The Weak Legal Bases for the Global War on Terror

Reading the US press, there seems to be a rift within the Obama administration over the limits to be respected in the war on terror. It has to do with the limits to global reach. On one side Jeh C. Johnson, general counsel of the Department of Defense has stated the US could enlarge the geographic scope of their targeting operations, aimed at locating and eliminating suspected terrorists, on the assumption that Al Qaeda and its militants are enemies of the US, and thus legitimate military targets at any moment, wherever they are. On the other Harold H. Koh, the Department of State's legal adviser, who while persuaded that the war on terror exceeds the conventional theater of operations, is more in tune with European allies and thus oriented to respecting the conventional rules of international law, at least from a formal point of view. Koh's effort is based on the juridical definition of legitimate self-defense: according to the legal adviser, the US can legitimately kill the enemy in Afghanistan and in the neighboring regions in Afghan territory. Outside the war perimeter, they can kill the alleged enemy in name of the right of states to legitimate defense, solemnly enshrined in the UN Charter. According to Koh's argument, outside the battlefield, the US can only kill those suspected terrorists who pose a grave and immediate threat to the US (and/or its interests abroad). According to Johnson's line, the US would not need a specific reason to justify the killing of a presumed terrorist: it'd be enough to prove membership, and thus militancy, in the ranks of the enemy. There would actually be an obligation to act in the case of presumed enemies located in territories either lacking military capabilities or of the will to destroy them. Until today, Koh's position has prevailed, at least theoretically. In justifying US military action in countries not at war with the States (such as Somalia and Yemen), the Obama administration has chosen the more prudent line of legal reasoning, by invoking legitimate defense for targeting outside the so-called hot battlefield. So the US can still kill where it wants because it is engaged in a war for self-defense.

In practice, there is no substantial difference from Johnson's more radical position. Koh's argument just makes physical elimination more palatable to allies and public opinion. But, in order to make target killing legitimate and based on self-defense, you need to force both the concept of "immediate" and "threat". It is hard to argue that an individual in the desert or in his own home poses an immediate danger. Also the idea of exceptionality of actions for self-defense clashes against the reality of regularity in the policy of military targeting: according to Leon Panetta, the current Secretary of Defense, "it's the only game in town". It should suffice to note that during the first year of the Obama presidency the number of drone-launched missile strikes was higher than similar operations authorized by the Bush presidency over the last three years of his mandate.

Not to speak of the case of Osama Bin Laden, killed in ally country with neither international authorization nor agreement with the sovereign government. In the future, it will be hard to tell Russia and other countries that certain actions cannot be undertaken, complaining that they are clear violations of the principles of sovereignty, the right to life, legal defense and due process.