WASHINGTON -- After a CIA Predator drone released its guided bomb high over Yemen on Nov. 3, 2002, the resulting explosion did more than kill six suspected al Qaeda terrorists riding in the targeted car.
This strike, the first by an armed drone outside a traditional, recognized war zone, also blew apart long-held notions of "war" and "battlefield" which had guided the application of the legal traditions, treaties and laws of armed conflict for centuries.
Until that day, armed drones had been used only in Afghanistan, easily identifiable as a traditional battlefield or war zone because it had supported al Qaeda's 9/11 plotters and the U.S. armed response was justifiable self-defense. Any casual observer could see a war was underway.
Yemen was different. The White House was not sending tens of thousands of troops, and there was no solemn Oval Office speech summoning the nation to battle there. However, though few knew it at the time, earlier that year Yemen had been officially designated as a "combat zone" making the killings legal, at least in the eyes of the CIA and the White House of George W. Bush.
But ever since that first "non-battlefield" drone strike, generals and legal scholars, pundits and politicians have argued passionately about what, exactly, constitutes an armed conflict, or a war zone, or a battlefield, and what is outside armed conflict.
The distinction matters. "Inside an armed conflict, you are allowed to kill people without warning. Outside, you are not," says Notre Dame law professor Mary Ellen O'Connell, a specialist in international laws of war and conflict. "That makes it pretty important to know whether you're on a battlefield or not."
And not just if you're standing on a battlefield. As difficult as it is to pin down the law of armed conflict, "it's really important to raise these questions, because we've been lulled since 9/11 into the sense that our government has the ability to decide through its intelligence agencies who is a bad guy and to kill him and the people around him," O'Connell told The Huffington Post. "I don't want to see them drag the law down and lose the world as a place in which the law is held as a high standard."
Difficult questions about international law are boiling up because of the Obama administration's accelerating use of armed drones against what it says are suspected terrorists in Pakistan, Yemen and Somalia, and potentially elsewhere as well.
In his State of the Union address Tuesday, President Obama seemingly acknowledged the growing public unease about the program's troubling secrecy and whether the strikes are justified and legal. He would, he promised, be "even more transparent" about how the strikes comply with the law.
That vague wording promises that the bitter disagreements over what the law says, and how it applies, are only going to get more heated.
"I don't think we are ever going to have a precise answer," says Laurie R. Blank, director of the International Humanitarian Law Center at Emory University School of Law and the author of several books on war and international law. In the long history of warfare, there have been clear-cut cases where existing law applies, mostly when two governments are at war in a geographically defined area.
"But the nature of the world today is that it makes it difficult to put war into neat and tidy packages," Blank says.
War and the law have come a long way from that muddy day in October almost 600 years ago when British infantry and archers memorably clashed with French knights near the Normandy village of Maisoncelles. It was a modest, neatly-defined battle, or armed conflict: the belligerents were drawn up at either end of a small wheat field; the bristling battle lines were barely 1,000 yards apart, and when the carnage was over in a few hours, a pair of professional referees declared British King Henry V the winner and named the battle Agincourt, after a nearby castle.
By contrast, many of today's conflicts range over time and space, and belligerents morph from terrorist to civilian to warrior. Do a few suicide bombings in Islamabad define a war zone? Does the taking of hostages at an Algerian gas plant constitute an international armed conflict? Does a skyjacking plot conceived in Afghanistan and planned in Germany, which kills 3,000 people in New York and Washington, create legal war zones or armed conflicts in all four places? What if one of the plotters is hiding in Cleveland?
How far does the concept of self-defense go? Can someone just declare an area to be a free-fire "battlefield"? If the United States is at war with terrorists, and there are terrorists inside the United States, can they be targeted with armed drones? If a Taliban sneaks across the Afghan border with Iran, can the U.S. target him there? And is Iran then justified under the U.N. rule of self defense to plant a terrorist bomb in Times Square?
Could an al Qaeda terrorist protect himself by becoming an American citizen?
These are among the questions that remain for the Obama White House to clear up. But there are no simple answers.
The administration has argued, for instance, that in some places like Paris, or Cleveland, the police can handle an al Qaeda suspect as a matter of law enforcement. But when a terrorist is operating in a place like Yemen, where the government "is unable or unwilling to suppress the threat," the president has the authority to order a strike, according to the Department of Justice white paper on the legal basis for drone attacks, which surfaced last week.
That explanation -- that killing is okay in a "weak" state -- hardly quieted the debate on Capitol Hill.
If geography doesn't settle the matter of what is an armed conflict, what does? The International Committee of the Red Cross, the independent, neutral organization which oversees the 1949 Geneva Conventions and associated international humanitarian law, recognizes two types of armed conflict: international conflict, between two nations, and "non-international conflict," involving a state and an armed group, or two armed groups -- basically everything else but international conflict.
According to the ICRC, to qualify as a non-international armed conflict, the fighting must be protracted and intense. As it is, for example, in Afghanistan.
Given that the fighting between the United States and anyone in Yemen is neither protracted nor intense -- but rather consists of sporadic drone attacks and other targeted killings -- it would seem that the U.S. drone attacks in Yemen do not qualify and thus are illegal.
That's the argument advanced by O'Connell, and it was noted and abruptly dismissed by the Obama lawyers who wrote the white paper. Their argument was not that the fighting was protracted and intense. They argued that the law doesn't apply.
"There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict," the anonymous authors of the white paper wrote.
This back-and-forth argument, about whether a conflict can be defined by its battle space or intensity, is irrelevant, says Geoffrey Corn, a career Army officer who served as the senior Army advisor on the law of war. A conflict ought to be defined by the threat, he told The Huffington Post.
"Trying to define the military hot zone is inconsistent with military logic, with the history of warfare and inconsistent with the laws of armed conflict," said Corn, who teaches at South Texas College of Law, in Houston. "Plus, it invests your opponent with the perverse incentive to conduct operations from some place not involved in the struggle, in order to gain immunity." In other words, to skip across the border into sanctuary.
According to Corn, the idea of a geographical battle zone was dismissed in 1982, when the Argentine cruiser Belgrano was sunk by British forces during the Falklands War. While the Argentines claimed the attack was a war crime because the cruiser was not in the Falklands exclusion zone and had in fact turned away from the British fleet, London asserted it was legal because once Britain and Argentina engaged in hostilities, any target was fair game, no matter where.
Needless to say, legal scholars and others are still bitterly arguing over the Belgrano case.
History aside, Corn says the issue is that the current nature of U.S. conflicts is unprecedented. "The problem is that we've never really dealt with this issue of transnational armed conflicts, such as what we're engaged in now," he says, "and it definitely raises troubling questions, like how do we decide who the enemy is, and does the law allow you to go into somebody else's territory and kill him?"
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