Drones at War: An Introduction to the Law and Debate of “Targeted Killing”

Thank you to Dean O’Hear for inviting me to write this month as the alumni blogger.

For the past few weeks, public attention has focused on the President’s decisions regarding the lethal targeting of known terrorists and other non-state hostile actors.  Although the issue may be relatively new to the public, it has long been a source of debate among legal experts in the area of international humanitarian law – also known as the Law of Armed Conflict or LOAC – and international human rights law (IHRL).  The debate largely centers on what is called “Targeted Killing.”  The intent of this post is not to discuss the legality of Targeted Killing itself, but to instead point readers to detailed sources to help readers start studying the Targeted Killing debate or the Law of Armed Conflict more generally.

Without exception, anyone interested in the subject must certainly start by reading the Targeted Killings case from Israel in 2005.  Beyond the Targeted Killings case, there is a growing body of treatment by scholars such as Kenneth Anderson, Laurie Blank, Amos Guiora, Nils Melzer, Mary Ellen O’Connell, and many, many more – far too many to list exhaustively.  One method may be to read one, and then follow up by reading the sources they cite or refute.  The United Nations released a study on the phenomenon as well, available here.

The question of Targeted Killing presents a number of pressing issues in the area of LOAC and IHRL, especially highlighting the tension between them. 

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Gaddis on Kennan: Insight into a Key Figure of the 20th Century

The first half of the 20th Century was terrible, including two world wars. The second half was much better. “Who developed the ideas that made the second half of the 20th century better that the first half?” Yale Professor John Lewis Gaddis asked in an “On the Issues with Mike Gousha” session at Eckstein Hall on Wednesday.

“I don’t mean to say that George Kennan did all of that,” Gaddis said, answering the question. “But if I were to pick one central idea that was key to making the second half of the 20th century more peaceful than the first half, I think it was the idea of containment, I think it was the idea that you could deal with the Soviet Union without having a new world war with them on the one hand and without appeasing them on the other hand. And that really was George Kennan’s idea. So I would say if we back off and look at big ideas and big consequences, this man is extraordinarily influential.”

Kennan, a Milwaukee native, was the subject of Gaddis’ biography, “George F. Kennan: An American Life,” which was awarded a Pulitzer Prize in April. Gaddis came to Milwaukee at the invitation of the Law School. He spoke with Gousha, the Law School’s distinguished fellow in law and public policy, before an audience of about 200.

Gaddis painted a picture of Kennan as a brilliant, but complex person who had great, almost prophetic insights into global issues, but who was almost never happy with himself or how things were going in the world. He was “one of the greatest American writers of the 20th Century,” Gaddis said (Kennan won two Pulitzer prizes for memoirs he wrote) but “he was one of those people who was incapable of self-congratulation.”

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The Self-Defense Argument for Intervention in Syria

News media are reporting today that the strife in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.

All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense.

But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed Turkish intervention on the basis of a Turkish right of self-defense.

To be clear, I’m not necessarily advocating the legality of intervention; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a policy matter is another issue altogether.

Cross-posted at PrawfsBlawg.

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