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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Targeting al-Awlaki and International Law

Robert Chesney's post yesterday on Lawfare blog, titled "Targeting al-Awlaki and International Law," asks the question: Does international law permit the US government to kill Anwar al-Awlaki? 

Chesney examines that question in a draft article posted here (the paper is forthcoming in the Yearbook of International Humanitarian Law).  He uses al-Awlaki as a case study that "provides an occasion to grapple with a host of pressing issues associated with the use of lethal force in the counterterrorism context."

The article proceeds as follows:

"Part I is descriptive, an attempt to establish a reasonable baseline of knowledge based on the public record concerning the nature of AQAP and its relationship to al Qaeda “central,” the activities of Anwar al-Awlaki and his relationship to AQAP, and the US government’s reported decision to authorize the use of lethal force against al-Awlaki in at least some circumstances. 

Part II turns to UN Charter issues presented by the prospect that such an attack might take place in the territory of Yemen.  Under this heading, I first discuss the issue of consent, concluding that a substantial case can be made, at least for now, that the government of Yemen has consented to the use of such force on its territory, thus overcoming an Article 2(4) objection.  I next turn to the question whether the United States could make a persuasive Article 51 self-defense argument if necessary, concluding that it can do so in not just one but two distinct ways (one specific to AQAP, the other depending on a sufficient linkage between AQAP and al Qaeda central). 

Against that backdrop, Part III reviews the implications IHL and IHRL might have for an attack on al-Awlaki.  I begin with the question whether an attack on al-Awlaki would fall within IHL’s field of application. I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, I argue that it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, I argue that it has been crossed as well with respect to the United States and the larger al Qaeda network—and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs. A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks)."

For the full text of the Lawfare article, click here.

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