Over-the-Horizon Drone Strikes in an Ongoing Global War: Afghanistan and Beyond

• Author: Laura A. Dickinson
• Position: Oswald Symister Colclough Research Professor and Professor of Law, George Washington University
• Pages: 283-290

Over-the-Horizon Drone Strikes in an Ongoing

Global War: Afghanistan and Beyond

Laura A. Dickinson*

In August 2021, twenty years after the United States entered Afghanistan, the

Biden administration withdrew all U.S. armed forces, and President Biden pro-

claimed that the “longest war in American history” was finally over.

1

President Joseph Biden, Remarks by President Biden on a Successful Counterterrorism Operation

in Afghanistan, White House (Aug. 1, 2022), https://perma.cc/4RKX-E3LH.

Yet, at the

same time Biden and senior officials in his administration made it clear that the

United States would continue to conduct “over the horizon” operations to target

terrorists in Afghanistan.

2

Meanwhile, Biden administration lawyers argued in

court proceedings related to Guanta

´namo detainees that the war in Afghanistan

was actually ongoing and was not over at all.

3

For a summary of these statements, see Laura A. Dickinson, Still at War: The Forever War Legal

Paradigm in Afghanistan, JUST SECURITY (Apr. 14, 2022), https://perma.cc/MK75-DQ5R.

These somewhat contradictory statements raise questions about the interna-

tional legal framework or frameworks the United States is embracing as it contin-

ues to fight the so-called “War on Terror” in Afghanistan and beyond. The

statements by Biden administration lawyers at Guanta

´namo in particular indicate

that, notwithstanding Biden’s end-of-war speech, the Administration views oper-

ations against al Qaeda and other terrorist groups as part of an ongoing transna-

tional armed conflict that includes Afghanistan, to which the law of armed

conflict applies. The war paradigm as a matter of international law generally

gives the United States more legal leeway in its extraterritorial counterterrorism

operations than other international legal paradigms applicable in peacetime, such

as international human rights law and the jus ad bellum.

4

In particular, the law of

armed conflict permits states to detain enemy forces or use lethal force against

them.

5

Such acts would be more difficult to justify under either international

human rights law or the jus ad bellum.

6

The availability of unmanned aerial vehicles (commonly referred to as drones)

to conduct lethal force operations helps to make it possible for U.S. officials to

maintain their adherence to this war paradigm as a matter of international law on

the one hand, while simultaneously touting the end of war in political speeches

largely aimed at domestic U.S. audiences on the other. Because drones provide a

mechanism for conducting operations remotely in regions where U.S. armed

* Oswald Symister Colclough Research Professor and Professor of Law, George Washington

University. © 2023, Laura A. Dickinson.

1.

2. Id.

3.

4. For a more in-depth analysis of this issue, see Laura A. Dickinson National Security Policymaking

in the Shadow of International Law, 2021 UTAH L. REV. 629 (2021) [hereinafter NATIONAL SECURITY

POLICYMAKING].

5. See id.

6. See id.

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