Counterterrorism Policy and International Law: A Call for Clarity
Historically, nations have often denied the existence of a state of war to elude its accompanying legal obligations. When fighting non-state actors, leaders have been especially loath to concede either the vulnerability of their regime or the legitimacy of the rebels challenging it. From King George III’s view of his pesky American colonists, to President Lincoln’s outlook on the Confederacy, established governments have long preferred to classify armed opposition as a criminal enterprise rather than a military threat—at least as long as conditions allowed.
After September 11, 2001, the United States upended this centuries-old trend when the Bush administration invoked a “Global War on Terror.” Subsequently, the Obama administration adopted the less bellicose verbiage of an “armed conflict with al Qaeda, the Taliban, and associated forces,” but both iterations situated the challenge of terrorism within the construct of war. This approach stands in stark contrast to, say, the United Kingdom’s staunch refusal to apply a war paradigm to its decades-long struggle against the Irish Republican Army.
The choice of terminology has real-world implications, both reflecting and influencing the international legal framework that states view as applicable to their use of force. The law of war—often referred to as international humanitarian law or the law of armed conflict —is triggered only by an armed conflict. It delineates a distinct moral universe where lethal force can be wielded against lawful targets as a first resort, merely because of their status as enemy fighters. In turn, the combatant’s privilege immunizes soldiers for undertaking warlike acts that would be criminal under ordinary circumstances.
Generally, wartime targeting rules assume that people, including civilians, will tragically die. The law’s purpose is to alleviate “as much as possible the calamities of war” by requiring armies to distinguish between military and civilian targets, only attack the former, and make best efforts to ensure that any incidental harm to the latter is not excessive in relation to the mission’s aim.
Thankfully, this specialized body of law differs sharply from the “typical” situation of domestic and human rights norms, undergirded by the fundamental right to life. Law enforcement operations are subject to much stricter limits, wherein the goal is de-escalation, the use of force is graduated, and lethality is the absolute last resort in imminent defense of life.
It does not demand an enormous conceptual leap to see why political leaders might view the war paradigm as advantageous by offering a supposedly freer hand to mete out violence to enemies. Whereas states once resisted the label of armed conflict to evade its restrictions, the advent of human rights law after World War II has made the law of war look ever more attractive to states seeking flexibility in the use of force.
In particular, the law of war is almost perfectly suited to “targeted killing” operations via remote platforms, such as drones, that afford unparalleled precision and opportunity to mitigate civilian damage by dispersing war’s ever-present “fog.” As such, the wartime rules have both underpinned and facilitated the U.S. targeted killing program that began under the previous administration and has greatly expanded under the current one.
Even as he embraced drone warfare, however, President Obama has apparently worried about how his successors might employ the “legal and policy architecture” his administration erected. At two junctures—first when it appeared he might not win reelection, and now that his second term is coming to a close—the President has moved to formalize and entrench a set of standards that would ostensibly render drone strikes “legal, ethical, and wise.”
The first such effort resulted in the 2013 Presidential Policy Guidance on counterterrorism operations “outside areas of active hostilities.” The second emerged on the eve of this year’s July 4th holiday, when the administration published an Executive Order in conjunction with its assessment of casualties from airstrikes. While most of the media coverage has focused on discrepancies between U.S. and non-governmental casualty estimates, it has largely overlooked the incoherence of U.S. policy as a matter of international law.
Although both the 2013 guidance and the 2016 Executive Order are couched in policy, not law, they both analyze counterterrorism operations in a manner deeply unsettling to international lawyers. Essentially, the U.S. position is that the law of war is the governing legal framework—both inside and out of “hot battlefields”—but that the U.S. often “exceeds” wartime requirements in a manner that approximates human rights law.
Yet this approach elides the fundamental question: when and where does an armed conflict exist such that the law of war applies? Assurances of compliance with the law of war are redundant if the threshold of armed conflict is met, and irrelevant and inadequate where it is not.
Ultimately, the simplest and clearest solution would be to articulate (and regularly update) the U.S. view on the geographic and temporal limits of its armed conflict against specified terrorist networks. The international legal community might well still disagree with the U.S. position, but at least then it would comprehend it.
Major Charlie Kels is a judge advocate in the U.S. Air Force Reserve, senior attorney at the American Medical Association, and formerly an attorney for the U.S. Department of Homeland Security. His writings on the law of war have appeared in the National Interest, the Journal of Military Ethics, the Harvard National Security Journal, the National Law Journal, Armed Forces Journal, and the Hill. His views do not reflect those of the U.S. government or AMA.