Altering the Playing Field: The U.S. Redefinition of the Use-of-force

Abstract

This article will interrogate the degree to which the Obama administration has continued, even at times inadvertently, the Bush administration's challenge on international law. Notwithstanding the Obama administration's bold pronouncements pertaining to reversing its predecessor's policies, little has actually changed when it comes to how the USA considers using military force. As a means to unpack this transition, this article will firstly consider the apparent continuum of use-of-force policies from the Bush to the Obama administration, specifically: the American conflation in the line between pre-emptive and preventive selfdefence options; the sustained post-September 11 legacies that continue to lower thresholds towards using military force; and how this ultimately contributes to the erosion of international law in this area. Secondly, this article presents a critical contextualization of Obama's drone programme and its legal arguments in relation to his administration's overall use-of-force policy, focusing on jus ad bellum standards. In light of the centrality of targeted killings under Obama, our article will pay particular attention to the contradiction this poses with regard to his reluctance to use military force in relation to ongoing conflicts in Libya and Syria, while also looking at recent adjustments pertaining to use-of-force pronouncements against the Islamic State (IS). The article lastly considers what this will mean for international use-of-force thresholds and the future of the general prohibition on the use-of-force in the context of new and emerging technologies and theaters should the USA continue to skew and adjust its use-of-force policies on when, how, against who and where to use such force.

Autonomous Weapons Systems and International Norms

“…Drones are not prohibited as a weapons category: their lawful use in warfare therefore depends on whether they are used in accordance with the requirements of international humanitarian law (IHL), such as proportionality or distinction. Without going into the legal details at this point, access to drone technology appears to have made so-called targeted killing seem an 'acceptable' use of force for some states, thereby deviating significantly from previous understandings (Haas and Fischer 2017;Bode 2017a;Warren and Bode 2014). Indeed, technologies have long shaped and altered warfare and therefore how force is used (Ben-Yehuda 2013).…”

New technologies and legal justification: The United Kingdom’s use of drones in self-defence

“…Expanded conceptions of imminence and self-defence were first advanced by the United States, particularly during the George Bush administration that developed notions of preventive and pre-emptive actions in response to terrorist threats (see Warren and Bode 2015 for an extensive discussion of the concept and its origins). The concept became part of the 2002 US National Security Strategy (US Government 2002) and numerous speeches and government documents further established the United States' line of argumentation towards a general right of pre-emption.…”

Utjecaj prijetnji modernog doba na značenje neposredno predstojećeg napada u kontekstu prava države na samoobranu

“…Međutim, čak i tada, argument neposredno predstojećeg napada iznijeli su pravni autori, dok je Izrael tvrdio da je djelovao u odnosu na postojeći oružani napad. 33…”