Self-Defence and the United States Policy on Drone Strikes

• Published in: Journal of conflict & security law 2015-12, Vol.20 (3), p.381-413
• Main Author: Tibori-Szabó, Kinga
• Format: Article
• Language: English
• ISSN: 1467-7954; 1467-7962
• DOI: 10.1093/jcsl/krv006

For the past few months, world attention has been drawn to the so-called Islamic State of Iraq and Levant in Syria and Iraq as well as to other groups adhering to its ideology throughout the region. Meanwhile, US targeted killings of al-Qaeda operatives have continued unabated in Pakistan, Yemen and Somalia. The legal basis for these strikes has been shaped by various US official statements and documents. The emerging legal framework raises many questions, including some pertaining to the law on the use of force—in particular, self-defence. Some of these questions have been highlighted in the March 2014 Report of Special Rapporteur on human rights and counterterrorism, which is the departure point in this article for analysing the interpretation self-defence receives in the relevant US statements and documents. Although both the US legal framework and the Special Rapporteur's report focuses on the legality of drone strikes of al-Qaida targets, many of the raised questions may become relevant for the (USA) targeting policy against Islamic State of Iraq and Levant as well. This article argues that the legal framework put forward by the USA ignores the continuous applicability of self-defence after its invocation and for the duration of the particular use of force. Furthermore, the concept of authorship of an armed attack is considerably blurred by various denominations for al-Qaeda and by the lack of discussion of which groups, and under what conditions, can be viewed as authors of an armed attack. Additionally, the concept of imminence is broadened beyond recognition to entail a general assumption of occurrence of future attacks. Finally, the exercise of self-defence is envisaged as a perpetual right to target an individual as long as there is no evidence of his abandoning activities that pose an imminent threat to the USA.