by Travis Normand

An article appeared yesterday (Feb. 14, 2013) on the HuffingtonPost.com titled Drone Attacks Spur Legal Debate On Definition of ‘Battlefield.’

The debate concerning the geographic limits of the battlefield is not a new one.  In fact, the debate has been ongoing at least since the U.S. declared that it was engaged in a “War on Terror.”  After all, terrorist groups such as al-Qaeda are organizations and they typically have no geographic nation or state.  So, contrary to the traditional war paradigm we are used to, when the U.S. sent troops into Afghanistan to combat the al-Qaeda organization, the U.S. was not going to war with Afghanistan.

However, the author of the above referenced HuffingtonPost.com article suggests that a 2002 Drone attack in Yemen is what “blew apart notions of ‘war’ and ‘battlefield’ which has guided the application of the legal traditions, treaties and laws of armed conflict for centuries.”

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.

See article HERE

I would respectfully disagree. If the author is under the misguided impression that the U.S. is under a strict obligation to confine its operations to Afghanistan, he is mistaken. If the U.S. does, in fact, confine its military operations to a geographic territory, it is due to international sovereignty concerns and not because the LOAC mandates it. After all, the U.S. did not go to war with a geographic region (or state) and thus it would not make any sense to confine its operations in that manner.

The Authorization for Use of Military Force (AUMF) states:[1]

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In other words, the AUMF doesn’t state that the President is authorized to use all necessary and appropriate force against Afghanistan and its military forces.[2]  It is quite clear by the language of the AUMF that we were entering a military operation that wasn’t confined to any specific area.

Also, while the U.S. did confine most of its military operations (initially) to the area of Afghanistan, it was always clear that such containment was only due to the location of al-Qaeda operatives. The U.S. had military operations in several other countries other than just Afghanistan, and even designated Yemen as a “combat zone” in 2002.

Still, despite the AUMF being passed in 2001, we still have articles in 2013 that claim it was a 2002 Drone attack (which happened about one year after the AUMF was passed) that “blew apart” the notion of the battlefield.

I would actually go so far as arguing that al-Qaeda’s attack on the U.S. (on 9/11) was also “outside a traditional, recognized war zone,” and is what really “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.”  In other words, 9/11 was the day that everyone witnessed how groups like al-Qaeda have no intention of following any of the legal traditions, treaties and/or laws of armed conflict that the civilized world has been following for centuries.

While the U.S. struggles with how to conform its actions to the laws of armed conflict, groups like al-Qaeda spend their days trying to figure out the best way to use the world’s customary practice of rule following to their own strategic advantage. However, I don’t see many articles discussing how ignoring such rules and laws degrades the fabric of humanity.

The author also asks: [emphasis added]

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?

See original article HERE

The answer to his question regarding whether Iran would be justified in planting a terrorist bomb in Times Square, is absolutely not!

If the U.S. were to target a “Taliban” fighter who had crossed the border into Iran, one could argue (I guess) that Iran is justified in using the rule of self-defense.  However, such an argument would be a “stretch” as the U.S. was not targeting Iran.  Further, the rule of self-defense found in the United Nation’s charter reads:[3]

Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

In other words, after the U.S. targets a Taliban fighter who happens to be in Iran, Iran would then have to argue that it was using its right of self-defense because there was an armed attack against a member of the United Nations. This member would have to be Iran, as the Taliban is not a member of the United Nations (obviously).

Further, in continuing to answer the author’s question of whether or not Iran could place a bomb in Times Square, even if Iran could successfully argue the ability to use the right of self-defense, it would never be allowed to use a “terrorist” bomb against a non-military target (i.e. Times Square). Why?  Because planting a terrorist bomb (as opposed to a bomb used by the Iran Military) is considered a terrorist bomb due to its intended target (i.e. civilians in Times Square). Civilians, in and of themselves, are never a legitimate military target and it is thus illegal to target and attack them (indiscriminately). Such an act, if allowed, would blow apart the notions of war which have guided the application of the legal traditions, treaties and laws of armed conflict for centuries.  

Surely the author is not advocating that such a terrorist attack would ever be considered justifiable?  I should hope not.

* * * * *

End notes:

[1] The Authorization for Use of Military Force (AUMF), 115 STAT. 224, Public Law 107-40 — Sept. 18, 2001, http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf

[2] See generally: The Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub.-L 107-243, 116 Stat. 1498, Oct. 16, 2002, http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Iraq_Resolution_of_2002 (Authorizing the use of military force against Iraq).

[3] Right of Self Defense – United Nations Charter, Chapter VII, Article 51, http://en.wikipedia.org/wiki/Self-defence_in_international_law