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54 Vand. J. Transnat'l L. 1163 (2021)
The Status of State and Nonstate Actors in Postwar Hostilities: Restoring the Rule of Law to US Targeted Killing Operations

handle is hein.journals/vantl54 and id is 1207 raw text is: The Status of State and Nonstate Actors in Postwar Hostilities: Restoring the Rule of Law to US Targeted Killing Operations Claire Finkelstein * ABSTRACT With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing 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 conception of violent nonstate actors that immediately followed the 9/11 attacks. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods and President Obama's dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development. This Article focuses on the decision to treat violent nonstate actors in the war on terror as unlawful combatants, -a framework that deprives them of the traditional protections of both the Law of Armed Conflict (LOAC) and the constitutional guarantees ordinarily extended to criminal defendants. This ambiguity provided legal impunity for abuse, the impossibility of achieving convictions at trial for those detained, and an uncertain legal basis for those who are targeted rather than captured. The question of status now arises with urgency for violent state actors like Qassim Soleimani, who was killed by a US drone strike in January of 2020. This Article will argue that violent nonstate actors are more properly thought of as civilians * Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law (CERL), University of Pennsylvania. The author wishes to thank Richard Painter, Mitt Regan, Geoff Corn, and the editors of the Vanderbilt Journal of Transnational Law for comments, corrections, and conversations on the issues raised in this Article. 1163

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