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US justifies drone strikes by blending two inconsistent legal paradigms

Properties2
tagsja-picks, factual_claims, singleton, xref, category/factual-claims
aliases@chamayou_theory_2013, loc. 1044

4 min read

US justifies drone strikes by blending two inconsistent legal paradigms

Evidence

The United States, writes Laurie Blank, relies “on both armed conflict and self-defense as legal justifications for targeted strikes outside of the zone of active combat… . It is the United States’ insistence on using reference to both paradigms as justification for individual attacks and the broader program of targeted strikes that raises significant concerns for the use of international law and the protection of individuals by blurring the lines between the key parameters of the two paradigms.” — Grégoire Chamayou, A Theory of the Drone, 1044 (#expands, via linked claim)

Within what legal framework do drone strikes take place today? Where the United States is concerned, it is impossible to say. Everything is blurred. The administration refuses to reply to the question, even in court. A speech given by Harold Koh, legal adviser to the State Department, in 2010 before the American Society of International Law is symptomatic of this calculated opacity. He performs a kind of belly dance, maintaining ambiguity, switching between a variety of registers, using them all at once or in turn but without ever deigning to choose between them, as if he were leaving the final decision until later. In any case, he claims, drone strikes are licit and are undertaken either “in an armed conflict or in legitimate self-defense.” But he does not explain exactly which of these the United States is engaged in, nor how the legal standards for the use of lethal force would differ depending on whether they were operating in the first or the second of those two situations. Philip Alston, the United Nations special rapporteur, comments, “He very casually said, ‘Well, we are applying either the law of armed conflict or the rules governing the right to self-defense of a state.’ Now, those two sets of rules are radically different.” — Grégoire Chamayou, A Theory of the Drone, 536 (#expands, via linked claim)

This artistic blurring has puzzled many jurists. They tell politicians they must declare whether it is a matter of war or of legitimate self-defense; they must choose. However, the administration refuses to do that because the consequence of resolving ambiguities in the framework of reference would entail the prohibition of the present drone strikes or would drastically limit their lawfulness. — Grégoire Chamayou, A Theory of the Drone, 537 (#expands, via linked claim)

Categorization

  • XREF: connects to: Neither law-enforcement nor laws-of-war frameworks can legally justify drone strikes; Drone strikes outside declared battlefields violate international law — Grégoire Chamayou, A Theory of the Drone, 251; Clarity on legal framework would prohibit most current drone strikes (+3 more)

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