Permissible self-defense targeting and the death of bin Laden.

• Author: Paust, Jordan J.

My recent article on Self-Defense Targetings of Non-State Actors and Permissibility of Use of Drones in Pakistan, (1) and writings of the vast majority of text-writers, (2) demonstrates that use of measures of self-defense against armed attacks by non-state actors is permissible under Article 51 of the United Nations Charter and relevant customary international law even though the direct effects of responsive force will most often occur in a foreign country. (3) Nothing in Article 51 of the Charter or in general patterns of pre- and post-Charter practice and opinio juris (4) requires special express consent of the state from which the non-state actor armed attacks emanate and on whose territory a self-defense action takes place against the non-state actor. (5) Additionally, it would be demonstrably incorrect to claim that a state has no right to defend itself outside its own territory absent (1) express foreign state consent, (6) (2) attribution or imputation of non-state actor attacks to the foreign state when the foreign state is in control of non-state actor attacks, (7) or (3) the existence of a relevant international or non-international armed conflict. (8)

1. THE SELF-DEFENSE PARADIGM

   From either a moral or policy-serving perspective, a new requirement should not be imposed that there be either express foreign state consent or attribution to the foreign state in contexts where neither exists and when non-state actors engage in continual armed attacks that kill a number of persons, result in serious bodily injury of others, and are designed to spread terror. Such a new requirement would:

   most likely encourage violence and functional safe havens for those who initiate violence against other human beings. This would not appear to serve peace and security when such armed attacks are occurring or peace more generally over time when various non-state actors are prepared to engage in transnational acts of terroristic violence without regard to peace, territorial boundaries, the dictates of humanity, or the dignity of their victims. (9) With respect to the need to serve various policies at stake in the context of continual non-state actor armed attacks, including peace, security, human rights, and effective opposition to international crime, it is important to note that state sovereignty

   is not absolute under international law or impervious to its reach, territorial integrity of the state is merely one of the values preferred in the U.N. Charter, and permissible measures of self-defense under Article 51 of the Charter that are reasonably necessary and proportionate against actual armed violence must necessarily override the general impermissibility that attaches to armed intervention. (10) One should also note that the self-defense paradigm is different from both a mere law of war or law enforcement paradigm. Self-defense targetings and captures can occur with respect to the following groups: (1) direct participants in armed attacks (DPAA) whether or not an armed conflict exists that would also allow the targeting and capture of persons who are combatants; (2) civilians who are direct participants in hostilities (DPH); or (3) civilians who are unprivileged fighters engaged in a continuous combat function. (11) Whether or not lawful use of force in self-defense is undertaken in time of war or relative peace, selective use of armed force as part of permissible self-defense is not simplistically "law enforcement" or limited by what would only be authorized during law enforcement.

   Concerning the war in Afghanistan and the targeting and capture of leaders and other members of al Qaeda and the Taliban in parts of Pakistan, few would disagree with Professor Ved Nanda's observation that the de facto theatre of war or "geographical region of conflict" has expanded to include parts of Pakistan. (12) There is a porous border between Afghanistan and Pakistan that neither country effectively controls. For several years, quite deadly, injurious, and continuous "al Qaeda and Taliban armed attacks [have been] planned, initiated, coordinated, or directed from inside Afghanistan and Pakistan on U.S. military personnel in Afghanistan who are engaged in an international armed conflict." (13) The theatre of war has expanded to locations where persons directly participate in hostilities. (14)

   Professor Nanda has also recognized that self-defense targetings and captures may occur "outside the geographical region of armed conflict" or "outside the area of hostilities," so long as there is strict compliance with general principles of necessity and proportionality that govern the permissible use of lawful measures of self-defense. (15) Of course, I agree that lawful measures of self-defense can occur outside of an actual theatre of war against those who are directly participating in an ongoing process of armed attacks against the United States and/or its embassies, military personnel, and other nationals abroad. (16) For this reason, the self-defense paradigm is recognizably different from a war paradigm; the right of self-defense allows the targeting of persons wherever such forms of direct participation occur, (17) Quite clearly, significant armed attacks or attempted armed attacks have emanated from parts of Yemen, thereby permitting self-defense targeting of direct participants in Yemen. (18)

2. THE PRINCIPLES OF DISTINCTION, NECESSITY, AND PROPORTIONALITY

   When using responsive force in self-defense, either outside the context of an armed conflict or during an armed conflict, international legal principles of distinction among persons, reasonable necessity, and proportionality will condition the permissibility of responsive conduct. (19) From my perspective, armed drones are merely a particular type of weapons system. The same general principles, therefore, that condition the use of armed force in self-defense or conduct during war must be applied to the use of armed drones. If anything, some armed drones appear to have the capability of being "smart" weapons--weapons that can allow more precise forms of targeting (20)--and can avoid indiscriminate and unnecessary death, injury, or suffering, (21) Whether a weaponized drone is "smart" will depend in part on what weapons are placed on the drone and the circumstances surrounding actual use.

   In the future, drones as small as a dragonfly could be used for very precise targetings. For these reasons, it is evident that armed drones are not illegal per se, such as weapons or tactics using poisonous substances or gases, radiation poisoning, or torturous effects during an armed conflict. (22) Yet, if a drone is armed with a poisoning agent, use of that particular drone during an armed conflict would be illegal per se in view of the general and absolute ban on use of poisoned weapons and tactics under the laws of war, let alone the fact that poisoning effects are unnecessary and can produce lingering suffering.

   Human rights law generally applies at all times and in all social contexts, including war. (23) Yet, with regard to lawful targetings of those who are taking a direct part in ongoing armed attacks or hostilities, the general human right to freedom from arbitrary deprivation of life (24) will only be applicable with respect to those persons who are within the jurisdiction, actual power, or effective control of the state or other entity using a drone. (25) Therefore, it is evident that those who are being targeted, for example, by a high flying drone in a foreign country will not be protected under the general human right to life. In any event, if they are lawfully targeted in compliance with the principles of distinction, reasonable necessity, and proportionality their deaths will not be "arbitrary" within the meaning of human rights law. (26) Moreover, compliance with the principles of distinction, reasonable necessity, and proportionality provides a higher form of protection than a test based merely on what is or is not arbitrary in a given circumstance. (27)

   With respect to the laws of war, "general principles of [distinction,] reasonable necessity, and proportionality have been integrated into several provisions of Geneva law applicable during an international armed conflict." (28) As explained,

   Articles 48 and 50-51 of Protocol I to the 1949 Geneva Conventions reflect treaty-based and customary international legal requirements concerning necessity and proportionality. These include (1) the need to distinguish between civilians (who are protected from attack "unless and for such time as they take a direct part in hostilities" (29)) and lawful military targets (the so-called principle of distinction), (2) the prohibition of attacks directed at protected civilians or civilian objects as such, and (3) the prohibition of indiscriminate attacks. (30) A customary prohibition related to the prohibition of "indiscriminate" attacks (31) is the more general prohibition of unnecessary death, injury, or suffering during war, (32) one that is also partly reflected in the duty set forth in Geneva Protocol I to avoid attacks "expected to cause incidental loss of civilian life ... which would be excessive in relation to the concrete and direct military advantage anticipated." (33) Some "incidental" loss of civilian life might be foreseeable but still permissible if the requirements of reasonable necessity and proportionality are met. (34) Al Qaeda and Taliban fighters who directly participate in a process of armed attacks over time and who traverse "in and out of Afghanistan from Pakistan and their leaders are directly, continuously, and actively taking part in hostilities in Afghanistan whether or not they constantly take up the gun." (35)

   The International Committee of the Red Cross (ICRC) has recognized that such non-state fighters can also be recognized as "members" of "organized armed groups ... [that consist] of individuals whose continuous function it is to take a direct part...