Chesney: Who May Be Killed? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force

Robert Chesney (Univ. of Texas - Law) has posted Who May Be Killed? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force (Yearbook of International Humanitarian Law, forthcoming). Here's the abstract:

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances. Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied. Part III then turns to objections rooted in IHL and IHRL, beginning 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, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, 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).

Comments and criticisms on this draft paper are welcome.