¹ Throughout this essay I will use “U.S. drone strikes” or “drone policy” as a shorthand way of referring to the cross-border use of force by the United States outside of traditional, territorially-defined battlefields. Although it is U.S. drone strikes in Pakistan, Yemen, and Somalia that have triggered most controversy over such cross-border uses of force, the arguments in this essay apply equally to cross-border uses of force that do not involve unmanned aerial vehicles, such as raids carried out by U.S. Special Operations Forces or CIA paramilitary personnel. To a significant extent, the arguments in this essay also apply to U.S. detention policy, which presents overlapping issues.

² See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, International Court of Justice (ICJ) Reports 1986, 14; “Separate Opinion of President Nagendra Singh,” p.153, noting that international law on the use of force is “the very cornerstone of the human effort to promote peace in a world torn by strife.”

³ See, generally, Beaulac, Stéphane, “The Rule of Law in International Law Today,” in Palombella, Gianluigi and Walker, Neil, eds., Relocating the Rule of Law (Portland, Ore.: Hart, 2009)Google Scholar, p. 201 (comparing formal theories, which are “concerned with how the law is made and its essential attributes [clear, prospective]” with substantive theories, “concerned not only with the formal precepts but also with some basic content of the law [justice, morality]”).

⁴ Compare Chesterman, Simon, “An International Rule of Law?” American Journal of Comparative Law 56, no. 2 (2008)CrossRefGoogle Scholar, p. 359 (calling rule of law “a tool with which to protect human rights, promote development, and sustain peace”), with Pistor, Katharina, “Advancing the Rule of Law: Report on the International Rule of Law Symposium Convened by the American Bar Association November 9–10, 2005,” Berkeley Journal of International Law 25, no. 1 (2007)Google Scholar, p. 41 (calling rule of law a “fundamental aspiration of mankind”).

⁵ Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, (S/2004/616), at daccess-dds ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement

⁶ Henkin, Louis, How Nations Behave, 2^nd ed. (New York: Columbia University Press, 1979)Google Scholar, p. 47 (emphasis omitted).

⁷ UN General Assembly, Resolution 67/1, “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels,” September 24, 2012, UN document A/RES/67/1, paragraphs 2–3.

⁸ UN Report of the Secretary-General, “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,” October 12, 2011, UN document S/2011/634.

⁹ Individual humans also vary greatly, of course, but humans, unlike states, are not entirely artificial constructs.

¹⁰ UN Charter, Article 23, para. 1 (creating a Security Council comprised of only 15 member states); and at Article 27, para. 3 (granting a veto power to only five states).

¹¹ For a different perspective, see David Bosco, “An Elite Security Council Is A More Effective One,” NPR, September 24, 2009, www.npr.org/templates/story/story.php?storyId=113163910, discussing criticisms of the Security Council as “elitist” and arguing in favor of the current Security Council structure.

¹² These issues have been well-discussed elsewhere. See, generally, Chesterman, “An International Rule of Law?,” and Beaulac, “The Rule of Law in International Law Today.”

¹³ Chesterman, “An International Rule of Law?,” p. 342. This is a familiar concept in the U.S. legal system: consider the ex post facto clause of Article I, Section 9 of the Constitution, or the court-made “void-for-vagueness” doctrine. See Connally v. General Construction Co., 269 U.S. 385, 391 (1926) (“[T]he terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.”).

¹⁴ Since international law remains, in its current incarnation, a product of state consensus, this process doesn't inevitably doom the rule of law—ultimately, if enough states shift their positions, it may end up creating robust new norms and new law. The rule of law is most threatened when an old consensus breaks down and a new consensus has yet to emerge.

¹⁵ On a related note, Jacob Cogan argues that, in the absence of highly developed international law enforcement mechanisms, “operational noncompliance” is a good thing. Cogan, Jacob Katz, “Noncompliance and the International Rule of Law,” Yale Journal of International Law 31 (2006)Google Scholar, p. 209. Operational noncompliance means that states will sometimes take it upon themselves, individually or collectively, to enforce important legal norms—even if doing so means violating legal norms of their own—when the international legal order is otherwise unable to do so (ibid., pp. 195–96). Cogan's view is an outlier; as he concedes, most international legal thinkers support a policy of strict, formal compliance (ibid., pp. 191–92, citing, inter alia, Henkin, , “International Law: Politics, Values and Functions,” Recueil Des Cours 216 (1989)Google Scholar, p. 86: “In the words of Louis Henkin, what matters most is the creation of an ‘international culture of compliance.’”).

¹⁶ Extreme examples include the Trayvon Martin killing and Bernhard Goetz. See Harry Siegel and Filipa Ioannou, “Bernard Goetz on George Zimmerman: ‘The Same Thing Is Happening,’” Daily Beast, July 12, 2013, www.thedailybeast.com/articles/2013/07/12/bernhard-goetz-on-george-zimmerman-the-same-thing-is-happening.html. When such cases are outliers, there is no crisis; if such cases become commonplace, there is a problem.

¹⁷ Rosa Brooks, “What's Not Wrong With Drones?” Foreign Policy, September 5, 2012, www.foreignpolicy.com/articles/2012/09/05/whats_not_wrong_with_drones?page=0,0.

¹⁸ “Sources: U.S. Kills Cole Suspect,” CNN, November 5, 2002, edition.cnn.com/2002/WORLD/meast/11/04/yemen.blast/index.html?_s=PM:WORLD; “CIA ‘Killed al-Qaeda Suspects’ in Yemen,” BBC News, November 5, 2002, http://news.bbc.co.uk/2/hi/2402479.stm.

¹⁹ Amitai Etzioni, “The Great Drone Debate,” Military Review (March/April 2013), p. 10 (citing: “The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004–2013,” New America Foundation, February 4, 2013, counterterrorism.newamerica.net/drones).

²⁰ Note that although controversy has focused on drone strikes outside of hot battlefields, the majority of U.S. strikes have occurred in “traditional” zones of armed conflict: Iraq, Libya, and, in particular, Afghanistan. See Chris Woods and Alice K. Ross, “Revealed: US and Britain Launched 1,200 Drone Strikes in Recent Wars,” Bureau of Investigative Journalism, December 4, 2012, www.thebureauinvestigates.com/2012/12/04/revealed-us-and-britain-launched-1200-drone-strikes-in-recent-wars.

²¹ Between January 1, 2013 and August 23, 2013, there have been an estimated 16 drone strikes in Pakistan (“The Year of the Drone,” New America Foundation).

²² Drones Team, “Yemen strikes visualized,” Bureau of Investigative Journalism, July 2, 2012, www.thebureauinvestigates.com/2012/07/02/yemen-strikes-visualised/.

²³ Dylan Matthews, “Everything You Need to Know About the Drone Debate, in One FAQ,” Wonkblog, Washington Post, March 8, 2013, www.washingtonpost.com/blogs/wonkblog/wp/2013/03/08/everything-you-need-to-know-about-the-drone-debate-in-one-faq/.

²⁴ Ryan J. Reilly, “CIA Drone Strikes Case: Court Finds It Not ‘Plausible’ That Agency Has No Role,” Huffington Post, March 15, 2013, www.huffingtonpost.com/2013/03/15/cia-drone-strikes_n_2883727.html.

²⁵ Barack Obama, “Obama's Speech on Drone Policy,” New York Times, May 23, 2013, www.nytimes.com/2013/05/24/us/politics/transcript-of-obamas-speech-on-drone-policy.html?pagewanted=all.

²⁶ President Obama reiterated this belief in his May 2013 speech discussing drone warfare (ibid.).

²⁷ Obama, “Obama's Speech on Drone Policy.”

²⁸ See statement of Attorney General Eric Holder: “Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.” Eric Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law,” United States Department of Justice website, March 5, 2012, www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html; see also John O. Brennan, “Strengthening Our Security by Adhering to Our Values and Laws,” (remarks at Harvard Law School, Cambridge, Mass., September 16, 2011), White House, Office of the Press Secretary, www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an, in which he says: “we are at war with al-Qa'ida. In an indisputable act of aggression, al-Qa'ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded just last weekend, al-Qa'ida seeks to attack us again. Our ongoing armed conflict with al-Qa'ida stems from our right—recognized under international law—to self-defense.”

²⁹ See Harold Hongju Koh, “The Obama Administration and International Law,” (speech, Annual Meeting of the American Society of International Law, Washington, D.C., March 25, 2010), U.S. Department of State website, www.state.gov/s/l/releases/remarks/139119.htm, in which he says, “as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law.”

³⁰ UN Charter, Articles 39 and 42.

³¹ UN Security Council, Resolution 1368 (2001), September 12, 2001, UN document S/RES/1368 (2001).

³² Ibid.

³³ See UN Security Council, Resolution 1373 (2001), September 28, 2001, UN document S/RES/1373 (2001); Resolution 1377 (2001), November 12, 2001, S/RES/1377 (2001); Resolution 1378 (2001), November 14, 2001, S/RES/1378 (2001); Resolution 1383 (2001), December 6, 2001, S/RES/1383 (2001); and Resolution 1386 (2001), December 20, 2001, S/RES/1386 (2001).

³⁴ But see Quigley, John, “The Afghanistan War and Self-Defense,” Valparaiso University Law Review 32, no. 2 (2003), pp. 549–50Google Scholar (arguing that the war in Afghanistan was not a legitimate exercise of self-defense and was not authorized by Security Council resolutions).

³⁵ See “About ISAF,” International Security Assistance Force website, last visited August 30, 2013, www.isaf.nato.int/history.html; UN Security Council, Resolution 1386 (2001).

³⁶ The language of the UN Charter, Article 51.

³⁷ UN Security Council, Resolution 1373 (2001).

³⁸ Take, for instance, the Iraq War. In the period leading up to the American invasion of Iraq, President George W. Bush stated that Iraq was part of an “axis of evil” that supported terrorism. George W. Bush, “Text of President Bush's 2002 State of the Union Address,” Washington Post, January 29, 2002,www.washingtonpost.com/wp-srv/onpolitics/transcripts/sou012902.htm: “States like these [North Korea, Iran, Iraq], and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States.”

³⁹ UN Charter, Article 51 (emphasis added).

⁴⁰ Cheng, Tai-Heng and Valaitis, Eduardas, “Shaping an Obama Doctrine of Preemptive Force,” Temple Law Review 82 (2009)Google Scholar, p. 749.

⁴¹ A prime example is the wide acceptance of the principle stemming from the Caroline affair: that a state may use preemptive force only where the “necessity of self-defense [is] instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See “British-American Diplomacy: The Caroline Case,” Yale Law School, Avalon Project, last visited August 30, 2013, www.avalon.law.yale.edu/19th_century/br-1842d.asp; also Kofi Annan, UN Report of the Secretary-General, “In Larger Freedom: Towards Development, Security and Human Rights for All,” March 21, 2005, UN document A/59/2005, paragraphs 124–25 (based on para. 188 of the Report of the High-level Panel on Threats, Challenges and Change, December 2, 2004, UN document A/59/565); and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports, par. 201, 2005. See www.icj-cij.org/docket/index.php?p1=3&p2=3&k=51&case=116&.

⁴² See “Department of Justice White Paper: Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force,” Department of Justice, released February 4, 2013, www.msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

⁴³ Ibid., p. 7.

⁴⁴ Ibid., p. 8 (emphasis added).

⁴⁵ Ibid.

⁴⁶ In effect, the concept of “imminence” becomes conflated with status or identity. Under the Justice Department's logic, since any “operational leader” of al-Qaeda or its “associates” is, by definition, always presenting an imminent threat, he can always be the lawful target of armed force. This appears to collapse the international law of self-defense, which does not permit status-based targeting, into the law of armed conflict, which does. Also, imagine the consequences if such an interpretation of imminence were imported into domestic criminal law. In most domestic jurisdictions, the use of lethal force in self-defense is permitted only to ward off urgent threats. (As the U.S. Model Penal Code puts it, the force used must be “immediately necessary for the purpose of protecting [the actor] against the use of unlawful force by [another] person on the present occasion.” Model Penal Code § 3.04. Emphasis added.). Imagine the consequences if this shifted to a rule stating that any person who lacks complete confidence in his future safety can use force against anyone he believes might someday do him harm.

⁴⁷ See the Nicaragua case, para. 176, with discussion of the “specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law”; and Judith Gardam, Necessity, Proportionality and the Use of Force By States (New York: Cambridge University Press, 2004).

⁴⁸ President Obama has stated that “America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute” (Obama, “Obama's Speech on Drone Policy”); but no one outside the U.S. executive branch has any real ability to determine whether the strikes are necessary.

⁴⁹ This conundrum has led some commentators to propose a new jus ad vim, a set of rules concerning uses of force that fall short of armed conflict. See Brunstetter, Daniel and Braun, Megan, “From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force,” Ethics & International Affairs 27, no. 1 (2013)CrossRefGoogle Scholar: “While war used to be easily defined as a zone of combat where lethal force was justified (to be distinguished from a zone of peace, where it was not), the struggle against terrorism has created ‘in-between spaces’ of moral uncertainty where force is used on a consistent and limited scale, but war is not declared.”

⁵⁰ Anthony Dworkin, “Drones and Targeted Killing: Defining a European Position,” European Council on Foreign Relations, July 2013, p. 7, www.ecfr.eu/page/-/ECFR84_DRONES_BRIEF.pdf.

⁵¹ New uncertainties would eventually arise—perhaps even new uncertainties created by judicial language—but these too can be clarified or corrected via subsequent judicial decisions, or via new legislation made in response to judicial decisions.

⁵² A Pakistani court has rejected this argument and held that U.S. drone strikes within Pakistan's borders violate international law. See Jonathan Horowitz and Christopher Rogers, “Case Watch: A Court in Pakistan Addresses U.S. Drone Attacks,” Open Society Foundations, May 28, 2013, www.opensocietyfoundations.org/voices/case-watch-court-pakistan-addresses-us-drone-attacks. The court's decision is available at: www.peshawarhighcourt.gov.pk/images/wp%201551-p%2020212.pdf.

⁵³ See generally Rosa Brooks, “Be Careful What You Wish For: Changing Doctrines, Changing Technologies, and the Lower Cost of War,” American Society of International Law Proceedings 106 (2012); Brooks, “Strange Bedfellows: The Convergence of Sovereignty-Limiting Doctrines in Counterterrorist and Human Rights Discourse,” Georgetown Journal of International Affairs 13, no. 2 (2012).

⁵⁴ Cf. Brooks, , “Lessons for International Law From the Arab Spring,” American University International Law Review 28 (2013), pp. 107–12Google Scholar (discussing the Responsibility to Protect doctrine).

⁵⁵ See, e.g., Cogan, “Noncompliance and the International Rule of Law,” p. 209 (arguing that a state's unilateral acts of police work—which he calls “operational noncompliance”—can sometimes increase the rule of law when the international community otherwise lacks institutions capable of enforcing the law).

⁵⁶ See Brunstetter and Braun, “From Jus ad Bellum to Jus ad Vim.”

⁵⁷ See Hegel, G. W. F., Hegel on Tragedy, Anne, and Paolucci, Henry, eds. (Greenwood, Conn.: Greenwood: 1978)Google Scholar.