October 2, 2011

DRONE KILLS: More on the legality of the Al-Awlaki killing. “The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is ‘unwilling or unable’ to address the threat. No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years. And indeed, as the President said in his statement yesterday on the raid – no safe havens anywhere. . . . The reality, of course, is that this is not like any other armed conflict. Though the US government had firm grounds domestically and internationally to target Al-Aulaqi simply as an operational participant in a group engaged in armed conflict against the United States, as a matter of forward-looking legal policy, the US should elaborate more extensive and explicit oversight procedures in the case of targeting of US citizens, in part to ensure the domestic legitimacy of the process and in order to ensure the buy-in of the political branches.”

In the comments, I note some discussion about whether “incitement” to terrorism could constitute a sufficiently direct participation in hostilities. I express no opinion on that subject, but I’ll note that the International Tribunal For Rwanda convicted government officials for incitement to genocide and sent them to jail for 30 years. If incitement is sufficiently direct to support such a conviction by an international human-rights tribunal, then why wouldn’t it be sufficiently direct to justify a killing in self-defense? There may be a good argument in favor of this distinction, but — at least while still on my first cup of coffee — I can’t think of one offhand.

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