The U.S. “playbook” for drones and self-defense under international law

See,

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

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

1 Comment on "The U.S. “playbook” for drones and self-defense under international law"

  1. Michael Mauldin | August 29, 2021 at 2:41 pm | Reply

    Good informative piece.
    I wonder if living in a post truth world all lWs will be question and or ignored.

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