Self-defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello

Author:Geoffrey S. Corn
Position:Professor of Law, South Texas College of Law, Houston, Texas
Pages:57-92
 
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IV
Self-defense Targeting: Blurring the Line
between the Jus ad Bellum and the
Jus in Bello
Geoffrey S. Corn*
I. Introduction
Conflict classification has been and will continue to be one of the most com-
plex issues arising from the intersection of national security policy and in-
ternational law. From the inception of what the United States dubbed the "Global
War on Terror," experts have been debating the meaning of the term "armed con-
flict," both international and non-international. The proliferation of remotely pi-
loted warfare has only exacerbated the uncertainty associated with the meaning of
these terms. In response, the concept of self-defense targeting emerged as an osten-
sible alternative to determining if and when anational use of armed force qualified
as an armed conflict. In essence, this theory averts the need to engage in jus in bello 1
classification of counterterror military operations by relying on the overarchingjws
ad bellum2legal justification for these operations. Self-defense targeting, or what
Professor Kenneth Anderson has called "naked self-defense,"3is offered as the U.S.
legal framework for employing combat power to destroy or disrupt the capabilities
*Professor of Law, South Texas College of Law, Houston, Texas. Previously Lieutenant Colonel,
U.S. Army, and Special Assistant to the U.S. Army Judge Advocate General for Law of War Mat-
ters. Iwould like to thank Nicholas Geohegan and Joel Glover for their excellent contributions in
support of completing this article.
Blurring the Line between the Jus ad Bellum and the Jus in BeUo
of transnational terrorist operatives.4This essay will question the validity of substi-
tuting jus ad helium principles for those of the jus in hello, and why this substitution
is afalse solution to this extremely complex conflict classification dilemma.
The attack on Osama Bin Laden's (OBL) compound in Pakistan5has exposed in
stark relief the importance of defining the legal framework applicable to the use of
military force as acounterterrorism tool. The initial focus of the public debate gen-
erated by the attack was the legitimacy of the U.S. invocation of the inherent right
of self-defense to launch anon-consensual operation within the sovereign territory
of Pakistan.6However, that focus soon shifted to another critical legal question:
even assuming the exercise of national self-defense was legitimate, what law regu-
lated the tactical execution of the operation?7By virtue of his role as the leader of al
Qaeda, was OBL alawful military objective within the meaning of the law of armed
conflict (LOAC),8and thereby subject to attack with deadly force as ameasure of
first resort? Or was he merely an international criminal, subject to a much more
limited law enforcement use of force authority? The duality of the jus belli issues
implicated by the attack generated atwo-pronged legal critique: First, did the mis-
sion violate the international legal prohibition against use of force (Jus ad bellum) 7
.
Second, did the mission trigger the law of armed conflict, or was the amount of
force employed during the mission resulting in OBL's death excessive to that which
was necessary to apprehend him? The self-defense targeting theory failed to suffi-
ciently address this duality.
The first prong of this dualistic legal debate touches on an issue that appears
well-settled in U.S. practice: the use of military force to attack individuals who are
determined to be al Qaeda or Taliban belligerent operatives. The second prong
how such attacks are legally regulated at the tactical execution levelremains a
subject of uncertainty. Both Presidents Bush and Obama (with the support of
Congress) consistently invoked the inherent right of national self-defense pursu-
ant to Article 51 of the Charter of the United Nations as the legal basis for attack-
ing al Qaeda operatives.9However, the Obama administration seems to have
superimposed an odd veneer on this authority: the concept of self-defense target-
ing. 10 Invoking the inherent right of self-defense, this theory suggests that both the
resort to armed force and the execution of specific operations are regulated by the
jus ad bellum. In essence, because attacking terrorist targets falls within the scope
of international self-defense legal authority, jus ad bellum self-defense principles
regulate the execution of combat operations used to achieve this self-defense ob-
jective, obviating the need to assess whether and what jus in bello principles apply
to these operations. Thus, so long as the targets fall within the ad bellum principles
of necessity and proportionality, attacking them is legally permissible.
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Geoffrey S. Corn
II. Background
There is nothing unusual about the assertion that the principles of necessity and
proportionality regulate combat operations directed against transnational terrorist
operatives. 11 What is unusual is the assertion that jws ad helium variants of these
principles regulate operational execution. 12 Necessity and proportionality have
always been core principles of both branches of the jws belliprinciples that apply
to both the authority to employ military force and the regulation of actual employ-
ment. However, in the jus ad helium context, they have never before been viewed as
principles to regulate operational and tactical execution. 13 Instead, in that context
they frame the legality of national or multinational resort to military force in self-
defense. Once the decision is made to employ force pursuant to this authority, the
jus in hello variant of these principles (necessity of the mission and proportionality
of collateral damage) operate to regulate the application of combat power during
mission execution (in other words, they provide the foundation for the regulation
of the application of combat power in the context of the self-defense-justified
mission).
This self-defense targeting paradigmProfessor Kenneth Anderson's "naked
self-defense" 14is certainly responsive to concerns over the legality of extending
counterterror combat operations beyond the geographic limits of Afghanistan
(and to an increasingly lesser degree Iraq). However, it does not and cannot be-
come asubstitute for defining the rules that regulate the actual execution of such
missions. This ad helium targeting theory may in some ways be responsive to the
uncertainty related to the legal characterization of the struggle against transna-
tional terrorism, or perhaps more precisely the question of whether an armed con-
flict can exist within the meaning of international law when States employ armed
force to find, fix and destroy terrorist operations in diverse geographic locations. 15
Asubcomponent of this question regarding the existence of an armed conflict is,
even assuming the answer is yes, does such aconflict follow the enemy wherever on
the globe he may be and does it provide for a"springing" of the LOAC authority for
brief periods of time wherever he is located?
Since the United States initiated its military response to the terrorist attacks of
September 11, 2001, the uncertainty related to the legal nature of this response has
been acentral theme in policy and academic discourse. Although the answers to
these questions seem increasingly settled in U.S. practice (at least in the practical if
not legal sense), questions over the legality of killing OBLor the availability of
viable alternativeshave again highlighted the significance of this uncertainty.
While the United States seems to have abandoned the assertion that it is in a"war"
against terror that spans the entire globe, its continued attack of what can only be
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