U.S. Counter-terrorism Practices and International Law

By Daisy Ni (PO ’21)

Following President Trump’s vow in August to loosen restrictions on counter-terrorism measures, the White House has been preparing to dismantle Obama-era limits on drone strikes and commando raids outside conventional battlefields. Specifically, national security advisers have proposed to expand kill missions by the military and the CIA from what is currently limited to high-level militants to include foot-soldier jihadists with no special skills or leadership roles. Proposed drone attacks would also no longer require high-level vetting.

Both proposals comply with President Trump’s foreign policies; however, it is important to consider how they comply with international law as well. Though the use of force against other countries is traditionally prohibited by Article 2(4) of the United Nations Charter, the charter also establishes self-defense as an exception to its rule in Article 51. Since September 11, 2001, the purpose of self-defense for “citizens home and abroad” is indeed the principle upon which the U.S. has justified its operations in Africa and the Middle East.

The U.S. has since shifted from reactionary strikes to preemptive strikes against groups that it deems to contain a potential threat to the U.S. or its citizens.  In the context of international law, the legality of preemptive strikes represents an area that is largely unaddressed—the UN Charter condones explicitly only action that only occurs after an armed attack, and some legal experts believe reactionary action is the only measure permissible. The more widely accepted interpretation, however, suggests that Article 51 merely establishes self-defense as an inherent right, and does not directly outlaw the use of anticipatory action.

Instead of looking to the UN Charter, most states today regard the Caroline doctrine as the precedent to test the acceptability of preemptive strikes. Born from a series of diplomatic interactions between the United States and the United Kingdom in 1837, the Caroline doctrine describes the two criteria of necessity and proportionality. As Daniel Webster established, a state is required to first demonstrate that the “necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” Action also has to be proportional, and cannot be unreasonably excessive, “since the act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”

While the Trump administration’s proposals don’t violate the Caroline doctrine outright, they carry wider implications that set it up for possible misuse. The Obama administration’s previous restrictions had limited the military to target high-level militants deemed to pose a “continuing and imminent threat” to Americans, thus complying with the necessity clause of the Caroline doctrine. Trump’s move to expand this to foot-soldier jihadists with no special skills or leadership roles calls this clause into question—it is uncertain whether these low-level militants who are now targets pose a sufficient direct threat to the U.S. individually to qualify the military response. Additionally, although the Trump administration has stood by the requirement of “near certainty” that no civilian bystanders will be killed, recent human rights investigations have found incongruent results in practice. The killing of civilians as collateral damage is permissible under the Caroline doctrine under the same two conditions of necessity and proportionality. The policies proposed, however, would reduce oversight in strikes, thus increasing the likelihood of civilian casualty. If proved true, this could risk stretching the limits of the proportionality clause.

The proposals lay groundwork for expanding military presence in the world as a whole—other than in acknowledged zones of operations, they would apply in countries where the U.S. has targeted militants outside of regular combat such as Yemen and Somalia. They would also ease the expansion into other gray-zone acts of sporadic warfare to other regions in Africa, Asia and the Middle East. Under UN regulation, the U.S. would still need to obtain consent from either the Security Council or the country in question to use force.

However, the U.S. could also potentially intrude upon other territorial sovereignties using yet another grey-zone in international law. In the past, the U.S. has often justified external intervention by the “unwilling or unable” principle, which declares that victim states can use force to target non-state actors in the territory of a third state should the host state be ineffectual. Though used and accepted by multiple countries, the “unwilling and unable” test has been repeatedly negated by the International Court of Justice. Any move to increase military activity in countries without their prior agreement should thus be guided by caution and risks additional international scrutiny and consequences.

These proposals fall within President Trump’s long-term vision of broader and more frequent counterterrorism operations abroad, and signify a pattern of increasing the autonomy and authority of the Pentagon and CIA. Whether these moves are effective or legal remain uncertain, but the U.S. should remember the governance of international law and the possibility of overextension.

 

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