Using force against terrorists "outside areas of active hostilities" : the Obama approach and the Bin Laden raid revisited / Christian Schaller
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Article
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Using force against terrorists "outside areas of active hostilities" : the Obama approach and the Bin Laden raid revisited
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Christian Schaller
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English
Abstract:
More than 13 years after the launch of Operation Enduring Freedom, the focus of US counterterrorism operations has gradually shifted from Afghanistan and Pakistan to the Arabian Peninsula, Somalia and Northern Africa. The use of drones and Special Forces in these regions causes difficult problems under international law. In particular, it is often far from clear whether a specific attack or raid triggers application of the law of armed conflict. The White House, therefore, issued a policy guideline in 2013, which states that lethal force will be used ‘outside areas of active hostilities’ only against targets that pose a ‘continuing, imminent threat’ to US persons. This policy reflects a conception of the right to self-defence according to which a state may target particularly dangerous persons irrespective of their status under international humanitarian law or human rights law (‘self-defence targeting’). It is a characteristic feature of the Obama administration’s approach to pick and choose from the legal concepts of self-defence and armed conflict in order to design a flexible normative framework for its operations against Al Qaeda and other extremist groups abroad. The present article focuses on different facets of this approach and shows how both concepts are utilized to justify such operations. The killing of Osama bin Laden in May 2011 was a particularly instructive case since it raised a variety of issues under jus ad bellum and jus in bello.
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