Targeted Killing and Drone Warfare : How We Came to Debate Whether There is a ‘Legal Geography of War’

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare. The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.” Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan