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

Abstract

Conflict classification has and will continue to be one of the most complex issues arising from the intersection of national security policy and international law. From the inception of what the United States coined the “Global War on Terror,” experts have been debating the meaning of the term armed conflict, both international and non-international. The proliferation of remotely piloted warfare has only exacerbated the uncertainty associated with the meaning of these terms. In response, the concept of self-defense targeting emerged as an ostensible alternative to determining if and when a national use of armed force qualified as an armed conflict. In essence, this theory averts the need to engage in jus in bello classification of counterterror military operations by relying on the overarching jus ad bellum legal justification for these operations. Self-defense targeting, or what Professor Kenneth Anderson has called “naked self-defense,” is offered as the U.S. legal framework for employing combat power to destroy or disrupt the capabilities of transnational terrorist operatives. This essay will question the validity of substituting jus ad bellum principles for those of the jus in bello, and why this substitution is a false solution to this extremely complex conflict classification dilemma. The recent attack on Osama Bin Laden’s compound in Pakistan has exposed in stark relief the importance of defining the legal framework applicable to the use of military force as a counter-terrorism tool. The initial focus of the public debate generated by the attack was the legality of the U.S. invocation of the inherent right of self-defense to launch a non-consensual operation within the sovereign territory of Pakistan. However, that focus soon shifted to another critical legal question: even assuming legality as an exercise of national self-defense, what law regulated the execution of the operation? By virtue of his role as the leader of al Qaeda, was Bin Laden a lawful military objective within the meaning of the law of armed conflict, and thereby subject to attack with deadly force as a measure 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 a two prong legal critique: first, did the mission violate the international legal prohibition against use of force (jus ad bellum)? Second, did the mission trigger the law of armed conflict, or was the amount of force employed during the mission resulting in Bin Laden’s death excessive to that which was necessary to apprehend him? The self-defense targeting theory may be a tempting approach to resolving these questions, but ultimately distorts the effective regulation of combat operations.