Albany Government Law Review

As the war in Afghanistan dies down, some within the Government of the United States and lawyers within the U.S. Armed Forces will most likely reconsider whether a law of war paradigm would be relevant with respect to future drone targetings of members of al Qaeda, its associates, and other non-state terrorist groups that operate in Afghanistan and in other parts of the world. With respect to an alternative legal basis for drone targetings under the international law of self-defense, they will also most likely reconsider how the international law of self-defense should be implemented in case of non-state terrorist attacks emanating from within a foreign state. In particular, detailed attention is likely to continue regarding who and what can be targeted in response to new and ongoing terroristic non-state actor armed attacks on U.S. embassies, U.S. military and other U.S. nationals abroad and across our borders and what criteria and features of context should be considered when making a targeting decision. This article addresses whether the laws of war apply to use of measures of armed force against members of al Qaeda, the propriety of self-defense targetings of non-state actors in a foreign state, who and what can be targeted under the law of self-defense, criteria for operationalizing choice with respect to when and how to target, and certain future types of drones that might be utilized. Also addressed are reasons why human rights law and the U.S. Constitution do not prohibit legitimate self-defense targetings. A final section addresses limitations that exist under a law enforcement paradigm and why measures of self and collective self-defense are not simplistically measures of domestic law enforcement.