Is There a ‘Legal Geography of War’?

One of the issues raised by drone technology and targeted killing is whether there is something like a “legal geography of war.”  Meaning, where and when does the law of war apply, and where and when is it just the Law of Ordinary Life?  Since the development of the airplane in war, the boundaries of where the fighting takes place have been expanding (naval warfare has the same capacity, but the airplane ramps it up).  But the potential geographic reach of drones, combined with the ability for them to strike in a targeted, discrete, and discreet – even covert – fashion alters the question of where the law of armed conflict should apply and certainly makes it more fraught than it used to be.

I have a new short paper up at SSRN on the path this debate took over the course of the last decade, framed as an argument between the US government (in both the Bush and Obama administrations) and a set of loose interlocutors I refer to as the critics.  It focuses on the legal geography of war question, but driven particularly by targeted killing and drone warfare.  It is short (8,000 words), aimed at a policy and lay rather than legal audience, is footnote-free in this working paper version, and will eventually show up in final form as part of an essay series from the Hoover Task Force on National Security and Law.  Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a Legal Geography of War.  Abstract below the fold.

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, in final form, will be part of an online volume published by the Hoover Institution Task Force on National Security and Law. Its 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.

(8,000 words, non-technical, and footnote-free for a general lay audience.)