Fighting State Actor with the Tools of Hybridized Warfare: Can the Law of Armed Conflict Be Saved?

Document Type

Book Chapter

Publication Date

12-1-2022

Abstract

With the killing by the United States of Iranian general Qassim Soleimani, the war on terror crossed a new frontier in the use of extra-judicial lethal operations outside of armed conflict. As a state actor, Soleimani would once have been entirely off-limits as a target outside the context of a formal armed conflict between the U.S. and Iran, despite his leadership of the Quds force, an organization that lends support to violent nonstate actor groups across the Middle East. Nevertheless, the fact that the Trump Administration felt entitled to conduct a one-off strike on a state military leader using drone technology underscores the degree to which conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This chapter will argue that the rise in the use of such techniques, and the perceived relaxation of the constraints of international law in conflicts among states, is a regrettable, but foreseeable, result of a certain way of conceiving of violent nonstate actors that started immediately after the attacks on 9/11. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods as well as Obama’s dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development and ensured that the techniques of the war on terror were constrained to their original context. This chapter first addresses the legal ambiguity of targeted killing as it devolved from the Bush and Obama Administrations in the aftermath of 9/11 with respect to nonstate actors, particularly the decision to predicate the legality of targeted killings on the status of terror groups as “unlawful combatants.” This framework meant that the detainees captured in the war on terror lacked the traditional protections of the Law of Armed Conflict (LOAC), at the same time that they were deprived of the protections ordinarily extended to criminal defendants. Leaving detainees between two legal regimes provided license for their abuse as well as an uncertain legal basis for those who were targeted rather than captured in the next phase of the war. This chapter will argue that greater clarity would have resulted from considering violent non-state actors as civilians rather than combatants, an approach that is wholly in appropriate for state actors like Soleimani, whose status as a state actor should leave little doubt as to his legal status outside the context of armed conflict..

Keywords

targeted killing, state actor, asymmetric conflict, Law of Armed Conflict, LOAC, unlawful combatancy

Publication Title

Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict

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