Charlie Savage, “Afghanistan Collapse and Strikes in Somalia Raise Snags for Drone Warfare Rules; But the Biden administration is close to finishing a new playbook for counterterrorism strikes outside conventional war zones,” New York Times, August 28, 2021.
Charles Savage reports that the Biden administration is developing a new “playbook” for the use of drones against terrorist groups outside of major combat zones.
Previous versions of this rulebook have included rules for such uses of force outside war zones that are highly questionable under international law. Article 2 paragraph 4 of the U.N. Charter probits the use of force across international frontiers except in individual or collective self-defense under Article 51 of the Charter, in the case of an armed attack. The armed attack in question here has historically meant an armed attack by the forces of one nation against another, not just a single terrorist attack.
U.S. policy has often been based on unilateral assertions of international law that are not shared by more than a handfull of other countries.
Savage reports that some field commanders have been relying on a collective self-defense justification, asserting that they are defending the forces of partner countries.
This opens the door to further misinterpretations of international law. Collective self-defense is permirred under Article 51 of the U.N. Charter only in the case of an armed attack in the larger sense described above.
Collective self-defense is permissible only when an armed attack has occurred against a target state, and that state has requested collective self-defense in meeting that attack, within the requirements of necessity and proportionality which are essential conditions for the exercise of the right.
There can be no blanket prior authorization of collecctive self-defense, since in each case the attacked state must determine that an armed attack has occurred. For the right of collective self-defense to be invoked, the attacked state must request such assistance from the assisting state.
There can be no question of the second state determining on its own that an armed attack has occurred against the target state, and then using force across international frontiers in exercise of an asserted right of collective self-defense.
In all cases, there can be no collective self-defense without without a request from the target state for assistance from a second state in defending against a specific “armed attack”.
Moreover, under Article 51 of the U.N. Charter, any exercise of the right of self-defense must be reported to the U.N. Security Council.
This is the logic of international law and the Ubited Nations Charter.
U.S. practice has strayed far from meeting these requirements. In drafting a new “playbook” for the use of drones employing the use of force, U.S. military and other decisionmakers should pay careful attion to these requirements of international law, as generally interpreted by the international community, not just by a U.S. miliary or other government lawyer.
If we want to strengthen international law, and not just tear it dowb further, we must pay careful attention to the legal requirements outlined above.
The Trenchant Observer