forthcoming scholarship

January 10, 2010

“Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan”

Journal of Transnational Law & Policy, Vol. 19, 2010
U of Houston Law Center No. 2009-A-36

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust@central.uh.edu

This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality. Read the rest of this entry »

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