In our first round of debate, Professor Guiora proposed assessing targeting operations using a model of “active self-defense.” I presented a counterproposal. I argued that certain basic principles— which I term liberty-security, mitigation, and mistake—determine when targeting is lawful.
Substantively, our proposals have much in common. They also have some differences. For example, Guiora asserts that states may target people who only finance terrorism. My liberty-security principle probably prohibits that result. Financiers do not themselves threaten bodily integrity and are too removed from the harm to justify targeting them.
No matter how one assesses those substantive differences, my proposal is preferable to Guiora’s because mine is methodologically sound. First, my proposal is rooted in existing law. Its three principles drive settled outcomes under both the jus in bello and human rights law. In contrast, Guiora’s model reflects his own normative vision. Second, my principles apply in all contexts. Guiora does not identify precisely when his model applies, but he apparently intends for it to apply in only some contexts. He did not contest my suggestion that, before using his model, decision makers would have to determine whether it even applies. Third and as explained in my initial response, my proposal would invigorate international law’s discursive process. Rather than debate which targeting model applies, decision makers would focus on the considerations that actually drive legal outcomes. That substantive discourse helps develop the law and hold decision makers accountable.
Thus far, our debate has focused on the in bello and human rights restraints on targeting. Targeting sometimes also implicates the jus ad bellum. The jus ad bellum regulates when states may use force against non-state actors in other states. Such force is lawful when the territorial state consents. It probably also is lawful when the territorial state is unable or unwilling to contain the non-state threat.
Since the September 11 attacks, states have more frequently used force to incapacitate terrorists in other states—either with consent or under the unable-or-unwilling standard. Those operations may be lawful under the jus ad bellum without falling squarely in any in bello or human rights paradigm. For example, one-off operations might not cause sufficient violence to trigger an armed conflict. The jus in bello would not apply. Similarly, human rights law might not apply. The extent to which it applies extraterritorially is contested and uncertain. Thus, some lawyers suggest that the ad bellum license to use force effectively displaces any in bello or human rights restraints. I disagree (and I presume from Guiora’s comments that he would disagree, as well). The jus ad bellum is concerned primarily with protecting state sovereignty. The jus in bello and human rights law are about protecting individuals. Both interests are at stake when states use force extraterritorially.
In my view, decision makers must adapt the in bello and human rights protections to account for developments under the jus ad bellum. My proposal enables that move. Recall that my mitigation principle requires states to pursue reasonable, nonlethal alternatives to targeting. Reasonableness here depends on two factors. One is state control. The greater a state’s control, the more varied its toolbox, and the more comfortably it may contain a threat without resorting to deadly force. The second factor is the relative efficacy of an alternative. States need not pursue measures that are unsuitable for or realistically might compromise the security mission.
The fact that an operation is lawful under the jus ad bellum does not make it so under my proposal. Capture might be reasonable—and therefore required—even if the territorial state consents to military force. States usually must cooperate to apprehend terrorists with the tools of law enforcement. Yet the circumstances that justify nonconsensual force might also justify taking human life. Capture might be unreasonable when the territorial state is unable or unwilling.
Consider the U.S. operation against Osama Bin Laden. Pakistan did not consent to that operation. The jus ad bellum asks whether Pakistan was unable or unwilling to incapacitate Bin Laden—for example, because of incompetence or corruption. If Pakistan was unable or unwilling, then working with its law enforcement apparatus was almost certainly unreasonable for purposes of the mitigation principle. To be sure, the United States might have had other alternatives for containing Bin Laden’s threat. But the mitigation principle suggests that, if the territorial state is uncooperative, the targeting state should have more than its ordinary, law enforcement authorities. The United States had considerably fewer tools for controlling the situation in Abbottabad than it has domestically.