Potential pitfalls of "strategic litigation" : how the Al-Aulaqi lawsuit threatened to undermine international humanitarian law
Michael W. Lewis
Host item entries:
Loyola university Chicago international law review, Vol. 9, issue 1, 2011, p. 177-186
In 2010 the American Civil Liberties Union (ACLU) filed a lawsuit that attempted to enjoin the Obama Administration from continuing to target Anwar al-Aulaqi. An integral part of the legal basis for that lawsuit was the claim that the targeting of al-Aulaqi as a member of Al-Qaeda in the Arabian Peninsula (AQAP) in Yemen was occurring "outside of armed conflict." Although the lawsuit was dismissed on procedural grounds, this short essay examines the ACLU's central legal argument that strikes in Yemen were occurring outside of armed conflict and therefore beyond the scope of IHL (International Humanitarian Law). If this proposed limitation on the scope of IHL were accepted it would effectively turn IHL on its head. Such a limitation would fundamentally undermine IHL by offering sanctuaries to groups like al Qaeda and AQAP that until now were disfavored because their conduct (targeting civilians and blending in with the civilian population) was antithetical to IHL's core purposes of protecting the civilian population from harm.