jus ad vim’ (2013) 12(4) Journal of Military Ethics 93. For further discussion of jus ad vim see Boyle (n 9).
54 ‘Testimony of D Glazier’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1) 69.
55 Buchanan and Keohane (n 47); C Enemark, ‘Drones, Risk, and Perpetual Force’ (2014) 28(3) Ethics and International Affairs 365; Finkelstein, C, ‘Targeted Killing as Preemptive Action’ in Finkelstein, C, Ohlin, JD and Altman, A (eds), Targeted killings: Law and morality in an asymmetrical world (Oxford University Press, Oxford, 2012).CrossRefGoogle Scholar
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57 ‘9/11 Address to the Nation’ (President George W. Bush, Oval Office, Washington D.C., September 11, 2001) available at <http://www.americanrhetoric.com/speeches/gwbush911addresstothenation.htm> accessed 20 February 2016.
58 Ibid.
59 ‘Address to a Joint Session of Congress and the American People’ (President George W. Bush, September 21, 2001) available at <http://www.theguardian.com/world/2001/sep/21/september11.usa13> accessed 20 February 2016.
60 Resolution 1368 (United Nations Security Council, UN Document S/RES/1368, 12 September 2001); Resolution 1373 (United Nations Security Council, UN Document S/RES/1373, 28 September 2001.
61 For a list of these states and a description of their participation, see ‘Operation Enduring Freedom: Foreign Pledges of Military & Intelligence Support (Congressional Research Service, Report for Congress, 17 October 2001) available at <http://fpc.state.gov/documents/organization/6207.pdf> accessed 31 January 2016.
62 Johnstone, The Power of Deliberation (n 15) 83–4.
63 See A Smith, ‘The Politics of Negotiating the Terrorist Problem in Indonesia’ (2005) 28(1) Studies in Conflict & Terrorism 37; G Fealy, ‘Islamic Radicalism in Indonesia: The Faltering Revival?’ (2004) 4 Southeast Asia Affairs 118.
64 See R Wedgwood and K Roth, ‘Combatants or Criminals? How Washington Should Handle Terrorists’ (2004) 83 Foreign Affairs; K Roth, ‘The Law of War in the War on Terror: Washington’s Abuse of “Enemy Combatants”’ (2004) 83(1) Foreign Affairs 2; K Roth, ‘After Guantánamo: The Case against Preventive Detention’ (2008) 87(3) Foreign Affairs 9.
65 Luban (n 50) 9.
66 Johnstone, The Power of Deliberation (n 15) 82. The International Law Commission considered whether an international organisation (and hence a non-state actor) could be party to an armed conflict in its annual report from 1980, and concluded that self-defence claims could only be made between states, see ‘Commentary to Part VI Miscellaneous Provisions’ (International Law Commission, Yearbook of the ILC, vol 2, Part 1, note 3, 1980). For further discussion of a right to self-defence against non-state actors, see O Schachter, ‘The Use of Force Against Terrorists in Another Country’ (1989) 19 Israel Yearbook on Human Rights 209; GS Corn, ‘Legal Basis for the Use of Armed Force’ in Corn et al. (n 31) 24–30. For a discussion of Israel’s construction of a wall in self-defence against nonstate actors as contrary to international law see International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, ICJ Reps, 2004) paras 138–141.
67 Nicaragua v U.S. (n 36) para 195.
68 International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda, Judgement, ICJ Reps, 19 December 2005) 280–282.
69 For a discussion of NIAC/IAC application, transnational conflict and the Bush Administration’s avoidance of legal obligations, see GS Corn and ET Jensen, ‘Untying the Gordian Knot: A proposal for determining applicability of the laws of war to the war on terror’ (2008) 81 Temple Law Review 799; Luban (n 50) 10; Corn (n 31) 35–6, 54.
70 J Searle, ‘Monthly Updates on the Covert War: Almost 2,500 now killed by covert US drone strikes since Obama inauguration six years ago: The Bureau’s report for January 2015’ Bureau of Investigative Journalism (2 February 2015) available at <https://www.thebureauinvestigates.com/2015/02/02/almost-2500-killed-covert-us-drone-strikes-obama-inauguration/> accessed 20 February 2016. Drone strikes are part of the practice of ‘targeted killing’ or the use of premeditated lethal force against an individually selected person(s) not in custody, see Melzer, N, Targeted Killing in International Law (Oxford University Press, Oxford, 2008).CrossRefGoogle Scholar
71 In contrast, Vogel has concluded that ‘the law of armed conflict is more than adequate to govern [drones’] wartime deployment’, see R Vogel, ‘Drone Warfare and the Law of Armed Conflict’ (2010) 39(1) Denver Journal of International Law and Policy 137. The number of people killed by drone strikes during the Obama Administration was reported by Searle (n 70).
72 For example, in a May 2014 speech, President Obama stated that ‘what makes us exceptional is not our ability to flout international norms and the rule of law; it is our willingness to affirm them through our actions’. In addition, in a May 7 2013 speech, Harold Koh, previously the Legal Adviser of the US Department of State, stated ‘Under international law, [the Obama] administration has expressly recognized that US actions are constrained by the laws of war. So rather than treating this conflict as a Black Hole, this Administration has worked to translate the spirit of those laws and apply them to this new situation.’ Koh’s allusion to the ‘Black Hole’ legal approach could be read as a critique of the Bush Administration’s use of the ‘enemy combatant’ designation, and as an indication that the Obama administration is more willing than its predecessor to abide by the law. For full text of both speeches, see ‘Remarks by the President at the United States Military Academy Commencement Ceremony’ (President Barack Obama, US Military Academy-West Point, New York, 28 May 2014) available at <https://www.whitehouse.gov/the-press-office/2014/05/28/remarks-president-united-states-military-academy-commencement-ceremony> accessed 21 February 2016; ‘How to End the Forever War?’ (H Koh, Oxford Union, Oxford, UK, 7 May 2013) available at <http://graphics8.nytimes.com/packages/pdf/world/2013/KOHSPEECH.pdf> accessed February 21, 2016.
73 One exception might be the release of Guantánamo Bay detainees by the Obama Administration, which, as of February 2015, was at 88 total detainees released and, as of August 2015, included 52 potential others barring cooperation from the Pentagon. However, 532 detainees left Guantánamo before President Obama took office, suggesting that policy towards the detention centre has changed little beyond President Obama’s public declarations favouring the closure of the prison. See S Ackerman and A Holpuch, ‘Only six Guantánamo detainees released under Obama “re-engaged”.’ (5 February 2015) The Guardian, available at <http://www.theguardian.com/us-news/2015/feb/05/guantanamo-detainee-recidivism-rates-lower-obama-administration> accessed 31 January 2016; T Mack and N Youssef, ‘The Pentagon Is Keeping Half of Gitmo Locked Up–Against The White House’s Wishes’ (9 August 2015) The Daily Beast, available at <http://www.thedailybeast.com/articles/2015/08/09/he-s-keeping-half-of-gitmo-locked-up-against-the-white-house-s-wishes.html> accessed 31 January 2016.
74 Hamlily v Obama, United States District Court, D. Columbia, 616 F. Supp. 2d 63, (D.D.C. 2009). For further discussion of detainment policy in the Bush and Obama Administrations and the Military Commission Acts of 2006 and of 2009, see JA Schoettler Jr, ‘Detention of Combatants and the War on Terror’ in Corn et al. (n 31) 143–6.
75 ‘Remarks by the President at the National Defense University’ (President Barack Obama, National Defense University, Fort McNair, Washington, DC, 23 May 2013) available at <https://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university> accessed 21 February 2016.
76 Corn (n 9) 58. For further discussion of the Obama Administration’s use of self-defence as a legal justification of particular combat operations, see Boyle (n 9) 111; Brunstetter and Jimenez-Bacardi (n 13) 183; Martin, C, ‘A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict’ (2015) 19(2) The International Journal of Human Rights 233–5.CrossRefGoogle Scholar
77 For a discussion of anticipatory self-defence, see Boyle (n 9) 111. For a discussion of the expansion of individuals targeted by the Obama Administration, see A Plaw and M Fricker, ‘Tracking the Predators: Evaluating the US Drone Campaign in Pakistan’ (2012) 13(4) International Studies Perspectives 344.
78 As Corn notes, the ongoing application of self-defence suggests that the US is resorting to and executing the use of force under jus ad bellum principles, but, as jus in bello is meant to apply to the actual execution of combat operations, this has led to a conflation of these principles, as evidenced by US officials’ controversial use of jus ad bellum variants of necessity and proportionality in combat operations, see Corn (n 9) 58–9. Other counterarguments to the US approach to self-defence can be found in Boyle (n 9) 111–12; C Martin, ‘Going Medieval: Targeted Killing, Self-Defense and the Jus ad Bellum Regime’ in Finkelstein, Ohlin and Altman (n 55) 233; Brunstetter and Jimenez-Bacardi (n 13); R Christopher, ‘Imminence in Justified Targeted Killing’ in Finkelstein, Ohlin and Altman (n 55); Brooks (n 9); Brooks (n 2). For a discussion of the participation of civilian CIA personnel in the conduct of targeted strikes in counterterrorism operations, see Boyle (n 9) 119; Martin (n 76) 156–7; Pejic (n 52) 27; Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1) 11–13, 32.
79 ‘Attorney General Eric Holder Speaks at Northwestern University School of Law’ (Attorney General Eric Holder, Transcript by the United States Department of Justice, Northwestern University, Evanston, IL, 5 March 2012) available at <http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law> accessed 21 February 2016.
80 ‘Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense’. See ‘Remarks by the President at the National Defense University’ (n 75).
81 Ibid.
82 Ibid.
83 ‘Remarks by the President at the United States Military Academy Commencement Ceremony’ (n 72).
84 ‘Written Statement of Kenneth Anderson’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1)
85 ‘Testimony of ME O’Connell’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1).
86 Brooks (n 2). For further discussion of the war versus crime paradigms specific to drone warfare, see NC Crawford, ‘Accountability for Targeted Drone Strikes against Terrorists?’ (2015) 29(1) Ethics and International Affairs 39; Buchanan and Keohane (n 47) 15; A Altman, ‘Introduction’ in Finkelstein, Ohlin and Altman (n 55) 5–8; M Crenshaw, Terrorism in Context (2nd edn, The Pennsylvania State University Press, University Park, PA, 2001) 25; 31st International Conference of the Red Cross and Red Crescent (n 52) 22.
87 Pejic (n 52).
88 ‘Remarks by the President at the National Defense University’ (n 75).
89 ‘Testimony of D Glazier’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1).
90 The UNHRC report questions how the ‘associated forces’ of al-Qaeda could be considered a cohesive legal party, and whether or not the amount of violence conducted by these groups rises to the level of an armed conflict, see ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston’ (United Nations Human Rights Council, 14th Session, 28 May 2010) available at <http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf> accessed 21 February 2016. For similar claims made by the American Civil Liberties Union, see ‘Blog of Rights: Drones’ (American Civil Liberties Union, 18 November 2013) available at <https://www.aclu.org/blog/tag/drones> accessed 31 January 2016.
91 See L Tayler, ‘The Truth about the United States Drone Program’ (Human Rights Watch, Policy Review, 24 March 2014) available at <https://www.hrw.org/news/2014/03/24/truth-about-united-states-drone-program> accessed 31 January 2016; ‘USA: “Targeted killing” policies violate the right to life’ (Amnesty International, 15 June 2012) available at <http://www.amnestyusa.org/research/reports/usa-targeted-killing-policies-violate-the-right-to-life> accessed 31 January 2016.
92 ‘European Parliament resolution on the use of armed drones’ (European Parliament, 2014/2567/(RSP), 25 February 2014) available at <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+P7-RC-2014-0201+0+DOC+XML+V0//EN> accessed 21 February 2016.
93 ‘Statement by Ben Emmerson, UN Special Rapporteur on Counter-Terrorism and Human Rights concerning the launch of an inquiry into civilian impact, and human rights implications of the use of drones and other forms of targeted killing for the purpose of counter-terrorism and counter-insurgency’, (United Nations, Office of the High Commissioner of Human Rights, January 2013) available at <http://www.ohchr.org/Documents/Issues/Terrorism/SRCTBenEmmersonQC.24January12.pdf> accessed 20 February 2016.
94 For a discussion of the degradation of al-Qaeda alongside the continued application of NIAC rules, see Pejic (n 52) 17.
95 For a discussion of the US treatment of API, see Dill (n 8) 69, 112–13, 121.
96 ‘How to End the Forever War?’ (n 72).
97 JP 3-60 notes that individuals are targeted based upon how they are situated within and assets for an adversarial network, see ‘Revision of Joint Publication 3-60: Joint Targeting’ (US Joint Chiefs of Staff, 13 April 2007) available at <https://www.aclu.org/files/dronefoia/dod/drone_dod_jp3_60.pdf> accessed 21 February 2016.
98 Ibid.
99 Recently, classified documents were leaked to The Intercept further describing this process. See ‘The Drone Papers’ The Intercept, available at <theintercept.com/drone-papers> accessed 21 February 2016.
100 N Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (International Committee of the Red Cross, Geneva, May 2009) available at <https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf> accessed 21 February 2016. In a 2011 report, the ICRC stated that ‘In international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Members of irregular armed forces (eg militia, volunteer corps, etc.) whose conduct is attributable to a state party to an armed conflict are considered part of its armed forces.’ … ‘In non-international armed conflict, all persons who are not members of state armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities’, see 31st International Conference of the Red Cross and Red Crescent (n 52) 43. This guidance has met resistance as, for example, Anderson argued in the 2010 Congressional Hearing that a number of the provisions in the interpretive guidance are ‘over the edge’, and that he was ‘very surprised’ that the ICRC would put them out, given the fact that they could not command a majority of their own experts in that regard, see ‘Testimony of K Andersen’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1) 57.
101 ‘Testimony of K Andersen’ in Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Government Reform (n 1).
102 There are multiple other controversies revolving around the principle of distinction in US counterterrorism operations. For example, see the Stimson Report for problems stemming from definitions of combatancy and armed hostilities, Gen. JP Abizaid, and R Brooks (n 2). For overly permissive interpretations of distinction (as well as necessity and proportionality) see Brunstetter and Jimenez-Bacardi (n 13) 189; R Christopher (n 78) 257; and SA Shah, International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects (Routledge, New York, NY, 2014) 24. For the contested basis of distinction as in either group membership or individual conduct, see Boyle (n 9); Brunstetter and Jimenez-Bacardi (n 13) 190; Martin (n 76) 149, 159–60; D Richemond-Barak, ‘Nonstate actors in Armed Conflicts: Issues of Distinction and Reciprocity’ in Banks (n 47) 115.
103 Brunstetter and Jimenez-Bacardi (n 13) 185.
104 Brooks (n 9) 95–6.
105 President Obama has argued that the use of force in territories outside of Afghanistan (the initial purview of the AUMF) is justified by a state’s consent or the unable and unwilling criteria. Brooks (n 9) argues that this approach is ambiguous as to how a state’s consent will be evaluated, particularly when that consent appears to be covert as is arguably the case in Pakistan, and Boyle (n 9) sees the ‘unable and unwilling’ test as an erosion of external sovereignty. Issues of sovereignty in drone warfare are, according to Pejic really about the expanding application of the laws of war to wherever an adversary might be located, see Pejic (n 52) 34.
106 For a discussion of increasingly permissive legal interpretations on the use of force, see Shah (n 102) 12–13. For a discussion of the altering of safety versus combat zones, see Ryan (n 48).
