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A Defense of Drone Attacks in Pakistan Under Humanitarian Law (cont.)

Given the significant CIA involvement in the drone program,176 CIA agents who participate in drone attacks can be targeted “for such time as they take a direct part in hostilities.”177 Furthermore, as a corollary, those physical assets of the CIA that “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” can be attacked.178 That the United States has focused so much of its efforts in the fight against terrorism to its drone campaign suggests that the CIA’s physical assets do indeed make an “effective contribution to military action” in the sense of international humanitarian law and, as such, could lawfully be targeted by the Taliban and its Al Qaeda allies.179

Although the CIA’s involvement in the drone campaign opens the CIA to attacks that international humanitarian law would not otherwise permit, it should be stressed that CIA involvement in drone attacks is not unlawful as such under international humanitarian law. The ICRC’s 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Interpretive Guidance), though itself not legally binding and controversial,180 is surely correct to note that, “[in] the final analysis, IHL neither prohibits nor privileges civilian direct participation in hostilities.”181 Assuming that CIA agents whose actions amount to direct participation in hostilities otherwise comply with international humanitarian law in their targeting decisions and the attacks that they undertake on the Taliban and its Al Qaeda allies in northwest Pakistan, international humanitarian law does not criminalize their behavior, though States remain free to investigate and prosecute them for common crimes.182 In this sense, while Solis is certainly correct to note that CIA agents whose actions amount to direct participation in hostilities would not be entitled to prisoner of war status, he errs in suggesting that such CIA involvement amounts to a war crime.183 As the 2009 Report of the United Nations Fact-Finding Mission on the Gaza Conflict notes, armed groups’ “failure to distinguish themselves from the civilian population by distinctive signs is not a violation of international law in itself, but would have denied them some of the legal privileges afforded to combatants.”184


It has been said that “[c]onfronting the violent lawlessness that is terrorism with strict adherence to the rule of law makes common sense and moral sense.”185 However, in a world in which common sense is “seemingly the least common of all senses”186 and most everyone claims the moral mantle, this is not particularly reassuring. Rule of law appears as an attractive option, but when international law kinetically pivots between State practice of the past and the dilemmas of the  present, “it is much harder to say what the law exactly is, and how it should be applied in this context.”187 “The law is the law” too often rings hollow, it seems, in all but the most indeterminate of senses. This is certainly the case within the context of the fight against terrorism, and it is quite clearly the case within the context of the American drone campaign in northwest Pakistan.

The drone campaign raises fundamental questions of the acceptability of violence as a form of conflict resolution. Chapter VI of the United Nations Charter, with its insistence on the pacific settlement of disputes, sought to “restart” history in this regard. It has partly succeeded; it has partly failed. Yet one should not lose sight of the fact that in grappling with the drone question, as with questions of violence generally, one is forced to face squarely and honestly the words of the aged soldier in Kipling’s great novel of British India, Kim: “[I]f evil men were not now and then slain it would not be a good world for weaponless dreamers. I do not speak without knowledge who have seen the land from Delhi south awash with blood.”188

1 E.O. 13493, Review of Detention Policy Options, Jan. 22, 2009; E.O. 13492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base
and Closure of Detention Facilities, Jan. 22, 2009; E.O. 13491, Ensuring Lawful Interrogations, Jan. 22, 2009.
2 THE NOBEL PEACE PRIZE 2009,, Mar. 26, 2012,
3 Barack H. Obama, President of the United States of America, Nobel Lecture, A Just and Lasting Peace, Nobel Lecture, Oslo (Dec. 10, 2009), See also THE WHITE HOUSE, National Security Strategy, at 22 (May 2010), (asserting the United States must “reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force”).
imply, or whether the prohibition of the threat or use of force has itself fallen into desuetude, as Glennon argues – lie outside the scope of this article. See Christian Henderson, The 2010 United States National Security Strategy and the Obama Doctrine of “Necessary Force,” 15 J. CONFLICT & SECURITY L. 403 (2010); Michael J. Glennon, Force and the Settlement of Political Disputes: Debate with Alain Pellet, Colloquium on Topicality of the 1907 Hague Conference at The Hague (Sept.7, 2007),
5 Obama, supra note 3.
6 Id.
7 Text of Obama’s Speech in Berlin, N.Y. TIMES, July 24, 2008,
8 See National Security Strategy, supra note 3, at 20 (stating that “this is not a global war against a tactic - terrorism, or a religion - Islam. We are at war with a specific network, al-Qa’ida, and its terrorist affiliates who support efforts to attack the United States, our allies, and partners”).
9 Drone attacks are a type of “targeted killing.” For definitions of targeted killing, see HCJ 769/02 Public Committee Against Torture v. Government of Israel, ¶ 60 [2006] [hereinafter Targeted Killings] (identifying a targeted killing as a “preventative strikes which cause the deaths of terrorists and at times of nearby innocent civilians”); Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, U.N. DOC. A/HRC/14/24/Add.6, at 3 (May 28, 2010) [hereinafter Alston Report] (defining a targeting killing as the “intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator”); Gabriella Blum & Philip Heymann, Law and Policy of Targeted Killing, 1 HARV. NAT’L SECURITY J. 145, 147 (2010) (defining a targeting killing as the deliberate assassination of a known terrorist outside the country’s territory (even in a friendly nation’s territory), usually (but not exclusively) by an airstrike”); Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law, May 11, 2009, at 2 (May 11, 2009) (unpublished manuscript), available at (arguing a targeting killing involves “targeting of a specific individual to be killed, increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles from a stand-off position”); NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 5 (2009) (defining a targeted killing as the “use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them”). On targeted killings and Israel, the United States, and Russia, see Alston Report, supra, at 5-9. On targeted killings and the United States and Israel, see Michael N. Schmitt, Targeted Killings and International Law: Law Enforcement, Self-Defense, and Armed Conflict, in INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW: TOWARDS A NEW MERGER IN INTERNATIONAL LAW 525, 525-28 (Roberta Arnold & No ¨ elle Qu ´ enivet eds., 2008). For some examples of targeted killings, see MELZER, supra, app. at 436-44.
10 See Alston Report, supra note 9, at 27. Cf. Christof Heyns & Martin Scheinin, Osama bin Laden: Statement by the UN Special Rapporteurs on Summary Executions and on Human Rights and Conter-Terrorism, OFF. OF THE HIGH COMMISSIONER FOR HUM. RTS. (May 6, 2011),
11 U.S. Army UAS Ctr. of Excellence, “EYES OF THE ARMY” U.S. ARMY UNMANNED AIRCRAFT SYSTEMS ROADMAP 2010-2035, ARMY.MIL, 4 (2010), [hereinafter Eyes of the Army].
12 David Rodman, Unmanned Aerial Vehicles in the Service of the Israel Air Force: “They Will Soar on Wings Like Eagles,” 14 MIDDLE E. REV. INT’L AFF. 77 (2010); Andrew Callam, Drone Wars: Armed Unmanned Aerial Vehicles, 19 INT’L AFF. REV. (2010), available at
14 See Jack M. Beard, Law and War in the Virtual Era, 103 AM. J. INT’L L. 409, 417-22 (2009). See also Rodman, supra note 12, at 80.
15 See Beard, supra note 14, at 430-33. See also Eyes of the Army, supra note 11, at 2-3, 5. Beard soberly refers to these decisions as the “grim math of collateral damage assessments in the virtual era.” Beard, supra note 12, at 439.
16 See Mary Ellen O’Connell, The International Law of Drones, 14 AM. SOC’Y INT’L L. INSIGHT, Nov. 12, 2010, See also Beard, supra note 14, at 444.
19 See Eyes of the Army, supra note 11, at 44, app. at 73. 
20 HARVARD MANUAL, supra note 17, at § A(1)(ee).
21 See HARVARD COMMENTARY, supra note 18, at 55.
22 Eyes of the Army, supra note 11, at 3-4. See also JULIE WATSON, Tiny Spy Planes Could Mimic Birds, Insects, ARMY TIMES, Feb. 28, 2011,; Nathan Hodge, Drone Will Call Aircraft Carriers Home, WALL ST. J., Feb. 8, 2011;; and Ellen Nakashima & Craig Whitlock, With Air Force’s Gorgon Drone “We Can See Everything,” WASH. POST, Jan. 2, 2011,
23 See William Wan & Peter Finn, Global Race on to Match U.S. Drone Capabilities, WASH. POST, July 4, 2011, On Ch.ina’s rapidly-improving program, see Jeremy Page, China’s
New Drones Raise Eyebrows, WALL ST. J., Nov. 18, 2010, See also U.S. – CHINA ECONOMIC AND SECURITY REVIEW COMMISSION, 111TH CONG., 2010 REP. TO CONGRESS 79 (2010), available at On Iran’s Karrar attack drone, see Yiftah Shapir, Iran’s Late-Summer Display, 205 INST. NAT’L SECURITY STUD. INSIGHT (2010),
24 See, e.g., Report of the United Nations Fact-Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other Occupied Arab Territories, ¶ 1190, U.N. DOC. A/HRC/12/48 (Sept. 25, 2009).
25 For a detailed account of these and other developments in the use of Israeli drones, see Rodman, supra note 12. See also Sharon Weinberger, Israeli Company Debuts Tilt-Rotor Drone, AOLNEWS.COM, Oct. 5, 2010, (describing the Panther drone, which weighs under 150 pounds and can take off and land as a helicopter and can fly for up to six hours at a time); Tia Goldenberg, Israel Unveils New Drone Fleet That Can Reach Iran, HUFFINGTON POST, Feb. 21, 2010, (describing the Heron TP drone, which can fly for a day at a time and cover the distance between Israel and the Persian Gulf).
26 Eyes of the Army, supra note 11, at 4.
27 Beard, supra note 14, at 412 n.15.
28 George W. Bush, Address Before a Joint Session of the Congress of the United States: Response to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES. DOC. 1347, 1349 (Sept. 20, 2001). 
29 See Callam, supra note 12; Jane Mayer, The Predator War: What Are the Risks of the C.I.A.’s Covert Drone Program?, NEW YORKER, Oct. 26, 2009,
30 See Blum & Heymann, supra note 9, at 149-51; Mayer, supra note 29; Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the
“War on Terror,” 27 FLETCHER FORUM OF WORLD AFF. 55, 62, 64-65 (2003).
31 S.C. Res 1943, U.N. DOC. S/RES/1943, at 1 (Oct. 13, 2010).
32 BOB WOODWARD, OBAMA’S WARS 302 (2010). See Interview with Hamid Karzai, President of Afghanistan (July 14, 2008), available at
33 On the Durand Line, see AHMED RASHID, TALIBAN: THE POWER OF MILITANT ISLAM IN AFGHANISTAN AND BEYOND 187 (2010); Sean D. Murphy, The International Legality of US Military Cross-Border Operations from Afghanistan into Pakistan, 85 INT’L L. STUD. SER. US NAVAL WAR COL. 109, 110-15 (2009); Andrew M. Roe, What Waziristan Means for Afghanistan, MIDDLE EAST QUARTERLY, Winter 2011, 37; Syed Manzar Abbas Zaidi, Understanding FATA, CONFLICT & PEACE STUD., Oct.-Dec. 2010, at 109-11.
34 Al-Zawahiri’s location remains unknown, though he is likely in Pakistan.
35 Unwillingness and inability, after all, are not always distinct or dichotomous. On this, see Theresa Reinold, State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11, 105 AM. J. INT’L L. 244, 246 (2011). Reinold concludes that the picture is unclear in the case of Pakistan. Id. at 282-83.
36 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, 226-27 (Dec. 19) (quoting G.A. Res. 2625 (XXV), Annex, U.N. DOC. A/8082 (Oct. 24, 1979). The court opined: Thus the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations [hereinafter the Declaration on Friendly Relations] provides that: ‘Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.’ The Declaration further provides that ‘no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.’ These provisions are declaratory of customary international law. 
Of course, Pakistan is also bound by its counterterrorism obligations under international treaty law, including those contained in S.C. Res. 1373, (U.N. DOC. S/RES/1373 (Sept. 28, 2001)), that operates by virtue of treaty commitment. See Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 2011 STL-11-01/1, ¶ 102 (Feb. 16). “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” U.N. Charter art. 25. On the question of unwillingness and inability in the Pakistani context, see Hearing to Receive Testimony on the U.S. Strategy in Afghanistan and Iraq Before the S. Comm. on Armed Services, 112th Cong. (2011) (Statement of Admiral Michael Mullen, U.S. Navy, Chairman, Joint Chiefs of Staff), available at; Eric Schmitt, Pakistan’s Failure to Hit Militant Sanctuary Has Positive Side for U.S., N.Y. TIMES, Jan. 17, 2011, at A4; WOODWARD, supra note 32, at 3-4, 64-65; COUNCIL ON FOREIGN RELATIONS, INDEPENDENT TASK FORCE REPORT NO. 65: U.S. STRATEGY FOR PAKISTAN AND AFGHANISTAN 19-21 (2010); Sadanand Dhume, A Sanctuary for Terror, WALL ST. J., July 27, 2010; Pakistan’s Double Game, N.Y. TIMES, July 26, 2010, at A18; Sikander Ahmed Shah, War on Terrorism: Self-Defense, Operation Enduring Freedom, and the Legality of U.S. Drone Attacks in Pakistan, 9(1) WASH. U. GLOBAL STUD. L. REV. 77, 77-88 (2010); John F. Murphy, Afghanistan: Hard Choices and the Future of International Law, 85 INT’L L. STUD. SER. US NAVAL WAR COL. 79, 95-96 (2009); Murphy, International Legality, supra note 33, at 114-15, 132. On the “military-madrasa-mullah complex,” see Sanjeeb Kumar Mohanty & Jinendra Nath Mahanty, Military-Madrasa-Mullah Complex: Promoting Jihadist Islam in Pakistan, 66 INDIA QUARTERLY 133 (2010). For an insightful overview of Pakistani support for Islamist militants published just prior to September 11, see Jessica Stern, Pakistan’s Jihad Culture, FOREIGN AFF., Nov.-Dec. 2000, at 115.
37 WOODWARD, supra note 32, at 286.
39 See id. at 8-9. According to Ambassador Haqqani, the number of Pakistani soldiers who have died fighting the Taliban since September 11 outstrips the number of NATO soldiers who have died fighting the Taliban. 2,000 Pakistani police officers have been killed and tens of billions of dollars in government expenditures have been diverted to the fight against terrorism. See Husain Haqqani, An Ally of Necessity, WALL ST. J., July 27, 2010; See also CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, CIVILIANS IN ARMED CONFLICT: CIVILIAN HARM AND CONFLICT IN NORTHWEST PAKISTAN 9-12 (2010), available at
40 See Bhutto Report, supra note 38, at 48-50. See generally Khuram Iqbal, Tehrike-Taliban Pakistan: A Global Threat, CONFLICT & PEACE STUD., Oct.-Dec. 2010, 127 (2010); Defendant’s Motion to Dismiss, Exhibit 3, Statement for Record, Senate Homeland Security and Government Affairs Committee, Michael Leiter, Director of the National Counterterrorism Center, Nine Years After 9/11: Confronting the Terrorist Threat to the Homeland; Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).
41 Bhutto Report, supra note 38, at 6. See also Hina Rabbani Khar, Foreign Minister of Pakistan, Statement at the General Debate of the 66th Session of the United Nations General Assembly (Sept. 27, 2011), 0.pdf (articulating a similar state of affairs in
September 2011).
43 See discussion of collateral damage, infra, at 440-43.
44 On this as regards drone attacks in northwest Pakistan in particular, see Gregory S. McNeal, Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence, in TARGETED KILLINGS: LAW AND MORALITY IN AN ASYMMETRICAL WORLD (Claire Finkelstein et al. eds., 2012); Jacob Beswick, Working Paper: The Drone Wars and Pakistan’s Conflict Casualties, 2010 (May 2011), available at, See also Adam Roberts, Lives and Statistics: Are 90% of War Victims Civilians?, SURVIVAL, June-July 2010, at 115.
45 This distinction is critical. The former are targetable, the latter are not. See Schmitt, supra note 9, at 542. Cf. ASA KASHER & AMOS YADLIN, Military Ethics of Fighting Terror: Principles, 34 PHILOSOPHIA 75, 79-80 (2006) (discussing, though not from an international law perspective, various types of direct and indirect forms of participation in terrorism and presumptions in this regard).
46 See Jordan J. Paust, Self-Defense Targetings of Non-State Actors and ermissibility of U.S. Use of Drones in Pakistan, 19 FLA. ST. J. TRANSNAT’L L. &
POL’Y 237, 277 (2010). As Bergen and Tiedemann state: Counting drone strikes and fatalities is an art, not a science, as it’s not possible to differentiate precisely between militants and non-militants because militants live among the population and do not wear uniforms, and because government sources have the incentive to claim that only militants were killed, while militants often assert the opposite. Peter Bergen & Katherine Tiedemann, There Were More Drone Strikes – And Far
Fewer Civilians Killed, FOREIGN POL’Y (Dec. 21, 2010),,5.
47 Peter Bergen & Katherine Tiedemann, The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004-2010, NEW AMERICA FOUNDATION (Feb. 24, 2010),
48 Mapping US Drone and Islamic Militant Attacks in Pakistan, BBC NEWS (July 22, 2010),
. 49 Bill Roggio & Alexander Mayer, Charting the Data for US Airstrikes in Pakistan, 2004-2012, LONG WAR J., (last updated Mar. 15, 2012).
50 Bergen & Tiedemann, supra note 47, at 3.
51 Id.
52 Id.
53 The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004-2012, NEW AMERICA FOUNDATION, (last updated Apr. 4, 2012).
54 Mapping US Drone and Islamic Militant Attacks in Pakistan, supra note 48.
55 Id.
56 Id.
57 Roggio & Mayer, supra note 49. The LWJ reports that data from 2004 and 2005 is not available.
58 See Bill Roggio & Alexander Mayer, Analysis: US Air Campaign in Pakistan Heats Up, LONG WAR J. (Jan. 5, 2010), See also Bergen & Tiedemann, supra note 46 (echoing this point).
59 See discussion of collateral damage, infra, at 440-43.
60 Bill Roggio & Alexander Mayer, Senior Al Qaeda and Taliban Leaders Killed in US Airstrikes in Pakistan, 2004-2012, LONG WAR J., (last updated Jan. 26, 2012). See also Mayer, supra note 29.
61 See Robert Chesney, Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force, 13 Y.B. INT’L HUMANITARIAN L. 3, 28 (2010).
62 See U.N. Charter art. 2(4).
63 See generally Robert D. Sloane, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War, 34 YALE J. INT’L L. 47 (2009).
64 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 2, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva
Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, art. 2, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 2, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter the Four Geneva Conventions of 1949].
65 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 3.
66 Interestingly, in the 1974 case of Pan American World Airways Inc. v. Aetna Casualty and Surety Co., the United States Court of Appeals for the Second Circuit
stated that war’s “ancient international law definition . . . refers to and includes only hostilities carried on by entities that constitute governments at least de facto in
character.” 505 F.2d 989, 1012 (2d Cir. 1974).
67 See Prosecutor v. Tadi´c, Case No. IT-94-1-T, Trial Chamber, (Int’l Crim. Trib. International Criminal Tribunal for the Former Yugoslavia May 7, 1997), See generally International Criminal Tribunal for the Former Yugoslavia,
68 See Targeted Killings, supra note 9. On targeted killings in the context of the principle of proportionality under international humanitarian law, see Georg Nolte,
Thin or Thick? The Principle of Proportionality and International Humanitarian Law, 4 L. & ETHICS HUM. RTS. 244, 252-55 (2010). See also Blum & Heymann, supra note 9, at 156-59; Schmitt, supra note 9, at 549-52.
69 The Hague Conference: Final Report on the Meaning of Armed Conflict in International Law, INT’L L. ASSN. (2010), On this project of the International Law Association’s Use of Force Committee on the Meaning of Armed Conflict in International Law, see Mary Ellen O’Connell, Defining Armed Conflict, 13 J. CONFLICT & SECURITY L. 393 (2008).
70 Prosecutor v. Tadi´c, Case No. IT-94-1-T, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (OCT. 2, 1995),
71 Tadi´c, supra note 67, at ¶ 562.
72 An exception to this would be for those situations of international armed conflict involving “partial or total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resistance.” Four Geneva Conventions of 1949, supra note 64, at art. 2 (emphasis added).
73 Targeted Killings, supra note, ¶ 2.
74 Targeted Killings, supra note 9, at ¶ 11.
75 Id. at ¶ 16 (citing the supplement to the summary submitted by the State Attorney’s Office).
76 For a critique of Targeted Killings’ conclusion that the armed conflict at issue was international, see Ensign Scott L. Glabe, Conflict Classification and Detainee
Treatment in the War Against Al Qaeda, (6) ARMY LAW 112, 113 (2010).
77 See INT’L L. ASSN., supra note 69, at 9-28.
78 Id. at 3; see Reply Mem. from ACLU, et al., in Support of Plaintiff’s Motion for a.Preliminary Injunction and in Opposition to Defendants’ Motion to Dismiss, at 34; Al-Aulaqi 727 F. Supp. 2d at 1.
79 See INT’L L. ASSN., supra note 69, at 28-32. See also Sylvain Vit ´ e, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 91 INT’L REV. RED CROSS 69, 76-77 (2009).
80 See INT’L L. ASSN, supra note 69, at 30 (internal citations omitted).
81 See id. at 29 (internal citations omitted).
82 O’Connell, supra note 69, at 399.
83 See Chesney, supra note 61, at 29-30. See also Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo, Case
No. ICC-01/04-01/06, Trial Chamber, ¶¶ 531-42 (Int’l Crim. Ct., Mar. 14, 2012); INTERNATIONAL LAW COMMISSION, Articles on the Effects of Armed Conflicts on Treaties, With Commentaries, [2011] REP. INT’L L. COMM’N 179, 181, art. 2(b), U.N. DOC. A/66/10.
84 Protocol II, supra note 65, art. 1, ¶ 2. Cf. Rome Statute of the International Criminal Court, art. 8, ¶¶ 2(d), 2(f), July 17, 1998, A/CONF.183/9.
85 International humanitarian law will apply, according to the ICJ, as lex specialis, against a background of international human rights law as lex generalis. See Congo, supra note 36, at ¶¶ 215-18, 242-43; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 25 (July 8),. See also Schmitt, supra note 9, at 542; Noam Lubell, Challenges in Applying Human Rights Law to Armed Conflict, 87 INT’L REV. RED CROSS 737, 737-38 (2005).
86 See Vit ´ e, supra note 79, at 94; Louise Arimatsu, Territory, Boundaries and the Law of Armed Conflict, 12 Y.B. INT’L HUMANITARIAN L. 157, 182 (2009). But see Mary Ellen O’Connell, The Choice of Law Against Terrorism, 4 J. NAT’L SECURITY L. & POL’Y 343, 345 (2010).
87 Charles J. Dunlap Jr., Perspectives for Cyber Strategists on Law for Cyberwar, 5 STRATEGIC STUD. Q. 81, 82 (2011).
88 See the Four Geneva Conventions of 1949, supra note 64, art. 2.
89 Id. at art. 3.
90 See Protocol I, supra note 65, art. 1, ¶¶ 2 & 3-4. Protocol I defines national liberation movements by reference to the armed conflicts in which these actors are
involved, namely: Armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist r ´ egimes in the exercise of their right of selfdetermination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations.
Id. at art. 1, ¶ 4.
91 Protocol II, supra note 65, art. 1, ¶ 1.
92 See Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 601 (Int’l Crim. Trib. International Criminal Tribunal for Rwanda Sept. 2, 1998), (reflecting this consensus view). See also Int’l Committee of the Red Cross [hereinafter ICRC], How is the Term “Armed Conflict” Defined in International Humanitarian Law?, Opinion Paper (Mar. 2008), On wh.ether articles 8(2)(e) & (f) of the 1998 Rome Statute of the International Criminal Court create a distinct type of non-international armed conflict to supplement Common Article 3 non-international armed conflicts and Protocol II non-international armed conflicts, see Vit ´ e, supra note 79, at 80-83.
93 U.N. Charter art. 51.
94 See S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001). See also U.N. Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, ¶ 41 (Sept. 2011),; Schmitt, supra note 9, at 532-33. On the “private-army rule” in the traditional international law context, see W. Michael Reisman, Private Armies in a Global War System: Prologue to Decision, 14 VA. J. INT’L L. 1, 2-4 (1973).
95 See Congo, supra note 36, at ¶¶ 106-47; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194 (July 9).
96 On this disagreement in Congo, see, e.g., Congo, supra note 36, at ¶¶ 16-35 (opinion of Kooijmans, J.). On this disagreement in Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, see, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
supra note 95, at ¶¶ 5-6 (declaration of Buergenthal, J.). See also HCJ 7957/04 Mara’abe v. Prime Minister of Israel [PD 1, 17-8, 34-35 [2005]].
97 See YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 229-30 (5th ed. 2012). Schmitt describes the ICJ’s thinking in this regard as an “unfortunate anomaly in the post-9/11 normative environment.” Schmitt, supra note 9, at 533; Reinold, supra note 35; Chesney, supra note 61, at 20-21; Murphy, International Legality, supra note 33, at 123-31.
98 U.N. Charter art. 92.
99 See Sloane, supra note 63, at 79-80. On the “conflated” jurisprudence of the ICJ as regards questions of the law related to the use of force and international
humanitarian law, see id. at 80-93.
100 Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare, 20 DUKE J. COMP. & INT’L L. 339, 341 (2010). The present
author has elsewhere referred to the armed conflict between the United States and Al Qaeda as a “transnational international armed conflict.” This expression seeks to convey by its use of “transnational” the armed conflict’s cross-border nature and involvement of a non-State actor, Al Qaeda, and by its use of “international” the
involvement of a State actor, the United States, as an opposing Party in the armed conflict. See ROBERT P. BARNIDGE, JR., NON-STATE ACTORS AND TERRORISM: APPLYING THE LAW OF STATE RESPONSIBILITY AND THE DUE DILIGENCE PRINCIPLE 172-73 (2008). Admittedly, however, “transnational international armed conflict” is an imperfect construction.
101 See Vit ´ e, supra note 79, at 92-93.
102 Arimatsu has described the “international” versus “not of an international character” dichotomy as an “analytic binary straightjacket imposed by the structure of
LOAC.” Arimatsu, supra note 86, at 160.
103 Turkel Commission, Public Commission to Examine the Maritime Incident of 31 May 2010, Report: Part One 45 (2011), available at See Harold Hongju Koh, Legal Advisor, U.S. State Dep’t, Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at (stating that the “laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is ‘necessary and appropriate’ under the AUMF [the 2001 Authorization for Use of Military Force Act] requires some ‘translation,’ or analogizing principles from the laws of war governing traditional international conflicts”); ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Excerpt of the Report Prepared by the International Committee of the Red Cross for the 28th International Conference of the Red Cross and Red Crescent, Geneva, December 2003, 86 INT’L REV. RED CROSS 213, 214 (2004) (recognizing that “international opinion – both governmental and expert, as well as public opinion – remains largely divided on how to deal with new forms of violence, primarily acts of transnational terrorism, in legal terms”). “[N]early nine years into what will likely become the longest armed conflict in American history, there is little consensus as to exactly what kind of war the United States is fighting.” Glabe, supra note 76, at 112.