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At the Vanderbilt Journal of Transnational Law, Prof. Claire Finkelstein argues that ‘violent nonstate actors are more properly thought of as civilians than combatants’

February 03, 2022

Finkelstein is an expert in national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

The following is the abstract of “Restoring the Rule of Law to U.S. Targeted Killing Operations,” written by Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, and recently published in the Vanderbilt Journal of Transnational Law:

With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration’s choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived relaxation of the constraints of international law in conflicts among states is a regrettable, but foreseeable, result of a certain conception of violent nonstate actors that immediately followed the 9/11 attacks. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods and President Obama’s dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development.

This Article focuses on the decision to treat violent nonstate actors in the war on terror as “unlawful combatants” — a framework that deprives them of the traditional protections of both the Law of Armed Conflict (LOAC) and the constitutional guarantees ordinarily extended to criminal defendants. This ambiguity provided legal impunity for abuse, the impossibility of achieving convictions at trial for those detained, and an uncertain legal basis for those who are targeted rather than captured. The question of status now arises with urgency for violent state actors like Qassim Soleimani, who was killed by a U.S. drone strike in January of 2020. This Article will argue that violent nonstate actors are more properly thought of as civilians than combatants but that this approach should not be permitted to affect the treatment of state actors like Soleimani, whose status as a state actor implies that he can only be targeted as a state combatant and then only if in the context of armed conflict… .

Finkelstein is the founder and faculty director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania’s Annenberg Public Policy Center (APPC). She is a distinguished research fellow at APPC and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

Read the full article at the Vanderbilt Journal of Transnational Law.