Extraterritorial lethal targeting : deconstructing the logic of international law
Michael N. Schmitt
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Columbia journal of transnational law, Vol. 52, no. 1, 2013, p. 77-112
Caustic debates over extraterritorial targeting, which is usually conducted by remotely piloted aircraft (so called "drones"), have plagued the international law community for a number of years. Although that topic merits attention, the discourse has been marked by an unusually high degree of counter-normative and counter-factual assertions. In particular, pundits often ask the wrong questions or answer the right ones by reference to the wrong body of law. The result is growing confusion, as analytical errors persist and multiply. Despite public perceptions, the issue is not the drones themselves, for the relevant legal rules and principles apply equally to any method or means of warfare (drone, manned aircraft, artillery, cruise missile, special forces team, etc.). Instead, two factors common to all such operations lie at the heart of their legality, or lack thereof: 1) extraterritoriality, and 2) lethality. The goal of this Essay is to deconstruct the logic of international law relating to so-called "targeted killings" by sharply delineating the legal questions they raise and offering a coherent analytical framework for examining them. No attempt is made to definitively resolve the questions themselves; the framework is methodological, not substantive.